Stallings v. City of Johnston City et al

Filing 22

ORDER granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim. Plaintiff's requests for punitive damages contained in Counts IV and V are stricken. In all other respects, defendants' motion is denied.Signed by Chief Judge David R. Herndon on 11/4/2013. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAYNE STALLINGS,
Plaintiff,
v.
CITY OF JOHNSTON CITY,
municipal corporation, and JIM
MITCHELL, in his individual and
official capacity, and GREG
YELENCICH, in his individual and
official capacity,
Defendants.

Case No. 13-cv-422-DRH-SCW
MEMORANDUM and ORDER

HERNDON, Chief Judge
I.

Introduction

Now before the Court is defendants City of Johnston City’s (Johnston City),
Jim

Mitchell’s

(Mitchell),

and

Greg

Yelencich’s

(Yelencich)

(collectively,

defendants) motion to dismiss plaintiff Jayne Stallings’ (Stallings) amended
complaint (Doc. 15). Based on the following, the Court GRANTS in part and
DENIES in part defendants’ motion.
II.

Background and Allegations

Johnston City employed Stallings as the Water Office Supervisor from
March 28, 2000, until December 18, 2012, and a Collective Bargaining contract
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governed her position (Doc. 4, ¶¶ 11-13). On October 27, 2011, Mitchell (Mayor
of Johnston City) and Yelencich (Water Alderman of Johnston City), Stallings’
supervisors, informed Stallings “through a single page of paper” that she was
suspended without pay due to suspicion and possible evidence of money missing
from the water/sewer department, and further wrote: “There will be no further
discussion of this matter now!” (Doc. 4, ¶ 15). Stallings was not provided with an
explanation or hearing regarding the basis of her suspension without pay (Doc. 4,
¶ 17).

Stallings’ suspension lasted over a year, from October 27, 2011, until

December 18, 2012, when a letter from Mitchell informed her of her termination
(Doc. 4, ¶ 20). Mitchell did not provide Stallings any alleged facts concerning her
termination (Doc. 4, ¶ 21). Further, Stallings alleges Mitchell and Yelencich made
public, false, and defamatory statements that Stallings committed criminal acts
(Doc. 4, ¶¶ 24-27).
Based upon the above alleged actions of Johnston City, Mitchell, and
Yelencich, Stallings filed this action on May 1, 2013 (Doc. 2). On May 6, 2013,
Stallings filed a five-count amended complaint (Doc. 4). The amended complaint
is comprised of Counts I, II, and III, alleging Johnston City (“Municipal Liability”),
Mitchell

(“Individual

Capacity”),

and

Yelencich

(“Individual

Capacity”),

respectively, deprived Stallings of her property and liberty rights without due
process; and Counts IV and V, against Mitchell and Yelencich, respectively, for
intentional infliction of emotional distress (IIED).

Page 2 of 15

Defendants argue Counts I-III fail to adequately allege the elements of a due
process claim. As for Counts IV and V, Mitchell and Yelencich argue Stallings fails
to adequately allege extreme or outrageous conduct. Alternatively, Counts IV and
V describe acts that are absolutely privileged, and/or for which Mitchell and
Yelencich are immune from tort liability and punitive damages.
III.

Legal Standard

A Rule 12(b)(6) motion challenges the sufficiency of the complaint to state a
claim upon which relief can be granted. Hallinan v. Fraternal Order of Police
Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court
explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule
12(b)(6) dismissal is warranted if the complaint fails to set forth “enough facts to
state a claim to relief that is plausible on its face.”
Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662 (2009))
retooled federal pleading standards, notice pleading remains all that is required
in a complaint. “A plaintiff still must provide only ‘enough detail to give the
defendant fair notice of what the claim is and the grounds upon which it rests
and, through his allegations, show that it is plausible, rather than merely
speculative, that he is entitled to relief.’” Tamayo v. Blagojevich, 526 F.3d 1074,
1083 (7th Cir. 2008) (citations omitted).
In making this assessment, the district court accepts as true all well-pled
factual allegations and draws all reasonable inferences in the plaintiff's favor. See
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Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church
of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007).
With these principles in mind, the Court turns to Stallings’ amended
complaint.
IV.

Analysis

a. Counts I, II, and III: Due Process
Counts I, II, and III allege that Stallings’ suspension and termination
without a hearing, and Mitchell and Yelencichs’ public statements, deprived
Stallings of constitutionally protected property and liberty interests without due
process. Defendants contend that Stallings fails to properly allege the elements of
a due process claim.
i. Property Interest
A cause of action for a procedural due process violation requires a plaintiff
to allege “a cognizable property interest, a deprivation of that interest, and a
denial of due process.”

Palka v. Shelton, 623 F.3d 447, 452 (7th Cir. 2010)

(citing Hudson v. City of Chicago, 374 F.3d 554, 559 (7th Cir. 2004)).
Defendants’ arguments focus on whether Stallings has adequately alleged a
cognizable property interest.
A property interest in continued employment can be created by: 1) an
independent source, i.e., state law securing certain benefits; or 2) a clearly
implied promise of continued employment. Id. (citing Phelan v. City of Chicago,
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347 F.3d 679, 681 (7th Cir. 2003)). “[E]ntitlement to continued employment,”
means that a plaintiff must have “a legitimate claim of entitlement not to lose a
valuable governmental benefit except for cause.” Id. (quoting Lee v. County of
Cook, 862 F.2d 139, 141 (7th Cir. 1988)).
Stallings’ amended complaint alleges a “Collective Bargaining contract”
(CBA) governed her position with Johnson City (Doc. 4, ¶ 13). The Supreme
Court and the Seventh Circuit have noted that CBAs only create a contract for
employment in rare cases. See Krieg v. Seybold, 481 F.3d 512, 519-20 (7th Cir.
2007); see also J.I. Case Co. v. N.L.R.B., 321 U.S. 332, 334-35 (1944) (stating
that a CBA is not “a contract of employment except in rare cases; no one has a job
by reason of it and no obligation to any individual ordinarily comes into existence
from it alone”)). Thus, “[w]hen a plaintiff alleges that the due process entitlement
arises from a collective-bargaining agreement, he [or she] must identify specific
terms of the agreement that contained a promise of continued employment.”
Palka, 623 F.3d at 452 (citing Krieg, 481 F.3d at 520).
Defendants argue that because Stallings fails to attach the relevant CBA to
her amended complaint or identify any provision within the agreement that would
give rise to a constitutionally protected property interest, her claims are
insufficient. In response, Stallings attaches a copy of the CBA (Doc. 18-1). 1
Stallings cites Article 12: Discharges and Suspensions, which states:

1

Although the parties do not raise the issue, the Court notes that it must convert a Rule 12(b)(6)
motion to one for summary judgment to consider materials outside the pleadings. See Fed. R. Civ.
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No employee covered by the terms of this Agreement shall be
discharged without just cause
.

.

.

An employee may be suspended for up to five working days for
just cause.
(Doc. 18-1, p. 9).
Assuming Stallings’ assertions to be true, she was suspended for over a
year without pay, a hearing, or even an explanation. Thereafter, she was
terminated without a hearing. Stallings has cited a specific provision of the CBA
which demonstrates Stallings has adequately alleged a “legitimate claim of
entitlement not to lose a valuable governmental benefit except for cause.” Lee, 862
F.2d at 141. Stallings has thus adequately alleged a property interest in continued
employment.
Defendants further argue that Stallings must allege she has exhausted her
administrative remedies. Defendants argue exhaustion of remedies is required to
bring a due process claim under these circumstances, “because remedies under a
CBA grievance procedure provide adequate due process.” Defendants state that
Stallings met with defendants prior to her termination and that there is a union
grievance pending.
P. 12(d); R.J. Corman Derailment Servs., LLC v. Intl. Union of Operating Eng’rs., Local Union
150, 335 F.3d 643, 647 (7th Cir. 2003). However, when the moving party presents “concededly
authentic” documents referred to in the complaint and central to its claims, a district court is not
required to convert the motion. Santana v. Cook County Board of Review, 679 F.3d 614, 619
(7th Cir. 2012); Hecker v. Deere & Co., 556 F.3d 575, 582-83 (7th Cir. 2009); Tierney v. Vahle,
304 F.3d 734, 738 (7th Cir. 2002); see also Fed. R. Civ. P. 10(c). The Court finds it is not
required to convert defendants’ motion to one for summary judgment to consider the CBA.
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Defendants’ arguments concerning the adequacy of the CBA’s grievance
procedures demonstrate that they have lost sight of the task at hand. This case is
at the dismissal stage. Defendants have not provided the Court with any authority
demonstrating exhaustion of administrative remedies is a required element of
Stallings’ claims. Defendants’ reliance on Winston v. U.S. Postal Serv., 585 F.2d
198, 210 (7th Cir. 1978), in which the Seventh Circuit affirmed a grant of
summary judgment against the plaintiff finding the grievance procedures at issue
did not violate due process, is misplaced. We are not yet at the summary
judgment stage. Assuming the truth of Stallings’ allegations and drawing all
inferences in her favor, she has adequately alleged a deprivation of her continued
interest in her employment without due process.
ii. Liberty Interest
Defendants also contend that Stallings fails to properly allege deprivation of
a liberty interest. Liberty interest includes occupational liberty, i.e., “the liberty to
follow a trade, profession, or other calling.” Wroblewski v. City of Washburn,
965 F.2d 452, 455 (7th Cir. 1992). Deprivation of occupational liberty “may arise
when, after an adverse employment action, a public employer stigmatizes the
employee by making public comments impugning his [or her] good name, honor
or

reputation

or

imposes

a

stigma

that

forecloses

other

employment

opportunities.” Palka, 623 F.3d at 454 (citing Bd. of Regents v. Roth, 408 U.S.
564, 573-74 (1972)).
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Stallings alleges that Mitchell and Yelencich made “public statements that
Stallings committed criminal acts during her employment with Johnston City,”
and that such statements were false. Drawing all reasonable inferences in
Stallings’ favor, she has plausibly alleged a claim for deprivation of her
occupational liberty interest without due process.
b. Counts IV and V: IIED
Counts IV and V allege a state law claim for IIED. Mitchell and Yelencich
maintain that Stallings fails to state a claim for IIED, their acts are absolutely
privileged, they are entitled to tort immunity, and that they are immune from
punitive damages liability.
i. Conduct not Extreme and Outrageous
In Illinois, to establish a prima facie case of IIED, a plaintiff must allege
that: (1) defendant engaged in truly extreme and outrageous conduct; (2)
defendant either intended that her conduct inflict severe emotional distress, or
there was at least a high probability that the conduct would inflict severe
emotional distress; and (3) the conduct did in fact cause severe emotional
distress. Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (applying Illinois
law)).

The tort does not reach “mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities.” McGrath v. Fahey, 533 N.E.2d 806, 809
(Ill. 1988) (quoting Restatement (Second) of Torts § 46 cmt. D (1965)). On the

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contrary, “the conduct must go beyond all bounds of decency and be considered
intolerable in a civilized community.” Honaker, 256 F.3d at 490.
Mitchell and Yelencich contend that their conduct “was not extreme or
outrageous as a matter of law” as required under the first prong of IIED (Doc. 15,
p. 9). Under Illinois law, a defendant’s conduct must be such that the “‘recitation
of the facts to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim: Outrageous!’” Doe v. Calumet City,
641 N.E.2d 498, 507 (Ill. 1994) (quoting Restatement (Second) of Torts § 46 cmt.
D (1965) (internal quotations omitted)).

In McGrath, the Supreme Court of

Illinois cited non-exclusive factors which can help inform this rather fluid
standard. See McGrath, 533 N.E.2d at 809-10. One factor that influences the
extreme and outrageous nature of the conduct is the degree of power or authority
that the actor has over the plaintiff. Id.
In the context of an employer-employee relationship, courts have found
extreme and outrageous behavior where the “employer clearly abuses the power it
holds over an employee in a manner far more severe than the typical
disagreements or job-related stress caused by the average work environment.”
Honaker, 256 F.3d at 491. Another factor that courts consider is “whether the
defendant reasonably believed that his objective was legitimate; greater latitude is
given to a defendant pursuing a reasonable objective even if that pursuit results in
some amount of distress for a plaintiff.” Id. at 491.

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Presuming Stallings’ contentions to be true and drawing all reasonable
inferences in her favor, the Court finds that Stallings’ allegations are sufficient.
Stallings alleges that both Mitchell and Yelencich “intentionally abused [their]
position[s] of power and influence and made unsubstantiated and unjustified
personal attacks on Stallings that, under the circumstances, amounts to extreme
and outrageous conduct.”
The alleged circumstances surrounding the claim for IIED are: 1) Mitchell
and Yelencich suspended Stallings without pay for more than a year, despite
having no actual evidence of criminal conduct by Stallings; 2) Mitchell and
Yelencich had no evidence of criminal conduct by Stallings when they terminated
Stallings’ employment with Johnston City; 3) Despite a lack of evidence, both
Mitchell and Yelencich repeatedly made public statements accusing Stallings of
criminal conduct; 4) Both Mitchell and Yelencich intended or knew that there was
a high probability that their conduct would cause Stallings severe emotional
distress; 5) Both Mitchell’s and Yelencich’s conduct did in fact cause Stallings
severe emotional distress; and 6) As a direct and proximate result of both
Mitchell’s and Yelencich’s intentional, extreme and outrageous conduct, Stallings
suffered

actual

extreme

and

severe

emotional

distress,

humiliation,

embarrassment, and loss of enjoyment of life, and will continue to suffer in the
future (Doc. 4).
The Court finds that the alleged facts contained in the amended complaint
state a cause of action against both Mitchell and Yelencich for IIED. Mitchell and
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Yelencich challenge the severity of their alleged conduct, but currently, the exact
content and extent of the allegations is unknown.
ii. Defenses
1. Absolute Privilege
Alternatively, Mitchell and Yelencich state that, “[c]ourts have long held that
absolute privilege exists for federal, state, or municipal officials that make
otherwise defamatory statements in the performance of their official duties” (Doc.
15, p. 10). Thus, they argue Counts IV and V for IIED require dismissal on the
basis of this affirmative defense.
Illinois courts recognize that legislative and executive officials at the state
and local level cannot be held liable for statements made within the scope of their
official duties.

Loniello v. Fitzgerald, 356 N.E.2d 842, 844 (Ill. App. 1976);

Gieck v. Kay, 603 N.E.2d 121, 127 (Ill. App. 1992) (“As an official of the executive
branch of a local government, Kay cannot be held liable for statements made
within the scope of his official duties.”).
Mitchell and Yelencich argue they are “entitled to absolute immunity from
liability for any alleged public statements they made about Stallings” (Doc. 15, p.
12). Stallings responds that her allegations demonstrate Mitchell and Yelencich
did not make their statements in the performance of their official duties. Stallings
argues, “[g]oing around town and falsely accusing a person can never be a
statement made in the scope of the Mayor’s or Alderman’s official duties.”
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The Court finds dismissal on absolute privilege grounds is not appropriate
on a Rule 12(b)(6) motion in this instance. A complaint must plead enough facts
to demonstrate that relief is plausible; it need not anticipate affirmative defenses
and attempt to defeat them. Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.
2012). As absolute privilege is a defense, the issue is whether Stallings’ amended
complaint establishes as a matter of law that absolute privilege bars her claims
for IIED. It does not. The Court cannot determine from the amended complaint
alone whether Mitchell and Yelencichs’ alleged actions were made within the scope
of their official duties. Stallings’ allegations plausibly encompass actions made
outside the scope of Mitchell and Yelencichs’ official duties. Thus, absolute
privilege does not provide a basis for dismissal under Rule 12(b)(6).
2. Tort Immunity
Mitchell and Yelencich also raise the affirmative defense of tort immunity
under the Illinois Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act). Mitchell and Yelencich cite Section 2-201 of
the Tort Immunity Act which provides:
Except as otherwise provided by Statute, a public employee serving
in a position involving the determination of policy or the exercise of
discretion is not liable for injury resulting from his act or omission in
determining policy when acting in the exercise of such discretion even
when abused.
745 ILCS 10/2-201.

Thus, immunity from suit pursuant to Section 2-201,

requires both an act of discretion and a policy decision. Harinek v. 161 North
Clark Street Ltd. Partnership, 692 N.E.2d 1177, 1181 (Ill. 1998).
Page 12 of 15

A

discretionary act is one that is unique to a particular public office and performed
with a degree of flexibility. Snyder v. Curran Twp., 657 N.E.2d 988, 993 (Ill.
1995). A policy choice requires a governmental employee to balance competing
interests and to make a judgment call as to what solutions will best serve each of
those interests. Van Meter v. Darien Park Dist. 799 N.E.2d 273, 285 (Ill. 2003).
Section 2-201 does not apply to ministerial actions. See In re Chicago
Flood Litig., 680 N.E.2d 265, 272 (Ill. 1997). Ministerial acts are performed on a
given state of facts in a prescribed manner, under the mandate of legal authority,
without reference to an official's discretion regarding the propriety of the
act. See Snyder, 657 N.E.2d at 993. Ministerial acts do not involve any sort of
judgment or determination, but the execution of a set task that is “absolute,
certain, and imperative.” Chicago Flood Litig., 680 N.E.2d at 272 (quoting City of
Chicago v. Seben, 46 N.E. 244, 246 (Ill. 1897)).
Mitchell and Yelencich bear the burden of demonstrating statutory
immunity bars Stallings’ claims for IIED. See Van Meter, 799 N.E.2d at 284.
Again, as this is a Rule 12(b)(6) motion, immunity must be apparent on the face of
the amended complaint to warrant dismissal. It is not apparent from the face of
the amended complaint, or Mitchell and Yelencichs’ general arguments, that
Mitchell and Yelencich are afforded statutory immunity for Stallings’ allegations
contained within Counts IV and V at this stage in the proceedings. The Court will
not dismiss Stallings’ Counts IV and V on this basis at this time.

Page 13 of 15

iii. Punitive Damages
Mitchell and Yelencich argue that Stallings cannot recover punitive damages
on her claims for IIED based on Section 2-102 of the Tort Immunity Act. Section
2-102 states:
[N]o public official is liable to pay punitive or exemplary damages in
any action arising out of an act or omission made by the public
official while serving in an official executive, legislative, quasilegislative or quasi-judicial capacity, brought directly or indirectly
against him by the injured party or a third party.
745 ILCS 10/2-102.
The Court finds it unnecessary to determine whether Section 2-102 bars
punitive damages for Stallings’ Counts IV and V. According to the law of Illinois,
plaintiffs are not entitled to punitive damages for IIED claims. Knierim v. Izzo,
174 N.E.2d, 157, 165 (Ill. 1961); see also Casey-Beich v. United Parcel Service,
295 F. App’x 92, 94 (7th Cir. 2008)).

Therefore, Stallings’ punitive damages

requests contained in Counts IV and V against Mitchell and Yelencich are hereby
stricken.

Page 14 of 15

V.

Conclusion

For the reasons stated above, the Court GRANTS in part and DENIES in
part defendants’ motion (Doc. 15). The motion is granted to the extent that
Stallings’ requests for punitive damages in Counts IV and V are stricken. In all
other respects, defendants’ motion is denied.
IT IS SO ORDERED.
Signed this 4th day of November, 2013.

Digitally signed by
David R. Herndon
Date: 2013.11.04
12:43:17 -06'00'
Chief Judge
U. S. District Court

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