Brombolich v. City of Collinsville et al

Filing 79

ORDER denying 39 Motion to Dismiss for Failure to State a Claim. Signed by Judge David R. Herndon on 7/14/17. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHERYL BROMBOLICH
Plaintiff,
vs.
CITY OF COLLINSVILLE,
SCOTT WILLIAMS, in his Individual
and Official Capacity,
and MICHAEL TOGNARELLI, in his
Individual and Official Capacity,

Case No. 16-cv-490-DRH-DGW

Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
I.

Introduction

Now before the Court is defendant’s, City of Collinsville, motion to dismiss
plaintiff’s first amended complaint (Doc. 28) pursuant to FEDERAL RULE

OF

CIVIL

PROCEDURE 12(b)(6). Plaintiff, Cheryl Brombolich, (hereinafter “Brombolich”)
opposes the motion on grounds that the question of whether defendant Scott
Williams (hereinafter “Williams”) acted with final policymaking authority delegated
to him by the City of Collinsville is one of fact and, thus, cannot be answered at
the motion to dismiss stage. (Doc. 55). For the reasons explained below, the Court
DENIES defendant’s motion to dismiss. (Doc. 39).
II.

Background

Count I of plaintiff’s first amended complaint alleges violations of 42 U.S.C.
§ 1983 against defendants City of Collinsville and Williams in his Individual and
Official capacity. In 2008, plaintiff was appointed and sworn in as City Clerk for
the City of Collinsville. (Doc. 28, ¶ 5). She served in that capacity from 2008 until
her alleged constructive discharge in 2014. (Doc. 28, ¶ 5). Her responsibilities
included supervising the employees of the City Clerk’s office. (Doc. 28, ¶ 6). At all
relevant times, plaintiff states she met or exceeded her reasonable job
expectations. (Doc. 28, ¶ 7).
Defendant Scott Williams was the City Manager for the City of Collinsville
and plaintiff’s direct supervisor at the time of her alleged constructive discharge.
(Doc. 28, ¶¶ 8, 12). Thus, he functioned as the administrative head of the City
municipal government. (Doc. 28, ¶ 9). As a result, plaintiff states defendant
Williams had “final authority to hire and fire employees as well as to appoint or
remove unelected officers.” (Doc. 28, ¶ 10) (citing 65 ILCS 5/5-3-7). Further,
plaintiff believes “[a]s City Manager, and pursuant to the duties delegated to him
by the Illinois Municipal Code and the City, Williams created and implemented
City of Collinsville policies.” (Doc. 28, ¶ 11).
In June of 2014, plaintiff became aware of sexual harassment and
intimidation complaints involving a member of her staff and a City department
head. (Doc. 28, ¶ 13). The harassment and intimidation is said to have been
“continuous and included allegations of unwanted sexual advances and unwanted
physical touching in addition to threats against the victim’s family.” (Doc. 28, ¶

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13). The department head, who plaintiff claims is a “personal friend of Defendant
Williams,” allegedly threatened the victim by stating that “if anyone ever crossed
him[,] he would burn their house down and shoot them and their family as they
ran out the door.” (Doc. 28, ¶¶ 13, 15). Plaintiff alleges that defendant controlled
the City’s internal reporting policies, and that he “actively discouraged the victim
from discussing [the] matter with Plaintiff or with any member of the Collinsville
City Council or with the Mayor,” despite plaintiff being her direct reporter. (Doc.
28, ¶¶ 14, 19). Defendant Williams “purported to have made an internal
investigation… [but] the department head was not subjected to any discipline.”
(Doc. 28, ¶ 16).
Plaintiff states that she complained to defendant Williams and City
Corporate Counsel Steven Giacoletto in her public capacity about the City’s
response to the harassment and intimidation complaint, but that these
complaints fell upon deaf ears. (Doc. 28, ¶ 19). Further, plaintiff had “multiple
conversations in person and over the phone with the victim of the harassment,
other current City employees, and former City employees” as a private citizen
regarding the harassment and intimidation complaints, as well as about alleged
unlawful hiring practices of defendant Williams. (Doc. 28, ¶ 20). The unlawful
hiring practices allegedly consisted of “alter[ing] the results of a Civil Service exam
for the benefit of one of [Williams’s] friends… to the detriment of a person who
scored higher on the civil service exam.” (Doc. 28, ¶ 18).

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On information and belief, defendant Williams became aware of the above
described conversations. (Doc. 28, ¶ 22). In retaliation, he allegedly “devised a
pretext to humiliate Plaintiff and force her early termination from employment
with the City.” (Doc. 28, ¶ 23). Specifically, defendant Williams suspended plaintiff
for using City credit cards for personal use, a violation of City policy that he
controlled. (Doc. 28, ¶ 24). Plaintiff alleges it was common practice to personally
use the public credit cards and then reimburse the City from the card user’s
personal account. (Doc. 28, ¶ 23). Despite having reimbursed the City, plaintiff
was suspended, while other City employees who committed the same alleged
violation were not. (Doc. 28, ¶ 24). Defendant Williams allegedly “knew this
activity was common practice and knew specifically of other City employees who
violated this policy….” (Doc. 28, ¶ 24). Plaintiff was then advised that “Williams
intended to gratuitously humiliate Plaintiff and demand her termination before
the public at a City Council meeting,” even though he “did not need the consent of
the City Counc[il] to terminate Plaintiff’s employment.” (Doc. 28, ¶ 25).
On September 11, 2015, after 30 years of working for the City, plaintiff
resigned her employment “under duress and out of fear that her character would
be placed in a false light if she remained as an employee….” (Doc. 28, ¶¶ 26, 27).
Thereafter, plaintiff brought the underlying lawsuit on May 2, 2016 (Doc. 1). In
her amended complaint, plaintiff alleges that she would not have resigned “but for
Defendant Williams suspending her and preparing to gratuitously demand that
she resign….” (Doc. 28, ¶ 28).

Further, plaintiff alleges defendants’ conduct

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amounted to a constructive discharge and violation of the First Amendment of the
United States Constitution, as the treatment was “in retaliation for her lawful
statements as a private citizen to other private citizens on matters of public
concern.” (Doc. 28, ¶¶ 29-30). Thereafter, on October 14, 2016, the City of
Collinsville filed the pending motion to dismiss (Doc. 39), to which plaintiff
opposed (Doc. 55).
III.

Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
challenges the sufficiency of the complaint for failure to state a claim upon which
relief may be granted. Gen. Hallinan v. Fraternal Order of Police Chicago Lodge

No. 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 to withstand Rule
12(b)(6) dismissal, a complaint “does not need detailed factual allegations,” but
must contain “enough facts to state a claim for relief that is plausible on its face.”
550 U.S. at 570.

Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), retooled federal
pleading standards, but 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)
(citation omitted). In making this assessment, the district court accepts as true all

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well-pleaded factual allegations and draws all reasonable inferences in the
plaintiff’s favor. See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St.

John’s United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007).
The above standard applies to civil rights cases alleging municipal liability,
as “a federal court may not apply a heightened pleading standard more stringent
than the usual Rule 8(a) pleading requirements.” See Estate of Sims ex rel. Sims

v. Cnty of Bureau, 506 F.3d 509, 514 (7th Cir. 2007) (citing Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165
(1993)).

Particular to this case, the Seventh Circuit has acknowledged that

“district courts continue to struggle with… exactly what a plaintiff bringing a
municipal liability suit must plead to survive a motion to dismiss….” See

McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). For this
reason, it clarified in McCormick that notice pleading is all that is required, as
“plaintiff need not ‘allege all, or any of the facts logically entailed by the claim… A
plaintiff does not have to plead evidence…. [A] complaint does not fail to state a
claim merely because it does not set forth a complete and convincing picture of
the alleged wrongdoing.’” Id. at 325 (quoting Payton v. Rush-Presbyterian-St.

Luke’s Medical Center, 184 F.3d 623, 626-27 (7th Cir. 1999) (internal citations
omitted)).

IV.

Analysis

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To state a § 1983 claim against a municipality, the complaint must allege
that “an official policy or custom not only caused the constitutional violation, but
was ‘the moving force’ behind it.” Id. (citing City of Canton, Ohio v. Harris, 489
U.S. 378, 389 (1989). Further, under such a theory, “there is no respondeat
superior liability…

[as] the Supreme Court ‘distinguish[es] acts of the

municipality from acts of employees of the municipality.’” Milestone v. City of
Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original) (internal citations
omitted)); See also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 n. 58 (1978).
In so doing, it limits liability to “action for which the municipality is actually
responsible.” Pembaur, 475 U.S. at 479. Thus, plaintiff must eventually prove the
constitutional violation was caused by one of the following: “(1) an express
municipal policy; (2) a widespread, though unwritten, custom or practice; or (3) a
decision by a municipal agent with ‘final policymaking authority.’” Milestone, 665
F.3d at 780 (quoting Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th
Cir. 2009)).
Here, only the third potential avenue for liability is at issue. The question of
“whether an entity has final policymaking authority is a question of state or local
law.” Id. (citing Jett v. Dallas Indep. Sch. Dist., 492 U.S. 701, 737 (1989)); See
also Kujawski v. Bd. of Comm’rs, 183 F.3d 734, 737 (7th Cir. 1999); Darchak,
580 F.3d at 630. However, “not every municipal official with discretion is a final
policymaker,” as “authority to make final policy in a given area requires more

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than mere discretion to act.” Id. (citing Darchak, 580 F.3d at 630 and Gernetzke

v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 469 (7th Cir. 2001)). The
relevant question is whether the official’s “decisions are subject to review by a
higher official or other authority.” Id. (citing Gernetzke, 274 F.3d at 469).
Thus, the situations in which municipal liability is proper under this theory
are limited to when “the official who commits the alleged violation… has authority
that is final in the special sense that there is no higher authority.” Gernetzke, 274
F.3d at 469. The official “must possess ‘responsibility for making law or setting
policy,’ that is ’authority to adopt rules for the conduct of government,’” rather
than “the mere authority to implement pre-existing rules….” Killinger v. Johnson,
389 F.3d 765, 771 (7th Cir. 2004) (citing Rasche v. Village of Beecher, 336 F.3d
588, 599, 601 (7th Cir. 2003) (internal citations omitted); See also Auriemma v.

Rice, 957 F.2d 397, 400-01 (7th Cir. 1992)). Such authority “may be granted
directly by a legislative enactment or may be delegated by an official who
possesses such authority….” Rasche, 336 F.3d at 600; See also Pembaur, 475
U.S. at 483; Eversole v. Steele, 59 F.3d 710, 716-17 (7th Cir. 1995). If the power
is delegated, however, then the “person or entity with final policymaking authority
must delegate the power to make policy, not simply the power to make decisions.”

Darchak, 580 F.3d at 630; See also Kujawski, 183 F.3d at 739.
Defendant, City of Collinsville, argues in its motion to dismiss that plaintiff
has failed to allege any basis for municipal liability. (Doc. 39, pg. 3). Specifically,
defendant does not believe that 65 ILCS 5/5-3-7 provides a city manager with the

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“responsibility for making law or setting policy,” or “authority to adopt rules for
the conduct of the government,” as required to have final policymaking authority.
(Doc. 39, pg. 6). Thus, according to defendant, plaintiff has not “identified any
state or local law, or custom having the force of law, that grants Defendant
Williams… the authority to adopt rules that are relevant to this case.” (Doc. 39,
pg. 5-6) (citing Kujawski, 183 F.3d at 737). Instead, defendant believes that 65
ILCS 5/5-3-7 “merely provides the city manager with the authority to implement
pre-existing rules.” (Doc. 39, pg. 7).
Further, defendant argues that plaintiff is “confusing the role of a decisionmaker with that of a final policymaker…,” which it believes is insufficient to state
a claim against a municipality under § 1983.

(Doc. 39, pg. 7-8). That is,

defendant argues the Seventh Circuit has recognized “a plaintiff must lose ‘unless
an entirely executive decision establishes municipal policy because it is final….’”
(Doc. 39, pg. 8) (quoting Auriemma, 957 F.2d at 400). Because it is argued
defendant Williams “only had authority to implement pre-existing rules and did
not have the authority to set policy,” defendant believes plaintiff’s claims are
insufficient and require dismissal. (Doc. 39, pg. 8) (citing Killinger, 389 F.3d at
772; Gernetzke, 274 F.3d at 469; Lopez v. Shines, No. 93 C 1243, 1993 WL
437450, at *2 (N.D. Ill. Oct. 27, 1993)).
Conversely, plaintiff argues whether defendant Williams acted with final
policymaking authority delegated to him by the City of Collinsville is an issue of
fact to be decided by the jury. (Doc. 55, pg. 1). Such authority was allegedly

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delegated and used to constructively discharge plaintiff when the City of
Collinsville allowed defendant Williams to set policy for the following: (1) hiring
and firing city employees, (2) using City credit cards, and (3) reporting sexual
harassment. (Doc. 55, pg. 1).
Plaintiff cites Seventh Circuit authority to support the above position. (Doc.
55, pg. 2) (citing Kujawski, 183 F.3d at 737; Jett, 491 U.S. at 737; City of St.

Louis v. Praprotnik, 485 U.S. 112, 124 n. 1 (1988)). Specifically, it argues that
the Seventh Circuit has “repeatedly reversed grants of summary judgment to
municipalities on this point” by discussing cases in which reasonable inferences
could be made about delegated policy decisions. (Doc. 55, pg. 2) (discussing

Kujawski, 183 F.3d at 740; Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664,
678 (2009)). In so doing, it attempts to highlight the differences in the standards
for motions to dismiss and motions for summary judgment, as well as analogize
the present facts with those contained in Kujawski and Valentino. (Doc. 55, pg. 23). Lastly, plaintiff distinguishes Auriemma, which was cited extensively by
defendant, by showing differences in the facts and that it too was decided at the
summary judgment stage. (Doc. 55, pg. 2).
Here, the Court finds that plaintiff has stated sufficient allegations to give
defendant notice of the claims being made against it. As noted above, this is all
that is required to plead a claim of municipal liability. Enough facts have been
alleged, that when accepted as true, state claims that are plausible on the face of
the complaint. That is, plaintiff has provided facts regarding defendant Williams,’

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the administrative head for the City’s municipal government, delegated authority
to make final policy in the areas of hiring and firing City employees, using City
credit cards, and reporting sexual harassment.

In so doing, plaintiff has

sufficiently alleged that it was defendant Williams’ decisions as a final policymaker
in these areas that were the “driving force” behind her First Amendment
violations, and therefore her complaint survives the motion to dismiss stage.
Additional facts are needed to determine whether defendant Williams was in fact
delegated this authority by legislative enactment or an official or entity possessing
such authority, and whether it was to make final policy or simply executive
decisions. For the time being, however, plaintiff’s well-pleaded facts in these areas
must be accepted as true.
V.

Conclusion

Accordingly, the Court DENIES defendant’s motion to dismiss plaintiff’s
first amended complaint. (Doc. 39).
IT IS SO ORDERED.
Signed this 14th day of July, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.07.14
17:09:49 -05'00'
United States District Judge

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