United States District Court, N.D. Illinois
February 24, 2004.
SUZANNE M. BARTH, Plaintiff,
VILLAGE OF MOKENA, STEPHEN J. POLLAK, CHIEF OF THE VILLAGE OF MOKENA POLICE DEPARTMENT, in his official and individual capacity, and DONALD DREESBACH, in his individual capacity, Defendants
The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge
MEMORANDUM OPINION AND ORDER
Defendants have moved pursuant to Federal Rule of Civil Procedure
12(b)(6) to dismiss the complaint. For the reasons stated below, the
motions to dismiss*fn1 are denied.
In considering a motion to dismiss, the court must accept as true all
well-pleaded facts and must draw all reasonable inferences from those
allegations in plaintiffs favor. MCM Partners. Inc. v. Andrews-Bartlett
& Assoc., Inc., 62 F.3d 967, 972 (7th Cir. 1995). According to the
allegations in the complaint, plaintiff was a police officer employed by
defendant Village of Mokena from September 18, 1998 to August 23, 2002.
During that period, defendant Pollak was the Chief of Police. Defendant
Dreesbach was a police sergeant, and was one of plaintiff's supervisors.
The complaint alleges that starting in September 1998, plaintiff was
subjected to sexual harassment and discrimination. The complaint further
alleges that defendants retaliated against plaintiff when she complained
about the sexual harassment and discrimination.
On September 22, 2003, plaintiff filed this action under
42 U.S.C. § 1983, alleging that defendants violated her right to equal
protection under the Fourteenth Amendment to the United States
Constitution (Count I), and that they retaliated against her for
exercising her First Amendment rights under the United States
Constitution (Count II).
When ruling on a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must consider "whether relief is possible
under any set of facts consistent with the allegations of the plaintiffs
complaint." Pokuta v. Trans World Airlines., Inc., 191 F.3d 834, 839 (7th
Cir. 1999). That is, if it is possible to hypothesize a set of facts that
would entitle the plaintiff to relief, consistent with the allegations in
the complaint, dismissal under Rule 12(b)(6) is inappropriate. Graehling
v. Village of Lombard, 58 F.3d 295, 297 (7th Cir. 1995).
Defendant Village of Mokena first argues that plaintiffs Section 1983
claims should be dismissed against it because the complaint fails to
adequately allege a basis for municipal liability. A municipal entity
cannot be held vicariously liable under Section 1983 through the doctrine
of respondeat superior. Monell v. Department of Social Servs.,
436 U.S. 658. 694 (19781 Such an entity can be sued under Section 1983
only if the constitutional injury was authorized by express policy,
authorized through a widespread practice that is so permanent and
well-settled as to constitute a custom or usage with the force of law, or
caused by a person with final policymaking authority. McCormick v. City
of Chicago, 230 F.3d 319, 324 (7th Cir. 2000).
The complaint alleges that defendants Village of Mokena and Pollak
"have a policy and custom of allowing and condoning sexual harassment,
failing to respond to complaints, and retaliating against those who
complain about unlawful conduct." The complaint further alleges that
"[defendants' actions reflect a policy, custom, or pattern of official
conduct of engaging in
and condoning sexual harassment and discrimination of women based
on their gender." Finally, the complaint alleges that Pollak has final
policymaking authority as Chief of Police, and that he "created and
perpetuated a hostile work environment, turned a blind eye to the sexual
harassment and Plaintiffs complaints, and condoned and committed
retaliation against Plaintiff.]"
Defendant Village of Mokena argues that such "boilerplate allegations,"
without additional factual support, are inadequate to withstand a Rule
12(b)(6) motion to dismiss. In support of this argument, Village of
Mokena cites Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985) and
Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194 (7th Cir. 1985).
Village of Mokena's reliance on this 1985 line of authority is
misplaced. Over the last eleven years, the United States Supreme Court
and the Seventh Circuit have made clear that there is no heightened
pleading standard in Section 1983 civil rights cases, and that factual
specificity in complaints is not required. See, e.g., Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
164, 168 (1993); McCormick, 230 F.3d at 323-25. Plaintiffs allegations are
sufficient to place Village of Mokena on notice of her municipal
liability claim, and the Village's motion to dismiss on that basis must
Next, defendants argue that plaintiffs First Amendment retaliation
claim should be dismissed because plaintiffs speech did not address a
matter of public concern. To state a claim of retaliation based on a
First Amendment violation, "`the facts alleged in the complaint must show
that (1) the speech in which the plaintiffs engaged was constitutionally
protected under the circumstances, and (2) the defendants retaliated
against them because of it.'" Delgado v. Jones, 282 F.3d 511, 516 (7th
Cir. 2002) (quoting Gustafson v. Jones, 117 F.3d 1015, 1018 (7th Cir.
1997)). A government employee's speech warrants First Amendment
protection if it "`addresses a
matter of public concern.'" Id. (quoting Connick v. Myers, 461 U.S. 138,
147 (1982)). To determine whether speech addresses a matter of public
concern, the court examines the "content, form, and context" of the
speech. Id. at 517. Of these factors, content is the most important. Id.
In her complaint, plaintiff alleges that she complained to supervisors
and command staff about "the hostile work environment and
discrimination." Plaintiff describes this hostile work environment in an
earlier paragraph as being created by ongoing incidents of sexual
harassment against her. The discrimination about which plaintiff
complained included "being denied special assignments, subjected to
unwarranted and disproportionate disciplinary action, denied backup,
denied compensation for training time that she was entitled to, and
treated differently in the terms and conditions of her employment."*fn2
Plaintiff alleges that defendants retaliated against her in response to
Plaintiff argues that her complaint that she was discriminated against
by being denied backup raised the issues of officer safety and public
safety, both matters of public concern. The court agrees. "[P]olice
protection and public safety are generally a matter of public concern."
Delgado, 282 F.3d at 517. Moreover, speech related to law enforcement
that has an impact on public safety is speech touching on a matter of
public concern, even if the speaker was partly motivated by personal
concerns. Gustafson v. Jones, 290 F.3d 895, 913 (7th Cir. 2002); Auriemma
v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990). The court concludes that
plaintiff has adequately alleged that she engaged in constitutionally
The court observes, however, that plaintiffs complaints of harassment
and discrimination that do not relate to public safety do not appear to
touch upon a matter of public concern. Sexual harassment and gender
discrimination are inherently subjects of public interest. See Marshall
v. Allen, 984 F.2d 787, 795 (7th Cir. 1993); Gray v. Lacke, 885 F.2d 399,
411 (7th Cir. 1989). However, speech does not address a matter of public
concern if it "`concerns a subject of public interest but the expression
addresses only the personal effect upon the employee.'" Button v.
Kibby-Brown, 146 F.3d 526, 529-30 (7th Cir. 1998) (quoting Marshall v.
Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir. 1994)).
In this case, plaintiff does not allege that she complained that other
women were also experiencing harassment or discrimination. Cf. Kessel v.
Cook County, No. 00 C 3980, 2001 WL 826914, at *4-5 (N.D. Ill. July 12,
2001) (in considering proposed amendment to complaint, court found that
speech touched matter of public concern where employee filed EEOC charge
alleging that employer systemically discriminated against and harassed
her and other women). Rather, here plaintiff complained to her
supervisors about her own experiences in an effort to get the harassment
and discrimination against her to stop. Such speech does not touch upon a
matter of public concern. See Gray, 885 F.2d at 411 (employee's complaint
to supervisors about sexual harassment against her addressed matter of
ORDERED: Defendant Village of Mokena's Motion to Dismiss [6-1] is
denied. Defendants Village of Mokena, Stephen Pollak, and Donald
Dreesbach's Motion to Dismiss Count II of Plaintiff's Complaint [9-1] is