United States District Court, N.D. Illinois, Eastern Division
July 8, 2004.
JILL GUTZWILLER, Plaintiff,
CITY OF CHICAGO, CHICAGO POLICE DEPARTMENT, SUPERINTENDENT TERRY HILLARD, LYDIA CONLISK, JOHN DOE, AND OTHER UNKNOWN DEFENDANTS, IN THEIR INDIVIDUAL CAPACITY, AND HENRY GUTZWILLER, Defendants.
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
This case is before the Court on defendants City of Chicago and
Terry Hillard's motion to dismiss Count III pursuant to
Rule 12(b)(6) and to dismiss Counts IV through VII pursuant to
Rule 12(b)(1). Defendants also seek to dismiss the Chicago Police
Department as a party defendant. For the following reasons, the
motion to dismiss is granted.
Jill Gutzwiller is a white female who was employed as a
probationary police officer by the City of Chicago Police
Department. On or about June 5, 2002, Ms. Gutzwiller was
discharged from her employment with the City of Chicago Police
On March 2, 2002, Ms. Gutzwiller called the police, filed a
police report, and informed her superiors of injuries to her
caused by her husband On March 5, 2002, Ms. Gutzwiller received an Emergency Order of Protection against her husband On
March 18, 2002, the court granted Ms. Gutzwiller's Plenary Order
of Protection against Mr. Gutzwiller. Mr. Gutzwiller was later
found guilty of continuously violating this Order of Protection.
At the time of violations, Ms. Gutzwiller informed the Chicago
Police Department of the violations and, dissatisfied with the
response, filed another police report against Mr. Gutzwiller on
April 27, 2002.
On or about April 30, 2002, Ms. Gutzwiller was informed by the
City of Chicago Office of Professional Standards (hereinafter
"OPS") that Mr. Gutzwiller had filed charges against her. Ms.
Gutzwiller submitted information to her superiors that she
believed showed that the allegations against her were false. On
May 31, 2002, the Chicago Police Department's OPS made a
"sustained" finding against Ms. Gutzwiller for the charges that
were brought by Mr. Gutzwiller. On June 5, 2002, the Chicago
Police Department terminated Ms. Gutzwiller's employment as a
On October 27, 2003, Ms. Gutzwiller filed a seven-count
complaint against the City of Chicago, the Chicago Police
Department, Terry Hillard, Lydia Conlisk, John Doe, other unknown
defendants, and Henry Gutzwiller. Specifically, the complaint
contains the following claims: (1) Count I alleges a violation of
Title VII and the Americans with Disabilities Act for discharging
Ms. Gutzwiller because she is a white female who suffers from a
serious hearing impairment; (2) Count II asserts a claim for
unequal and discriminatory treatment for her discharge; (3) Count
III alleges a violation of the First Amendment as applicable to
the states by the Fourteenth Amendment and 42 U.S.C. § 1983; (4)
Count IV asserts a claim for assault and battery against Mr.
Gutzwiller; (5) Count V alleges extreme and outrageous conduct by
Mr. Gutzwiller that resulted in emotional distress to Ms. Gutzwiller;
(6) Count VI asserts a claim against Mr. Gutzwiller for
intentional interference with employment; and (7) Count VII
asserts a claim against Mr. Gutzwiller for defamation and
The City of Chicago and Hillard filed a motion to dismiss the
complaint pursuant to Federal Rule 12(b)(6) and 12(b)(1) for
failure to support a claim and a lack of supplemental
jurisdiction. The City of Chicago and Hillard argue that Count
III should be dismissed because the complaint does not allege any
matter of public concern to support the claim. The City of
Chicago and Hillard also argue that Counts IV through VII should
be dismissed for a lack of supplemental jurisdiction. The City of
Chicago and Hillard also seek to dismiss the Chicago Police
Department as a party defendant because the Chicago Police
Department is not a suable entity.
STANDARD OF REVIEW
In ruling on a motion to dismiss, the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in favor of the plaintiff. Szumny v. Am.
Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). The
purpose of a motion to dismiss is not to decide the merits of the
challenged claims but to test the sufficiency of the complaint.
Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n. 1 (7th
Cir. 1996). A court will grant a motion to dismiss only if it is
impossible for the plaintiff to prevail under any set of facts
that could be proven consistent with the allegations. Forseth v.
Village of Sussex, 199 F.2d 363, 368 (7th Cir. 2000). DISCUSSION
I. Count III Does Not State a Claim Upon Which Relief Can Be
The City of Chicago and Hillard contend that Count III should
be dismissed pursuant to Rule 12(b)(6) for failure to state a
claim under 42 U.S.C. § 1983. In Count III, Ms. Gutzwiller
alleges a violation of her First Amendment right of free speech
as applicable to the states under the 14th amendment and section
1983. Ms. Gutzwiller argues that her complaints are a matter of
public concern and therefore constitutionally protected pursuant
to section 1983.
The City of Chicago can be sued under section 1983 if the
deprivation of constitutional rights is caused by a municipal
policy or custom. Monell v. Dept. of Soc. Serv. 436 U.S. 658,
659 (1978). A plaintiff may demonstrate the existence of a
municipal policy or custom in one of three ways: proof of express
policy causing the loss, a widespread practice constituting
custom or usage that caused the loss, or causation of the loss by
a person with final policymaking authority. McTigue v. City of
Chicago, 60 F.3d 381, 382 (7th Cir. 1978). Independent of
finding a municipal policy, an employee's speech warrants First
Amendment protection only if it "addresses a matter of public
concern." Connick v. Myers, 461 U.S. 138, 147 (1982).
Speech is not protected by section 1983 if it involves a
personal grievance of interest only to the employee. Wainscott
v. Henry, 315 F.3d 844, 848 (7th Cir. 2003). To determine if a
speech is a personal grievance or a matter of public concern, the
court considers the time, place and manner of the affected
speech. Delgado v. Jones, 282 F.3d 511, 517 (7th Cir. 2002). In
Barth v. Village of Mokena, a plaintiff filed an action
alleging retaliation against her for exercising her First
Amendment rights. 2004 WL 434195, *1 (N.D. Ill. February 25,
2004). Plaintiff's speech contained complaints of her
specifically being treated differently than other employees in the terms and conditions of her employment and in
her discharge. Id. at *2. The complaint alleged that the local
authorities had a policy and custom of treating differently those
who complain about unlawful conduct. Id. at * 1. On the issues
of gender discrimination and sexual harassment, the court found
that while these topics are inherently a matter of public
concern, speech by the plaintiff did not address public interest
since it was only an expression that addressed the personal
effect upon the employee. Id. at *2 (quoting Button v.
Kibby-Brown, 146 F.3d 526, 529-30 (7th Cir. 1998)).
Similar to the plaintiff in Barth v. Village of Mokena, Ms.
Gutzwiller's alleged speech is concerned only with a personal
effect on her rather than issues of public concern. Ms.
Gutzwiller's speech is solely of a personal nature because it
contained reference only to her discharge based on specific
actions between her and her husband In her section 1983 claim,
Ms. Gutzwiller does not make any allegations of systematic
misconduct by the City of Chicago. Therefore, while gender, race,
and disability discrimination are generally areas of public
concern, the circumstances surrounding Ms. Gutzwiller's speech
demonstrate that it is solely a matter of private concern. For
this reason, Count III is dismissed.
II. Supplemental Jurisdiction Is Improper for Counts IV
In Counts IV through VII, Ms. Gutzwiller alleges the following
state law claims: assault and battery; intentional infliction of
emotional distress; intentional interference with business; and
defamation and slander. These claims are brought solely against
defendant Henry Gutzwiller. Ms. Gutzwiller argues that these
claims against Mr. Gutzwiller are so intertwined with her claims
against the City of Chicago and Hillard that she should be
permitted to bring her state claims along with her federal claims
under 28 U.S.C. § 1367(a). 28 U.S.C. § 1367(a) states that "[i]n any civil action in which
the district courts have original jurisdiction, the courts shall
have supplemental jurisdictions over all other claims related to
the claims in the original action as provided by Article III of
the Constitution." 28 U.S.C. § 1367(a). In order to determine
whether claims should be combined into one proceeding, courts
apply the test laid out in United Mine Workers v. Gibbs: claims
for which there is no independent basis for jurisdiction must
arise from the same "common nucleus of operative fact." United
Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
The claims in this case do not arise out of the same nucleus of
fact. The tort state law claims arise out of the alleged domestic
violence actions of Mr. Gutzwiller. On the other hand, the
federal law claims for discrimination arise out of the employment
relationship between Ms. Gutzwiller and the City of Chicago.
These claims are so unrelated that it is more efficient to the
parties involved in this case to try the federal law claims
separately from the state law claims.
In Count I of her complaint, Ms. Gutzwiller does not persuade
us that her state law claims would be so intertwined with her
federal claims so as to require them to be tried together. In
this discrimination claim, Ms. Gutzwiller alleges that she was
discriminated against because she is a white woman with a serious
physical hearing impairment. Absent from each of these three
categories is any discrimination based specifically on domestic
violence and/or a supposedly false report submitted by Mr.
Gutzwiller. In order to prevail on this claim, Ms. Gutzwiller
would not need to prove the validity of any of her state law
claims. Accordingly, the state law claims and the federal law
claims are not so intertwined that the court has the need of
trying these claims together. Count II alleges unequal and discriminatory treatment by the
City of Chicago when her employment was terminated. In this
claim, Ms. Gutzwiller does not make any allegations about
defendant Henry Gutzwiller in relation to her alleged
discriminatory discharge. Whether or not the domestic violence
occurred or the report is false is not a fact on which this
motion depends. Instead, what is important to this count is Ms.
Gutzwiller's employment relationship with the Chicago Police
Department. The question of domestic violence and the reasoning
behind Mr. Gutzwiller's report is more properly reserved for
state court consideration. Thus, this Court declines to exercise
its supplemental jurisdiction over the state law claims, and
Counts IV through VII are dismissed.
III. The Chicago Police Department Is Not a Suable Entity
The City of Chicago contends that the Chicago Police Department
should be dismissed as a party to this case because the Chicago
Police Department is not a suable entity. We agree. The Chicago
Police Department does not enjoy a legal existence that is
independent of the City of Chicago and cannot be sued as a
separate entity. Reese v. Chicago Police Dept., 602 F. Supp. 441,
443 (N.D. Ill. 1984). In applying Reese, courts have
reasoned that claims that a plaintiff may bring against the
Chicago Police Department are properly lodged against the City of
Chicago. Moseley v. City of Chicago, 1991 WL 53765, *1, 8 (N.D.
Ill. April 4, 1991). Accordingly, the Chicago Police Department
is dismissed as a party defendant. CONCLUSION
For the foregoing reasons, defendants City of Chicago and
Hillard's motion to dismiss Counts III, IV through VII, and the
Chicago Police Department is granted.
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