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GUTZWILLER v. CITY OF CHICAGO

July 8, 2004.

JILL GUTZWILLER, Plaintiff,
v.
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.

BACKGROUND

  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 Department.

  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 probationary officer.

  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 slander.

  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 Granted

  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 ...


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