The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Clarence Gross, filed suit against Defendants, the
Town of Cicero; Betty Loren-Maltese, in her official and
individual capacity; and Ramiro Gonzalez, in his official and
individual capacity, under the First and Fourteenth Amendments to
the Constitution of the United States, 42 U.S.C. § 1983 and the
Civil Rights Act of 1991. Count I alleges a § 1983 violation of
the First Amendment against Cicero, Loren-Maltese, and Gonzalez.
Count II alleges a § 1983 violation of Equal Protection against
Cicero, Loren-Maltese, and Gonzalez. Presently pending before the
Court is: (1) Loren-Maltese's Motion to Dismiss Gross's Complaint
and (2) Cicero and Gonzalez's Joint Motion to Dismiss Gross's
A reading of Gross's complaint supports the following summary
of the alleged conduct of the parties.
Gross was employed in various positions by Cicero for thirty
years. He retired in April of 1997 as the Chief of Police for the
Cicero Police Department. After retiring, Gross was appointed by Loren-Maltese to the position of Deputy Liquor Commissioner,
Director of Internal Services and Chairman of the Board of Fire
and Police Commissioners. Gross was also a 911 Board Member and a
Hearing Officer. In addition, Gross received an accommodation
from Loren-Maltese for thirty years of police excellence.
In 2001, Gross went to Loren-Maltese on several occasions and
complained about his daughter, a police officer, being sexually
harassed by her superior officer, Jerald Rodish. Gross expressed
his concerns for his daughter's safety as a result of Rodish's
harassment and threats. Because no remedial action was taken by
Cicero's supervisory staff or Loren-Maltese, Gross's daughter
filed a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC") in June of 2001. After his
daughter filed the EEOC charge, Gross had a meeting with
Loren-Maltese, at which time Loren-Maltese stated, "I can no
longer trust you or your daughter because of this EEOC thing."
After the meeting with Loren-Maltese and Gross, he was removed
from the positions he held. In October of 2001, Gross was
excluded from the 911 Board meetings and no longer acted in the
capacity as a Board member. In late 2001, Loren-Maltese called
Gross to inform him that he would not be reappointed as the
Chairman of the Board of Fire and Police Commissioners for 2002;
and Gross was removed from this position in January of 2002. In
January of 2002, Gross was no longer given assignments in his
capacity as Director of Internal Services and was later
terminated from this position. On September 23, 2002, Gross
received a letter from Gonzalez, who was aware that Gross's
daughter filed an EEOC discrimination charge, notifying him of
his removal from the position of Deputy Liquor Commissioner. After receiving this letter, Gross phoned Edward Vrdolyak and
was told by Vrdolyak, "I cannot understand why she did this to
you" (referring to Loren-Maltese). On December 31, 2002, Gross
sent Vrdolyak a letter requesting compensation for back pay,
vacation, accumulated sick time, overtime, and money from the
retirement buy-out, all of which was owed to Gross by Cicero.
Gross received no response and sent another letter to Vrdolyak on
February 24, 2003, concerning the amount owed to him. However, it
was not until after August of 2003 that Gross received a call
from Vrdolyak concerning the money owed. Gross had been
subpoenaed in the case of Moreno v. Town of Cicero, Case No. 01
C 1726 (N.D.Ill), after being identified as a witness by the
plaintiff in that case. Vrdolyak informed Gross that Cicero would
not pay him his backpay until after the Moreno case had
settled. Vrodolyak also threatened Gross and told him to remain
silent in the Moreno case and, if called to testify, not to
tell the truth.
Gross was discriminated and retaliated against for complaining
about sexual harassment and retaliation directed at his daughter
and for his willingness to tell the truth and testify in the
In reviewing a motion to dismiss, the court reviews all facts
alleged in the complaint and any inferences reasonably drawn
therefrom in the light most favorable to the plaintiff.
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323,
326 (7th Cir. 2000). A plaintiff is not required to plead the
facts or the elements of a claim, with the exception found in
Federal Rules of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002) (Swierkiewicz); Walker v. Thompson,
288 F.3d 761, 764 (7th Cir. 2002). A filing under Federal Rules
of Civil Procedure need not contain all the facts that will be
necessary to prevail. It should be "short and plain," and it suffices if it notifies the defendant of the principal events.
See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003).
Dismissal is warranted only if "it appears beyond a doubt that
the plaintiff can prove no set of facts in support of its claims
that would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is
possible to hypothesize the facts, consistent with the complaint
that would make out a claim." Graehling v. Village of Lombard,
Ill, 58 F.3d 295, 297 (7th Cir. 1995). The simplified notice
pleading relies upon liberal discovery and summary of motions to
define disputed issues and facts and to dispose of unmeritorious
claims. See Swierkiewicz, 534 U.S. at 513.
The Defendants present several arguments as to why most of
Plaintiff's Complaint should be dismissed.
Official Capacity Claims Against Loren-Maltese
Loren-Maltese argues that the Plaintiff's "official capacity"
claims against her should be dismissed because the claims are
identical to those asserted against Cicero and are based on the
same set of allegations.
Official capacity suits are akin to bringing suits against the
entity, here, a municipality itself. "As long as the government
entity receives notice and an opportunity to respond, an official
capacity suit is, in all respects other than name, to be treated
as a suit against the entity." See Contreras v. City of
Chicago, 920 F.Supp 1370, 1376 n. 1 (N.D.Ill. 1996) (dismissing
sua sponte official capacity claims). In addition, courts have
emphasized that civil rights claims against individual defendants
in their official capacities are redundant of the claims brought
against a governmental entity and, therefore, must be dismissed. See Kentucky v. Graham,
473 U.S. 159, 167 n. ...