United States District Court, N.D. Illinois, Eastern Division
October 19, 2004.
CLARENCE GROSS, Plaintiff,
TOWN OF CICERO; BETTY LOREN-MALTESE, former President of the Town of Cicero, in her official and individual capacity; and RAMIRO GONZALEZ, President of the Town of Cicero, in his official and individual capacity, Defendants.
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. 14 (1985); Rascon v. Hardiman, 803 F.2d 269, 274
(7th Cir. 1986). Accordingly, Plaintiff's official capacity
claims against Loren-Maltese as to Counts I and II are dismissed.
All Claims Against Loren-Maltese Are Barred By the Statute of
Loren-Maltese also argues that Counts I and II against her
should be dismissed because the Plaintiff's claims are barred by
the statute of limitations. In addition, Loren-Maltese contends
that she cannot be liable for any conduct occurring after she
resigned as Town President.
The statute of limitations for a § 1983 claim is two years.
Hildebrandt v. Illinois Dept. of Natural Resources,
347 F.3d 1014, (7th Cir. 2003); Licari v. City of Chicago, 298 F.3d 664
(7th Cir. 2002). According to Loren-Maltese, the Plaintiff's
claim cannot rest on any conduct that occurred before December
31, 2001 (two years before the complaint was filed). In addition,
to bring a § 1983 claim, the Plaintiff must plead and prove that
the Defendant acted "under color of state law." See Ross v. Town
of Austin, 343 F.3d 915 (7th Cir. 2002). Loren-Maltese argues
that once she resigned on August 1, 2002, she was no longer
acting "under color of state law" and, that therefore, no § 1983
claim exists beyond her resignation. According to Loren-Maltese,
the only actionable conduct against her had to occur between
December 31, 2001 and August 1, 2002. Because the Plaintiff makes
only one allegation occurring within this time period,
Loren-Maltese argues that she cannot be liable under a § 1983
A defendant can be held liable under § 1983 if "he caused or
participated in the alleged constitutional deprivation."
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). A
supervisory official takes part in the deprivation if he "acts or
fails to act with a deliberate or reckless disregard of
plaintiff's constitutional rights, or if the conduct causing the
deprivation occurs at his direction or with knowledge or consent." Crowder v. Lash,
687 F.2d 996, 1005 (7th Cir. 1982). If the supervisors know about the
harassing conduct and "facilitate it, approve it, condone it, or
turn a blind eye for fear of what they might see," they act with
deliberate, reckless indifference. Jones v. City of Chicago
856 F.2d 985, 992-93 (7th Cir. 1988).
The Plaintiff pled incidents occurring within the statute of
limitations against Loren-Maltese. In January 2002, Plaintiff was
removed from the position of Chairman of the Board of Fire and
Police Commissioners; and in January 2002, Plaintiff was
terminated from his position as Director of Internal Services.
Furthermore, the Plaintiff alleges that Loren-Maltese was
personally involved in the retaliation against him after her
resignation. The Plaintiff asserts that one month after
Loren-Maltese resigned, Loren-Maltese had him removed from his
position as Deputy Liquor Commissioner. See National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 at 103 (emphasizing that
"subsequent events may still be part of one claim.").
Accordingly, Plaintiff's Section 1983 claims against
Loren-Maltese are not barred by the statute of limitations.
Political Patronage Exemption Exception
Loren-Maltese argues that the Plaintiff's claim must be
dismissed against her because the Plaintiff held "exempt"
positions and, therefore, cannot bring claims for violations of
his constitutional rights under § 1983.
The patronage dismissal of a public employee violates an
employee's First Amendment right to freedom of political
association. Kline v. Hughes, 131 F.3d 708, 709 (7th Cir. 1997)
(Kline). However, an exception arises when "the hiring
authority can demonstrate that the party affiliation is an
appropriate requirement for the affected performance of the
public office involved." Kline, 131 F.3d at 709. The courts
must determine whether "the position held by the individual
authorizes, either directly or indirectly, meaningful input into governmental
decision making on issues where there is room for principled
disagreement on goals or other implementation." Kline,
131 F.3d at 709. According to Loren-Maltese, the Plaintiff's positions
allowed the Plaintiff to be a member of the inner circle of
Cicero's government. Because he was responsible for policymaking,
goals, and their implementation, he had meaningful input and,
therefore, cannot sue for his alleged termination from the
various positions he held.
However, the "exempt" position exception applies only to
political affiliation claims under the First Amendment and not to
free speech claims. See Kline, 131 F.3d at 709 (a political
patronage case based upon political affiliation); Elrod v.
Burns, 427 U.S. 347 (1976) (a political patronage case based
upon political affiliation). The Plaintiff does not claim he was
terminated from his positions because of his political
affiliation, but he was terminated based on free speech grounds.
Even if the Plaintiff was in an "exempt" position, his claims are
not barred by the political patronage exception because he is not
basing his First Amendment claim on political affiliation.
Therefore, Defendant's Motion to Dismiss Count I pursuant to the
political patronage exception is denied.
The Plaintiff's Speech is Not "Protected Speech"
Loren-Maltese, Cicero, and Gonzalez argue that Count I should
be dismissed against them because the Plaintiff has not alleged
any constitutional protected "free speech."
The Seventh Circuit applies a three-step analysis when
determining whether speech constitutes a matter of public
concern. Brown v. Disciplinary Committee, 97 F.3d 969, 972 (7th
Cir. 1996) (Brown). First, the court considers whether the
speech would be protected if someone other than a public employee
had made the statement. Brown, 97 F.3d at 972. Second, the
court determines whether the speech is something more than an
employee grievance. Brown, 97 F.3d at 972. Finally, if the court determines that the speech is not an
employee grievance, the court must then make a decision as to
whether there was a convincing reason to forbid the speech.
Brown, 97 F.3d at 972.
Plaintiff has sufficiently pled her First Amendment claim to
put Defendants on notice of his claim. Where speech is intended
to serve a private or personal interest, it may not meet the
standards for First Amendment protection, even if it addresses an
issue of public interest. Friend v. Lalley, 194 F. Supp. 2d 803
(N.D.Ill. 2002). However, while the speaker's motivation is
significant, the mere presence of personal motive does not
prevent it from being a matter of public concern. Auriemma v.
Rice, 910 F.2d 1449, 1460 (7th Cir. 1990). The Plaintiff alleges
that he was retaliated against for complaining about sexual
harassment within the police force and Cicero and after he
expressed his willingness to tell the truth and testify in the
case of Moreno. After receiving a subpoena to testify in the
Moreno case against Cicero, the Plaintiff was allegedly
threatened to remain silent and lie if called to testify or else
he would be denied his back pay. These threats are a matter of
public concern and have a broader impact on the community and
public welfare. Accordingly, the Motion to Dismiss Count I is
Cicero and Gonzalez's Argument That The Plaintiff Has No Equal
Cicero and Gonzalez argue that the Plaintiff has no Equal
Protection claim because there are a host of conceivable
legitimate governmental purposes which bear a rational
relationship to the Plaintiff's being removed from his various
The Equal Protection Clause grants to all citizens "the right
to be free from invidious discrimination in statutory
classifications and other governmental activity." Baumgardner v.
County of Cook, 108 F. Supp. 2d 1041, 1054-56 (N.D.Ill. 2000)
("A single act against one individual can be a violation of the Equal Protection Clause . . . it is
sufficient to prove discrimination against the plaintiff because
of his membership in a particular class."). Under a "class of
one" theory, the plaintiff must allege that "(1) he was
intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in
treatment, or (2) the government is treating unequally those
individuals who are prima facie identical in all relevant
respects, and that the cause of the differential treatment is a
totally illegitimate animus toward him [by the governmental
entity]." Murphy v. County of McHenry, No. 02 C 50283, 2003 WL
1908045 (N.D. Ill. April 18, 2003).
The Plaintiff alleges that he was discriminated against because
of his familial association with his daughter and because he and
his daughter complained about the harassment of her superior
officer. Cicero and Gonzalez argue that the Plaintiff has no
Equal Protection claim because there is no fundamental right to
"familial association" anywhere in the Constitution or Bill of
The Plaintiff alleges that Cicero's and Gonzalez's actions
against him were intentional, willful, malicious and/or in
deliberate indifference for his rights as secured by § 1983 and
that he was terminated from his positions for reasons wholly
unrelated to any legitimate state objective. See Lunini v.
Grayeb, 305 F.Supp. 2d 893, 909 (C.D. Ill. 2004) (emphasizing
that "[the plaintiff] must show that the cause of the
differential treatment toward him was a totally illegitimate
animus on the part of the City Defendants."). The Plaintiff has
sufficiently pled that he was terminated from his positions based
on invidious discrimination and irrational prejudice. See
Baumgardner, 108 F.Supp. 2d at 1054-56 ("[T]he state actions
must still bear a rational relationship to a legitimate
government interest . . . The Equal Protection Clause exists to
protect people from invidious discrimination and irrational
prejudice. While Defendants may or may not ultimately prevail by
offering a reasonable basis for their actions, the Plaintiff has
pled facts sufficient to survive a 12(b)(6) motion to dismiss."). Accordingly, the Motion to Dismiss Count II against
Cicero and Gonzalez is denied.
In addition, Gonzalez argues that the Plaintiff has not pled an
Equal Protection claim against him because the Plaintiff pled no
facts to suggest a conspiracy involving him and Loren-Maltese to
remove the Plaintiff from the position of Deputy Liquor
Commissioner. However, the Plaintiff alleges that Gonzalez knew
of his daughter's EEOC charge and, therefore, removed him from
his position in retaliation. Therefore, the Motion to Dismiss
Count II against Gonzalez is denied.
For the foregoing reasons, Loren-Maltese', Cicero', and
Gonzalez's Motions to Dismiss are denied except that Plaintiff's
official capacity claim against Loren-Maltese as to Count II is
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