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GROSS v. TOWN OF CICERO

October 19, 2004.

CLARENCE GROSS, Plaintiff,
v.
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 Complaint.

BACKGROUND

  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 Moreno case.

  ANALYSIS

  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. ...


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