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McDonough v. City of Chicago

June 2, 2008

PATRICK MCDONOUGH, PLAINTIFF,
v.
CITY OF CHICAGO, DEPARTMENT OF WATER MANAGEMENT; ALEXANDER VROUSTOURIS; RICHARD RICE; MICHAEL TIERNEY; BRIAN MURPHY; THOMAS BRIATTA; ANTHONY LAURINO; THOMAS COOK; THOMAS TALLEY; MAUREEN EGAN; AND THE HUMAN RESOURCES BOARD OF THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM, OPINION AND ORDER

This case is before the Court on the motions of Defendants City of Chicago, the Human Resources Board of the City of Chicago, Alexander Vroustouris, Richard Rice, Brian Murphy, Thomas Talley, Maureen Egan, Thomas Briatta, Michael Tierney, Anthony Laurino, and Thomas Cook to dismiss Plaintiff Patrick McDonough's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1). For the following reasons, the motions to dismiss are granted in part and denied in part.

BACKGROUND

The following facts are taken from Plaintiff's Complaint and are presumed to be true for purposes of this motion. In 1999, Plaintiff Patrick McDonough was hired by the City of Chicago Water Department as a plumber and assigned to the North District. From 1999 to 2001, McDonough performed his duties in the Water Department without incident. In 2001, McDonough allegedly began to observe a pattern involving trucks hired by the Water Department. He believed that these hired trucks, owned by people with political connections to City administration, would sit idle at work sites, failing to deliver any services of value for the taxpayers of the City of Chicago. Because the arrangement did not appear ethical or legal to McDonough, he brought his concerns to the Inspector General.

Thereafter, McDonough allegedly began to experience retaliation on the job. The retaliation allegedly included things such as reduced overtime opportunities, denial of promotions, and being removed from his previously stable work crew and instead being switched around from work crew to work crew, a less desirable arrangement. McDonough allegedly was also subjected to differential enforcement of the Department's rules, such as an unfair application of a new card "swipe" policy, and being "written up" for purported infractions even though he had not broken any rules. Faced with this treatment, McDonough continued to make complaints within the Water Department, including grievances and complaints to the Inspector General.

Among other things, McDonough alerted the Inspector General that overtime in the Department allegedly was distributed at least in part based on cash bribes to the supervisors, political activity, or intervention by Aldermen; that safety regulations allegedly were being flouted; that gambling and drinking on the job allegedly were widespread; that the Hired Truck problem allegedly was continuing unabated; and that McDonough allegedly was being unfairly persecuted at the workplace for bringing the foregoing to the Inspector General's attention. McDonough alleges that his complaints to the Inspector General were ignored.

In 2003, McDonough met with Mark Brown, a columnist for the Chicago Sun Times and blew the whistle on the Hired Truck program and other alleged corruption in the Water Department. With McDonough's assistance, Mark Brown proceeded to write several columns in the Sun Times about the alleged corruption in the Hired Trucks program, as did other reporters. McDonough alleges that it was well known in the Water Department that he was a source for the information in these articles, and McDonough allegedly was routinely referred to on the job as a "rat", as well as other derogatory terms. He also received threats to his physical safety.

Thereafter, McDonough took his concerns to the FBI and several people have pled guilty in the resulting Hired Trucks criminal prosecutions, including the former Commissioner of the Water Department, Donald Tomczak. McDonough alleges that he believes that the federal authorities are continuing to investigate possible criminal charges against other officials.

McDonough alleges that he paid a price for his activities. He alleges that in or about October of 2004, he was ordered to meet with investigators from the Inspector General's office regarding false and retaliatory allegations against him. Thereafter, McDonough was placed on paid leave for the entire winter of 2004-05 and, as a result, was deprived of overtime opportunities. On April 1, 2005, the Water Department fired McDonough. The explanation allegedly provided was that McDonough had violated the City's residency rules. McDonough alleges that this basis for the termination was untrue and pretextual, as McDonough did not violate the residency requirements or any other rules.

A hearing was held before the Personnel Board of the City of Chicago on the propriety of McDonough's termination. On January 17, 2006, the City hearing officer issued a written decision, primarily concluding that the City had failed to prove that McDonough's legal residence was anywhere other than the City of Chicago and that, therefore, his discharge was improper. Accordingly, the City hearing officer recommended that the City rescind the discharge of McDonough's employment. On January 24, 2006, the City's Human Resources Board upheld the City hearing officers' recommendation and reinstated McDonough's job.

McDonough returned to work on February 16, 2006. Since then, McDonough allegedly has experienced further retaliation as a result of his speech on matters of public concern. Specifically, among other things, McDonough allegedly was re-assigned to a different, less geographically convenient district and a less desirable shift. McDonough also allegedly experienced a demotion in his position and a reduction in pay.

On May 16, 2006, McDonough filed his six-count Complaint against the City and the individual defendants in their individual capacities. In Count I, McDonough alleges that the City and the individual defendants retaliated against him for his exercise of protected speech in violation of the First Amendment pursuant to 42 U.S.C. § 1983. In Count II, McDonough alleges that the City and the individual defendants victimized him based on his membership in a class of whistleblowers who spoke out against corruption in the Water Department, thereby depriving him of his equal protection rights as protected by the Fourteenth Amendment in violation of 42 U.S.C. § 1983. In Count III, McDonough alleges a conspiracy in violation of 42 U.S.C. § 1983. In Count IV, McDonough claims violations of the Shakman consent decree. In Count V, he brings a claim pursuant to the Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/4. Finally, Count VI is a state law petition for writ of certiorari challenging certain portions of the Human Resources Board's decision.

DISCUSSION

In ruling on a motion to dismiss, the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Reg., 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). Under Fed. R. Civ. P. 8(a)(2), a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has interpreted that language to impose two minimal hurdles. "First, the complaint must describe the claim in sufficient detail to give the defendant 'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007); Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the complaint's allegations "must plausibly suggest that the defendant has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court." Concentra Health, 496 F.3d at 776-77 (citing Bell Atlantic, 127 S.Ct. at 1965, 1973 n.14).

I. Statute of Limitations

In Counts I-III, McDonough alleges that his First and Fourteenth Amendment rights were violated in contravention of § 1983. In those counts, McDonough complains of discriminatory acts which allegedly took place between 2001-2006. It is well established that the statute of limitations period for § 1983 claims is two years. See Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993). Defendants argue that all claims brought pursuant to ยง 1983 that are based on incidents that occurred prior to May 16, 2004 should be dismissed because they are untimely. McDonough argues that because much of the Defendants' actions occurred within the permitted time period, his claims survive. McDonough ...


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