The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiff Steven Iovinelli, a firefighter in the Franklin Park Fire Department, has filed a claim for declaratory judgment, injunctive relief, and compensatory and punitive damages against the Village of Franklin Park, Illinois, the Village President Daniel B. Pritchett, and the Department Chief David J. Traiforos, alleging violations of 42 U.S.C. § 1983. This case arises out of a series of allegedly retaliatory employment actions taken against Iovinelli as a result of his challenge to the administration of the Village's Firefighters' Pension Fund while he served as a member of the Village's Firefighters' Pension Board.
In January, 2002 Iovinelli filed a lawsuit in state court against the Village, in which Iovinelli claimed the Village diverted pension fund taxes from the Fund for various political purposes. Iovinelli now claims he has been retaliated against for pursuing that case against the Village. Counts I, II, and III allege First Amendment retaliation, denial of due process, and violation of Equal Protection against all three Defendants. Iovinelli seeks injunctive relief and estoppel in Counts IV and V, where he asks this Court to (1) reinstate him as ladder truck company captain at Station 2; (2) enter a preliminary injunction ordering him elevated to the rank of shift commander pendente lite; and (3) order Defendants to promote him to the position of shift commander when the next opening occurs. Iovinelli additionally seeks back pay and other damages retroactive to June 2003, compensatory damages, attorneys' fees, and punitive damages against Pritchett and Traiforos in their individual capacities.
The Village has filed a 12(b)(6) motion to dismiss, arguing that (1) the action is barred under the doctrine of res judicata; (2) certain allegations in Plaintiff's Complaint are barred under the doctrine of collateral estoppel; (3) Plaintiff's claims must be dismissed because Plaintiff has available state and other remedies; (4) Plaintiff's claims are based solely on the inapplicable doctrine of respondeat superior; (5) Plaintiff's § 1983 claims are barred by the statute of limitations; (6) Plaintiff's speech is not protected by the First Amendment; (7) Plaintiff does not have a protectible property interest in his promotion to the rank of shift commander; (8) Plaintiff is not a member of a protected class for purposes of Equal Protection; and (9) Plaintiff cannot obtain injunctive relief. Defendants Pritchett and Traiforos have each filed 12(c) motions for judgment on the pleadings, arguing basically the same points made in the Village's motion and alternatively claiming qualified immunity from damages because the law was not clearly established when the alleged adverse employment actions were taken. Because of the overlapping facts and intertwined legal issues, I address all three motions here. For the following reasons, the Village's motion is granted in part and denied in part. Pritchett's and Traiforos' motions are similarly granted in part and denied in part.
A Rule 12(b)(6) motion tests the sufficiency of a complaint, not the merits of a case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). The Village's motion to dismiss should be granted only if Iovinelli cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Furthermore, I must accept all well-pleaded factual allegations in the complaint as true, drawing all reasonable inferences from those facts in Plaintiff's favor. Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002). Stated another way, I should not grant the Village's motion "unless no relief could be granted 'under any set of facts that could be proved consistent with the allegations.'" Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). That said, Iovinelli's "obligation to provide the grounds of his entitlement for relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1964-65 (2007).
Rule 12(c) permits a party to move for judgment after the parties have filed the complaint and the answer. Fed. R. Civ. P. 12(c). On a Rule 12(c) motion, I accept as true all well-pleaded material allegations of the non-movant. Cagan v. Intervest Midwest Real Estate Corp., 774 F.Supp. 1089, 1091 n. 2 (N.D. Ill. 1991). I review 12(c) motions under the same standard as 12(b) motions todismiss.*fn1 N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). Judgment on the pleadings is appropriate when, based on the facts admitted, no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law. Cagan, 774 F.Supp. at 1091. The pleadings include the complaint, the answer, and any written instruments attached as exhibits. Fed.R.Civ.P. 10(c); N. Ind. Gun & Outdoor Shows, Inc., 163 F.3d at 452.
Iovinelli opposes on foundation grounds the consideration of the three collective bargaining agreements and a compilation of purported rules and regulations from July 10, 1998, which are attached to Pritchett's motion. Iovinelli contends that the inclusion of these documents converts Pritchett's motion into a Rule 56 motion for summary judgment. Indeed, Rule 12(d) provides that if the court considers "matters outside the pleadings", a Rule 12(b)(6) or Rule 12(c) motion must be treated as one for summary judgment. Fed. R. Civ. P. 12(d). However, a narrow exception to this rule permits this court to take judicial notice of matters of public record without converting a motion for failure to state a claim into one for summary judgment. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). I may take judicial notice of an adjudicative fact that is both "not subject to reasonable dispute" and either
(1) "generally known within [this] territorial jurisdiction, or (2) "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). I may take judicial notice of matters of public record, including "state statutes, city charters, and city ordinances." Demick v. City of Joliet, 108 F.Supp.2d 1022, 1025 (N.D. Ill. 2000). In this case, the 1998 rules and regulations of the Village's Fire Department, adopted by the Village and approved by the Village Board of Trustees, as well as the 1998, 2001, and 2005 collective bargaining agreements, negotiated between the union and the Village, authorized by the Village Board of Trustees, and executed by the Village President, are proper subjects for judicial notice because they have been duly promulgated and are matters of public record. See Driebel v. City of Milwaukee, 298 F.3d 622, 630, n.2 (7th Cir. 2002) (court judicially noticed duly promulgated Milwaukee Police Department Manual of Rules and Regulations).
Also, Rule 12(c) permits me to consider documents attached to the pleadings. Baker v. Potter, 175 Fed.Appx. 759, 762 (7th Cir. 2006). The Rule, which is permissive in nature and has historically been interpreted broadly by the Seventh Circuit, provides that a "copy of any written instrument which is an exhibit to a pleading is part thereof for all purposes." Fed. R. Civ. P. 10(c); Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993). Although Iovinelli was under no obligation to attach to his complaint documents on which his action is based, Defendants may introduce pertinent documents as attachments to their motions. Venture Associates, 987 F.2d at 431. The collective bargaining agreements and rules and regulations that Pritchett attached to his motion are central to Iovinelli's claim because they govern the terms and conditions of Iovinelli's employment with the Village. Therefore, I consider those documents along with the pleadings in my rulings here.
Incidentally, this Court can also take judicial notice of the decisions of federal and state courts. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 607 n.30 (7th Cir. 1993). The parties have filed several motions inviting my attention to supplemental authority, including caselaw, which I have judicially noticed.
Plaintiff alleges the following basic facts, which must be accepted as true for purposes of Defendants' motions:
Plaintiff Steven Iovinelli has worked as a firefighter in the Franklin Park Fire Department since 1980. By all accounts Iovinelli has been an outstanding employee throughout his tenure at the Department. The ranks at the Department progress from firefighter, to lieutenant, to captain, to shift commander, and then to chief. Iovinelli rose through the ranks in the Department and was promoted to captain in 1997. As captain, Iovinelli simultaneously achieved the rank of acting shift commander, a position that entails assuming command responsibilities whenever the appointed shift commander is absent. Those responsibilities include fire and emergency incident command and managing firefighters and paramedics on duty during a 24-hour shift.
In addition to his duties as captain, Iovinelli completed a number of technical training programs which qualify him for special duties. These include Fire Officer I, Fire Officer II, Hazardous Material Incident Commander/Tech B, Incident Safety Officer, WMD Technician, Instructor III, and Fire Prevention Officer. Iovinelli's expertise in automobile extrication and roof ventilation has been recognized outside the Department, where he has been called upon to teach courses to firefighters in other areas of the Division. In his part-time employment, Iovinelli serves as deputy chief of the River Grove Fire Department. He is also a member of the Division 20 Hazardous Materials Team and part of the statewide WMD Response force. He was recently appointed a Primary Advisor on the National Fire Protection Association's Technical Committee 385, which reviews national standards governing the transportation of flammable liquids. All of these qualifications render Iovinelli an adept member of the Franklin Park Department.
Defendant David J. Traiforos is the Chief of the Franklin Park Fire Department. Traiforos became Chief in 2000. As Chief, Traiforos is a final policy-making official of the Village with respect to the selection of shift commanders and other officer assignments within the Department. Traiforos consistently gave Iovinelli high reviews for his performance in the Department, including on his recent August 2006 evaluation. That evaluation indicates outstanding or exceeding expectations in every category.
Defendant Daniel Pritchett is the Village President and also a final policy-making official of the Village with respect to terms and conditions of employment within the Department that are not regulated by statute or ordinance, by the collective bargaining agreement, or by rules and regulations promulgated for the Department.
Defendant Village is a municipality located in Cook County, Illinois.
Iovinelli and William G. Horn, a fellow firefighter in the Department, were elected to the Franklin Park Firefighters' Pension Fund's board of trustees in 1997 and 1990, respectively.*fn2
While serving as a trustee, Iovinelli discovered certain unlawful practices on behalf of the Village regarding contributions to the Fund. In 1997, the Illinois Department of Insurance ("DOI") reported to the Pension Board that the Village was withholding hundreds of thousands of dollars of real estate taxes that should have been remitted to the Fund, as well as a portion of personal property replacement taxes. The DOI issued similar reports over the next several years. In the fall of 1998, Iovinelli and Horn, who was then president of the Board, repeatedly urged the Board to take action to redress the ever-increasing underfunding. According to Iovinelli, Pritchett opposed and resisted any action that would cause the Village to change its practices because the diversion of taxes from the Fund amounted to an interest-free loan which Pritchett could use for various political benefits. Iovinelli claims that Pritchett not only mislead taxpayers, but he violated his fiduciary duty as trustee when he advanced his own political interests over the financial security of the firefighters. Pritchett and other ex officio members of the Board within his influence, says Iovinelli, agreed to not attend meetings in order to defeat a quorum and generally blocked any efforts to investigate the cause of the underfunding. In 2000, the Board made a written demand that the Village pay $4 million to the Fund out of an alleged $14 million surplus collected from a municipal utility user tax. A few months later the Village paid about $130,000 into the Fund.
Iovinelli served as a firefighter in the Department without incident until he began to voice concerns over the Village's funding practices. Iovinelli alleges that as he continued to pursue efforts to remedy the possible underfunding, he faced a series of retaliatory actions initiated by Pritchett and implemented by Traiforos. The first retaliatory act occurred when Pritchett told Traiforos to remove Iovinelli as training officer. Traiforos initially resisted, but on September 20, 2001, Traiforos announced in front of the entire Department that Iovinelli would be stripped of his training officer responsibilities.
By January 2002, the Fund had accumulated over $8 million in unfunded liabilities and, as a result, the Board was unable to obtain to liability insurance. Faced with continued opposition from Pritchett and the other ex officio members of the board, Iovinelli and Horn decided to pursue the matter in state court. On January 30, 2002, Iovinelli and Horn filed a state court action against the Village in the Circuit Court of Cook County pursuant to the authority of Section 1-115 of the Illinois Pension Code, which authorizes civil actions brought by "the Attorney General, participant, beneficiary, or fiduciary," for the purposes of enjoining or seeking other relief to redress any violations of the Pension Code. 40 ILL. COMP. STAT. 5/1-115. The complaint alleged that the Village diverted pension fund taxes away from the Fund for improper political purposes in violation of the Illinois pension fund statute.
The litigation in the Circuit Court progressed for several years. In May 2003, during the briefing on the second motion to dismiss, the shift commander position became available in the Department. Iovinelli submitted his resume for the position, and he was the only one to do so, given that the senior ranking officer traditionally received the appointment. According to Iovinelli, in or around 1991, when the shift commander position was first created, the Village president and fire chief stated to the Department and the board of trustees that the position would always be filled by the senior ranking officer. Iovinelli alleges that Pritchett reiterated the policy to the Department over the years, and that Traiforos explicitly endorsed the policy when filling vacancies between 1996 and 2003. However, when the vacancy occurred in 2003, Iovinelli was not appointed to the position. According to Iovinelli, on June 3, 2003, Traiforos told him that Pritchett had ordered Traiforos to solicit other candidates for the position. Iovinelli believed that the process was a sham to conceal Pritchett's malicious intent to deny Iovinelli the shift commander promotion in retaliation for Iovinelli's involvement in the ongoing pension fund lawsuit in state court.
On June 27, 2003, Iovinelli had another conversation with the Chief in which Traiforos said he had recommended Iovinelli for the shift commander appointment. The vacancy was created by the retirement of Commander Jack Panzica, who also recommended Iovinelli as his replacement. Pritchett allegedly responded to Traiforos' recommendation by holding up Iovinelli's resume in one hand and an invoice from the Village's litigation counsel in the other and saying, "This is why Captain Iovinelli will never be shift commander." The promotion to the shift commander position was eventually given to a junior officer who had no prior command experience.
As the pension fund litigation continued, Iovinelli was called into Traiforos' office for another meeting. Once there, Iovinelli allegedly learned that Pritchett was demanding that Iovinelli be removed as acting shift commander, despite the fact that Iovinelli had the most experience in the Department. Pritchett's demand was, according to Iovinelli's complaint, overruled by the Village attorney out of concern for liability. Iovinelli kept the position of acting shift commander and remained so for the next year.
The Circuit Court order ultimately disclosed that the Village had indeed met its legal funding obligations, save $42,481.67 of interest owed on untimely payments, which appeared to be the result of the complexity of the accounting process. The Court found that no monies were diverted for Village use that should have been paid into the Fund.
The Circuit Court's order was sent by mail and received by counsel for each party on September 7, 2005, or later. On September 9, 2005, in what seemed to be a favorable turn of events, Traiforos elevated Iovinelli to the position of shift commander to cover the extended medical leave of the commander at that time. However, on September 19, 2005, Traiforos informed Iovinelli that Pritchett had been on vacation when the order in the pension fund case was received. Upon learning of the outcome and of Iovinelli's interim promotion, Pritchett was livid and demanded that Traiforos replace Iovinelli immediately. Three weeks later, Traiforos told Iovinelli that Pritchett had "started a file" on Iovinelli and warned Iovinelli that Pritchett "is gunning for you," or words to that effect.
Two months later, on December 9, 2005, Traiforos took payroll duties away from Iovinelli. When asked for a reason, Traiforos responded, "you know why." A week later Traiforos took all personnel and scheduling responsibilities away from Iovinelli, and he told Iovinelli that the decision to do so was made by Pritchett. On January 18, 2006, Traiforos told Iovinelli that Pritchett was still not satisfied and wanted Iovinelli relieved of all remaining responsibilities. Those included incident reporting and false alarm billing. Iovinelli was allowed to continue performing those tasks, but only, he alleges, so long as Pritchett did not find out about it.
Another ruling in the pension fund case was issued by the Circuit Court on January 30, 2006 and entered as an order on February 21, 2006. That order addressed the Village's motion to reconsider and for clarification. The Village was ordered to follow a prescribed formula in setting all future tax levies and to pay interest for past due non-compliant practices. Iovinelli petitioned for supplemental relief, which was granted in part on August 28, 2006. As the prevailing party, Iovinelli was awarded his costs and expenses ($18,000) for expert witness fees. The Circuit Court noted the benefits conferred by the litigation:
Here, the result obtained . . . cannot be measured by the amount of money received by the fund because of untimely payments made to the Fund. Rather, the greater benefit is in the clarification of the process to be used, as well as the express requirement of timely payments. . . . Where a business or governmental agency either reduces or delays required payments to a pension fund, the fund not only loses the money during the time the obligation remains unfulfilled, but also loses the ability to invest those sums in order to increase the returns for the ultimate beneficiaries. This lack of compliance with contractual or statutory obligations unnecessarily increases the future liability of shareholders or taxpayers in geometric rather than arithmetic proportions.
Two weeks later, Traiforos announced that Iovinelli and Horn would be transferred from Station 2, the Department's headquarters, to Station 3, a single engine post on the outskirts of town, as of January 1, 2007. Iovinelli would be moved from ladder truck captain at Station 2 to engine officer at Station 3. Iovinelli considers such a move retaliatory and claims he has suffered severe emotional distress and professional humiliation as a result. Indeed, Defendants admit that the firefighter's union considers the reassignment to be punitive. The transfer precludes Iovinelli from applying for full-time command positions in other Departments because most, if not all, chief positions require applicants to have reached the minimum rank of shift commander.
On January 1, 2007, Iovinelli was involuntarily relegated to the position of engine officer at Station 3. Iovinelli filed a grievance to dispute the transfer to Station 3 in accordance with the terms of the collective bargaining agreement. At the time of briefing, the ...