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Johnson v. County of Cook

February 10, 2009

VIETTA L. JOHNSON, M.D., AND DANIEL IVANKOVICH, M.D., PLAINTIFFS,
v.
COUNTY OF COOK, ROBERT SIMON, M.D., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, AARON HAMB M.D, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, CLIFFORD CRAWFORD, M.D., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

The plaintiffs in this action, Vietta Johnson, M.D., and Daniel Ivankovich, M.D., are two physicians that formerly worked in the Division of Orthopedic and Podiatric Surgery at one of the largest public health systems in the country, the defendant, County of Cook ("Cook County"). Plaintiffs filed their complaint against Cook County, Aaron Hamb, M.D., Robert Simon, M.D., and Clifford Crawford, M.D., in both their individual and official capacities, alleging: (1) race discrimination; (2) sex discrimination; (3) a First Amendment retaliation claim; (4) a Fourteenth Amendment equal protection claim; and (5) conspiracy. Presently before the Court is Cook County's motion to dismiss counts III, IV, and V and to dismiss plaintiffs' prayer for punitive damages, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, Cook County's motion is granted as to Count V and denied as to Counts III and IV [dkt 17].

I. Background

In February 1998, Cook County hired Dr. Johnson as the Director/Chair of the Division of Orthopedic and Podiatric Surgery at Provident Hospital ("Provident") and Dr. Ivankovich was a surgeon in that same division. As an affiliate, Provident is one of the hospitals that operates under the Cook County Bureau of Health. Cook County terminated both doctors on April 13, 2007, due to a purported "reduction in force" whereby the entire orthopedic and podiatric surgery division at Provident was shut down. At all relevant times, defendant Dr. Simon was Chief of the Bureau of Health, defendant Dr. Hamb was Chief Medical Officer at Provident, and defendant Dr. Crawford was the Chairman of the Department of Surgery at Provident.

Sometime prior to being laid off, plaintiffs and other physicians at Provident had begun union organizing activities and had succeeded in forming a physicians union. Plaintiffs assert that it was their union activities, along with their criticisms of Cook County's business practices and its lack of patient support, that form the basis for their First and Fourteenth Amendment claims and their conspiracy claim. It should be noted that plaintiffs also assert various broad allegations that provide a backdrop for plaintiffs frustrations with Cook County. Most important to the claims at issue here, plaintiffs plead that Cook County has a long standing practice of excluding Blacks and women from management positions and, recently, have concentrated the few Black administrators and the majority of Black physicians at Provident. Plaintiffs then allege that Cook County has a long standing practice of underpaying and overworking Black and female physicians.

Plaintiffs also include in their complaint, however, additional extraneous facts that provide background for their criticisms of Cook County but do little to support the claims at issue. For example, plaintiffs allege: (1) Cook County citizens who seek health care within the system have to wait an excruciatingly long period of time for urgent medical procedures, and years for non- urgent procedures; (2) Cook County claims that the long wait time is due to a lack of funds but Cook County purchased and installed a computer system that did not allow for the billing of insurers or patients; (3) Cook County has a policy of employing attending and resident physicians who work full time at other institutions without requiring that they spend any significant time caring for patients within the Cook County system; and (4) Cook County has a practice of paying high level administrators and executives high six figure salaries while those same administrators and executives work one or more additional full time jobs elsewhere. Alleging the importance of the orthopedic department at Provident, plaintiffs then plead that the orthopedic department led other hospital departments for clinic billing and was the referral hospital, as well as the "safety net," for all the south side hospitals. Finally, plaintiffs include allegations that Cook County has a policy that layoffs proceed from the least senior to the most senior, which did not happen in this case, and that they were not interviewed for open positions prior to the layoff as required, and as provided to other Cook County employees.

II. Standard of Review

For purposes of this motion, the court assumes all well-pleaded allegations in plaintiffs' complaint to be true.*fn1 Defendants move to dismiss plaintiffs' claims on two separate grounds: (1) for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1); and (2) for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). First, a Rule 12(b)(1) motion challenges jurisdiction, or the court's power to decide.*fn2 Plaintiffs hold the burden to establish that jurisdictional requirements have been met.*fn3 A court also may look beyond the complaint to determine whether subject matter jurisdiction exists.*fn4

Second, a Rule 12(b)(6) motion does not test the merits of the case but, rather, the sufficiency of the allegations in the complaint.*fn5 Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief."*fn6 A complaint, therefore, does not need detailed factual allegations but it must contain more than "a formulaic recitation of the elements of a cause of action."*fn7 "Factual allegations must be enough to raise a right to relief above the speculative level," but even if recovery appears to be unlikely, a well-pleaded complaint will survive a motion to dismiss.*fn8

III. Analysis

In the first part of their motion, Cook County disputes this Court's jurisdiction because Counts III, IV and V allege constitutional violations and that defendants conspired against plaintiffs because of their pro-union activities. Cook County, thus, claims these allegations fall under the exclusive jurisdiction of the National Labor Relations Board ("NLRB"). The next part of their motion, however, is less than clear. Cook County lumps together counts III, IV and V and argues that: (1) plaintiffs' First Amendment claims should be dismissed pursuant to the United States Supreme Court ruling in Garcetti v. Ceballos because that case held that an individual employed by the government is not acting as a citizen if he or she makes statements within the scope of his or her employment, so the Constitution "does not insulate their communications from employer discipline;"*fn9 and (2) plaintiffs have failed to plead a cognizable section 1983 due process claim by alleging that they went through a grievance process. But it is evident that these arguments do not relate to all three counts. Therefore, to better address the sufficiency of plaintiffs' complaint the Court will, contrary to defendants' approach, address each claim individually.

As a separate argument with respect to Count V, Cook County asserts that plaintiffs' section 1985 claim should be dismissed because plaintiffs fail to allege a mutual understanding between the individual defendants and argue that the claim is barred by the intracorporate conspiracy doctrine, which provides that a government entity cannot conspire with itself. Finally, Cook County contends that under section 1983, municipalities are immune from punitive damages so plaintiffs prayer for such damages should be stricken.

A. Subject Matter Jurisdiction

Cook County argues that Counts III, IV and V should be dismissed because the NLRB has primary and exclusive jurisdiction over claims relating to unfair labor practices, and plaintiffs plead allegations of union organizing and claim anti-union animus. Cook County cites to what is known as the Garmon preemption doctrine, which provides that states are prohibited "from regulating conduct protected, prohibited or arguably affected by sections 7 and 8 of the National ...


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