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Austin v. Cook County

March 25, 2009

TERRENCE G. AUSTIN, PLAINTIFF,
v.
COOK COUNTY, COOK COUNTY COMMISSIONER TONY PERAICA, COOK COUNTY EMPLOYEE ROBERT KOBEL, 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 motion of defendants County of Cook, Cook County Commissioner Anthony Peraica ("Peraica"), and Robert Kobel to dismiss plaintiff's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion is granted in part and denied in part. We deny defendants' motion to dismiss with respect to Counts I-IV, and we grant defendants' motion to dismiss with respect to Counts V-XII.

BACKGROUND

Plaintiff Terrence G. Austin ("Austin") filed a complaint against Cook County in the Circuit Court of Cook County on or about March 1, 2007. Austin then filed a pro se complaint against Cook County in this court on June 6, 2007. Subsequently, Austin voluntarily dismissed the state court proceeding on August 30, 2007 and proceeded solely in this court. On September 14, 2007, Austin amended his complaint to include defendants Peraica and Kobel, as well as Cook County Commissioner Elizabeth Gorman, and several defendants from the Village of Bridgeview. Peraica was served with the complaint on October 15, 2007 and Kobel was served on November 14, 2007. Austin then obtained counsel, who filed their appearances on June 11, 2008 and requested leave to amend the complaint a second time. On August 8, 2008, Austin filed a second amended complaint, naming Cook County, Peraica, and Kobel as the only defendants and setting forth allegations only as to Cook County, Peraica, and Kobel.

The allegations in the second amended complaint stem from Austin's alleged discharge as an employee of Cook County on August 11, 2005. Austin alleges that on July 7, 2005 he was treated at the Advocate Christ Hospital in Oak Lawn, Illinois, and that before he was released Peraica and Kobel gained possession of his confidential medical information and records. Austin further alleges that Peraica notified the Cook County Department of Human Resources of Austin's suspension on July 7, 2005, and then actually suspended him on July 11, 2005. Subsequently, Peraica allegedly fired Austin on August 11, 2005, charged him with "official misconduct," and attempted to block him from receiving state unemployment benefits. Finally, Austin alleges that these negative actions taken against him were the result of his refusal to perform Peraica's political projects.

Based on the series of events alleged above, Austin asserts several claims against defendants. Counts I and II allege that Cook County violated Austin's rights under Section (a)(1) and (a)(2) of the Family Medical Leave Act ("FMLA"), respectively. 29 U.S.C. §§ 2615(a)(1)-(2). Counts III-VI state the same allegations of FMLA violations by Peraica and Kobel. In Count VII, Austin alleges that the hiring, promotion, and discharge practices of Cook County violate the Shakman decree, while Count VIII sets forth the same allegations against Peraica, and Count IX alleges that Peraica and Kobel conspired to violate the Shakman decree.

In Count X Austin ostensibly sets forth a claim under 42 U.S.C. § 1983 by alleging that Cook County acted under color of state law and unlawfully suspended and discharged Austin because of political affiliations and patronage. Count XI alleges the same claim against Peraica, and Count XII alleges that Peraica and Kobel conspired to suspend Austin because of political affiliations and patronage, also under color of state law. We now turn to defendants' motion to dismiss plaintiff's second amended complaint.

STANDARD OF REVIEW

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must accept all well-pled allegations in the complaint as true and draw all reasonable inferences in a light favorable to the plaintiff. Jackson v. E.J. Branch Corp., 176 F.3d 971, 978 (7th Cir. 1999). A complaint must describe the claim with sufficient detail as to "give the defendants fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Further, the "allegations must plausibly suggest that the defendant has a right to relief raising that possibility above a 'speculative level.'" EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007)(quoting Twombly, 550 U.S. at 555).

DISCUSSION

I. Counts I and II: Alleged FMLA Violations by Cook County

Counts I and II allege that Cook County, violated Sections (a)(1) and (a)(2) of the FMLA. 29 U.S.C. §§ 2615(a)(1)-(2). Austin claims that the defendants interfered with the exercise of his rights under the FMLA after he provided notice of his need to use FMLA leave to obtain medical care and that the defendants used the fact that he took FMLA leave to suspend and then discharge him. Defendants claim that these counts should be dismissed because Austin failed to exhaust the requisite administrative remedies. Defendants argue that, because claims involving retaliation under FMLA are often treated similarly to claims involving retaliation under Title VII of the Civil Rights Act of 1964, the exhaustion of administrative remedies requirement that applies to a plaintiff asserting Title VII claims should also apply to a plaintiff asserting claims under the FMLA. See Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). However, this argument is not supported by law. The FMLA states that an action "may be maintained against any employer...in any Federal or State court of competent jurisdiction..." and does not provide for the exhaustion of administrative remedies. 29 U.S.C. § 2617(a)(2). Therefore, we reject defendants' contention that Austin's FMLA counts should be dismissed based on Austin's failure to exhaust administrative remedies.

Accordingly, because Austin has properly alleged claims of FMLA violations against Cook County, defendants' motion to dismiss with respect to Counts I and ...


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