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Opp v. Devine

May 15, 2009

CHRISTINE A. OPP, PLAINTIFF,
v.
RICHARD A. DEVINE, IN HIS INDIVIDUAL CAPACITY; ANITA ALVAREZ, IN HER OFFICIAL CAPACITY; ROBERT J. MILAN, IN HIS INDIVIDUAL CAPACITY; BERNARD J. MURRAY, IN HIS INDIVIDUAL CAPACITY; JOHN G. MURPHY, IN HIS INDIVIDUAL CAPACITY; THE OFFICE OF THE STATE'S ATTORNEY OF COOK COUNTY, AN AGENCY OF THE STATE OF ILLINOIS; THE COUNTY OF COOK, AN ILLINOIS MUNICIPAL CORPORATION, BODY POLITIC AND UNIT OF LOCAL GOVERNMENT; AND THE COOK COUNTY BOARD OF COMMISSIONERS IN THEIR OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff brought a three count complaint asserting violations of the consent decree entered in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D. Ill. 1979) (Count I), violations of the Age Discrimination in Employment Act, 29 U.S.C. § 626 ("ADEA") (Count II), and "punitive discharge" (Count III) against all defendants.*fn1 Defendants moved to dismiss the complaint*fn2 pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and moved for sanctions pursuant to Fed. R. Civ. P. 11. This opinion resolves both motions, as well as plaintiff's motion to amend her complaint.

I.

Plaintiff was an Assistant State's Attorney employed by defendant Office of the State's Attorney of Cook County ("OSA") from January of 1997 to February of 2007. At a meeting on February 16, 2007, when plaintiff was fifty-seven years old, defendants Murphy and Murray informed plaintiff that her employment was being terminated as a result of budget cuts mandated by defendant Cook County Board of Commissioners (the "Board"). Plaintiff claims that the proffered reason for her termination was pretextual. She does not dispute that OSA reduced its workforce as a result of countywide budget cuts. She alleges, however, that she was selected for termination over less qualified or equally qualified peers based on 1) her lack of a "political sponsor" with sufficient "clout" to have her name removed from the termination list; 2) her age; and 3) her refusal to go along with an alleged unlawful scheme proposed by defendant Cassidy in August of 2006.

Defendants argue that defendant Board is a non-suable entity, and that defendants Alvarez and OSA are immune from liability under the Eleventh Amendment for the Shakman and punitive discharge claims.*fn3 Defendants also argue that plaintiff's Shakman claim, which seeks a monetary award for asserted violations of the consent decree entered in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D. Ill. 1979), should be dismissed against all defendants because 1) individual defendants cannot be held liable for violations of the Shakman order, and 2) the Shakman order does not provide a legal basis for a damages claim. Defendants next argue that the ADEA claim must be dismissed against the individual defendants because individual supervisors who are not otherwise employers cannot be sued under ADEA. Finally, defendants argue that plaintiff's "punitive discharge" claim does not state a cause of action. Defendants seek sanctions on the grounds that plaintiff objectively lacked a reasonable basis for bringing any of these claims against the state agent defendants,*fn4 for bringing the Shakman and ADEA claims against the individual defendants, and for bringing the "fictional" claim of punitive discharge.

II. Defendant's Motion to Dismiss

A motion to dismiss tests the sufficiency of a complaint, not its merits. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). I must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). The plaintiff must, nevertheless, allege sufficient factual material to suggest plausibly that she is entitled to relief. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).

A. The Board as Defendant

Plaintiff concedes that defendant Board is a non-suable entity and joins defendants' motion to dismiss all claims against this defendant. The motion is granted.

B. Plaintiff's "Punitive Discharge" Claim

Plaintiff concedes that this count does not state a cause of action and joins defendants' motion to dismiss Count III in its entirety. This motion is also granted.

C. Plaintiff's Shakman Claim

Plaintiff alleges that "defendants' actions in terminating Plaintiff's employment," while less qualified or equally qualified employees with "political sponsorship" were not terminated, violates the consent decree issued in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D. Ill. 1979). The Shakman order enjoined certain government employers from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." Id. at 1358.*fn5

Defendants raise several arguments for the dismissal of plaintiff's Shakman claim. First, as to defendants OSA and Alvarez, defendants assert Eleventh Amendment immunity under Garcia v. City of Chicago, 24 F.3d ...


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