The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge
REPORT AND RECOMMENDATION
In December 2009, Plaintiff Thomas Fitts filed a Complaint (#1) against Defendants Village of Grant Park, Fred "J.R." Meyer, and Timothy Swanson. In March 2010, Plaintiff filed an Amended Complaint (#14) alleging discrimination against Plaintiff based on his political affiliation in violation of the First Amendment of the United States Constitution. Additionally, Plaintiff alleges state law claims of breach of oral contract and unjust enrichment. Federal jurisdiction is based on 28 U.S.C. § 1331 because Plaintiff alleges a constitutional violation. The Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
In April 2010, Defendants filed a Motion To Dismiss Amended Complaint (#18). In May 2010, Plaintiff filed a Response to Defendants' Motion To Dismiss Amended Complaint (#20), and a Memorandum of Law In Opposition to Motion To Dismiss Amended Complaint (#21). After reviewing the parties' memoranda, this Court recommends, pursuant to its authority under 28 U.S.C. § 636(b)(1)(B), that Defendants' Motion To Dismiss Amended Complaint (#18) be DENIED.
The following background is taken from Plaintiff's amended complaint: Defendant Village of Grant Park (hereinafter "Village") is a municipality incorporated under the laws of the State of Illinois. Defendant Fred "J.R." Meyer is the Village mayor. Defendant Timothy Swanson is chief of police for the Village. Plaintiff began working for the Village as a full-time police officer in June 1996. By January 2002, Plaintiff had risen to the rank of lieutenant and in June 2008, he was appointed interim chief of police; a position he held until May 2009. He received no pay increase for his new duties or responsibilities. In January 2009 and February 2009, Robert Schurman, who was mayor at that time, and Warren Wessman, a Village trustee, advised Plaintiff that he would receive $5,000 for his services as interim police chief. In May 2009, Plaintiff stepped down as interim chief of police. In the same month, Defendant Meyer was sworn in as mayor.
In September 2009, Plaintiff called in sick in compliance with sick leave protocol. He was subsequently removed from the work schedule. In that same month, Defendants Meyer and Swanson demoted Plaintiff from lieutenant to patrolman and decreased his pay from $18.84 per hour to $12.50 per hour. In October 2009, Plaintiff returned to work for the police department with reduced hours. Plaintiff alleges that he was demoted because he supported Meyer's political opponent, Robert Schurman, in the 2009 mayoral race. Plaintiff had ties with Schurman that included appearing at political events, attending golf outings, and personally driving Schurman to City Hall on election night to view the results. He also provided financial support for Schurman's campaign.
In compliance with Village practice, in April 2009, Plaintiff demanded compensation for 45 unused sick days. In June 2009, Plaintiff made the same demand to interim police chief Ken McCabe. Two months later, Plaintiff made again demanded compensation, this time to Defendant Timothy Swanson, the police chief. Plaintiff has never received compensation for his service as interim police chief or for the 45 unused sick days.
In Count I, which appears to be against all Defendants, Plaintiff alleges that Defendants discriminated against him based on political affiliation in violation of the First Amendment when they demoted him from lieutenant to patrol officer. In Count II against Defendant Village, Plaintiff alleges breach of oral contract for failure to compensate him for 45 unused sick days and for his services as interim chief of police. In Count III, Plaintiff alleges unjust enrichment against the Village because the Village benefitted from Plaintiff's work as interim chief of police from June 2008 to May 2009.
The purpose of a motion to dismiss for failure to state a claim is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To state a claim under federal notice pleading standards, a complaint must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The complaint must give fair notice of what the claim is and the grounds upon which it rests. EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007). However, fair notice is not enough by itself; in addition, the allegations must show that it is plausible, rather than merely speculative, that the plaintiff is entitled to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).
The Seventh Circuit court recently summarized the notice pleading analysis in Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). First, a plaintiff must provide notice to defendants of the claims. Second, courts must accept a plaintiff's factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff's claim. Third, in considering a plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements. Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949-50 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When considering a motion to dismiss for failure to state a claim, the Court is limited to the allegations contained in the pleadings. Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). The Court must treat all well-pleaded factual 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); see Bell Atl., 550 U.S. at 556 (requiring plausible grounds for inferences if those inferences are to sustain a complaint). A claim is sufficient only to the extent that it contains either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. Bell Atl., 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). Legal conclusions, unsupported by allegations of underlying facts, are not entitled to "the assumption of the truth." Id. at 1950. Finally, a plaintiff can allege himself out of a claim by including allegations that establish his inability to state a claim. Head v. Chi. Sch. Reform Bd. of Trs., 225 F.3d 794, 801-02 (7th Cir. 2000); Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999).
Application of the notice pleading standard is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009). "In other words, the height of the pleading requirement is relative to circumstances." Id.; Concentra, 496 F.3d at 782 ...