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Susan A. Kuttner v. Sheriff John E. Zaruba (In His ) Individual and Official Capacity

February 22, 2011


The opinion of the court was delivered by: Judge Edmond E. Chang


Plaintiff Susan Kuttner alleges that the DuPage County Sheriff's Office, Sheriff John E. Zaruba (individually and in his official capacity), and DuPage County (collectively "Defendants" or "the Sheriff," unless context dictates otherwise) discriminated and retaliated against her on the basis of her gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.*fn1 Plaintiff also claims that Defendants violated the Employee Retirement Income Security Act (ERISA) by refusing to pay her for sick-day benefits and child-adoption benefits owed to her under the Sheriff's welfare benefits plans. Defendants have moved to dismiss (R. 10) both the Title VII claim and the ERISA claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court denies in part and grants in part the motion to dismiss: the Title VII claim survives (for now), but the ERISA claim is dismissed.


At this stage of the litigation, we accept Plaintiff's allegations as true and draw reasonable inferences in Plaintiff's favor. Susan Kuttner was a deputy sheriff for the DuPage County Sheriff Department from 1998 to February 2010, when she was fired.

R. 1, Compl. ¶ 15.*fn2 Despite accumulating a "relatively unblemished disciplinary record" during her 12-year tenure as a deputy, all was not well. Id. ¶ 17. Over the course of two years, from around June 2006 to March 2008, Kuttner wrote at least five letters to her superiors, complaining about the disparate treatment between male and female deputies in work assignments, the safety of work conditions, and other aspects of employment. Id. ¶¶20-30.

The complaint acknowledges that, in October 2009, the Sheriff brought disciplinary charges against Kuttner before an administrative agency, the DuPage County Sheriff's Merit Commission. R. 1 ¶¶ 34-38. The Sheriff contended that Kuttner had violated two employment regulations: "Wearing of the Uniform" at an improper location, as well as the related violation of "Conduct Unbecoming" a deputy sheriff. Id. ¶ 39.*fn3 The Merit Commission did find Kuttner guilty of the administrative charges, and terminated her employment. Id. ¶ 39. Kuttner alleges, however, that similarly situated male deputies were not terminated for similar regulatory violations, and indeed some similarly situated male deputies were not even brought up on charges before the Merit Commission, let alone disciplined. Id. ¶ 42. The complaint purports to list the names and to describe the circumstances surrounding the male deputies who were not terminated for similar, or similarly serious, violations. Id. ¶ 42(a)-(o).


Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This short and plain statement must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). The Seventh Circuit has explained that the rule "reflects a liberal notice pleading regime, which is intended to 'focus litigation on the merits of a claim' rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). "[W]hen ruling on a Kuttner wore at least part of her official Sheriff's uniform during the visit. Id. The debtor was not home, but the debtor's father answered the door. Id. Kuttner gave the father a business card that displayed the name "Susan A. McKinley." Id. defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007); McGowan v. Hulick, 612 F.3d 636 (7th Cir. 2010) (courts accept factual allegations as true and draw all reasonable inferences in plaintiff's favor). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. -, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). These allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. And the allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 129 S. Ct. at 1950.



Defendants first challenge the Title VII gender-discrimination claim, arguing primarily that Kuttner stipulated, before the Merit Commission, to violating the "Conduct Unbecoming" and "Wearing of the Uniform" employment regulations, thereby undermining -- both factually and legally -- the allegation of gender discrimination R. 10 at 5-8. To support these arguments, Defendants attach various exhibits to their motion to dismiss, including a stipulation entered into by Kuttner before the Merit Commission. R. 10, Exhs. 1-3. But even if the exhibits could be considered in addition to, and beyond, Plaintiff's complaint, Defendants' arguments do not warrant dismissal of the Title VII claim.

With regard to the factual argument, Plaintiff's stipulation that she, on one occasion, wore her uniform in an improper setting and committed conduct unbecoming of a deputy, does not fatally undermine her factual allegation that her firing was based on gender discrimination. The complaint purports to identify more than 15 similarly-situated male deputies and to describe alleged misconduct in which those deputies engaged -- and yet those deputies were not fired. R. 1 ¶ 42(a)-(o). Additionally, the complaint alleges that two other female deputies engaged in relatively minor employment misconduct (relative, that is, to alleged misconduct committed by male deputies) that resulted in the female deputies' firing. Id. ¶ 44. And beyond the alleged disparate treatment in disciplinary charges, the complaint further alleges other instances of gender discrimination in work assignments, the safety of work conditions, and other aspects of employment. Id. ¶¶ 20-30.*fn4 These allegations are more than enough to render plausible the claim of gender discrimination, despite Plaintiff's stipulation that she should not have worn her uniform on that one occasion.

This result is especially true in light of Swanson v. Citibank, 614 F.3d 400, 405-06 (7th Cir. 2010). Swanson explained that, although the Supreme Court's recent Rule 8 decisions -- Twombly, Iqbal, and the lesser-known Erickson v. Pardus, 551 U.S. 89 (2007) -- did discard the any "possibility" standard in favor of a "plausibility" pleading burden, the Supreme Court did reaffirm that "in many straightforward cases, it will not be any more difficult today of a plaintiff to meet that ...

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