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Patrick Mcqueen, Gail Russell, Michelle Shumaker, and Sharon Dancy v. City of Chicago

March 23, 2011

PATRICK MCQUEEN, GAIL RUSSELL, MICHELLE SHUMAKER, AND SHARON DANCY, PLAINTIFFS,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, JAMES A. MAURER, JOSEPH O'CONNER,
BILL LONERGRAN, MICHAEL FITZGERALD, RAYMOND JUBERA, AND LOUIS MILLS, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiffs Patrick McQueen, Gail Russell, Michelle Shumaker, and Sharon Dancy, aviation police officers employed by the City of Chicago's Department of Aviation ("DOA"), brought suit against several current and former DOA supervisors and the City of Chicago. Plaintiffs' second amended complaint (Doc. 71) alleges the denial of equal employment opportunities under 42 U.S.C. § 1981; violations of their Fourteenth Amendment rights to equal protection and due process; and violations of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. §12111 et seq. ("ADA"), the Illinois Human Rights Act, 775 ILCS 5/1 et seq. ("IHRA"), and the Illinois Civil Rights Act, 740 ILCS 23/1 et seq. ("ICRA"). The individual Defendants are James Maurer, former Managing Deputy Commissioner of Security and Public Safety for the DOA; Joseph O'Conner and Bill Lonergran, both Assistants to the Deputy Commissioner for Security and Public Safety; and Michael Fitzgerald, Raymond Jubera, and Louis Mills, all Lieutenants with the DOA. All Defendants have moved under Rule 12(b)(6) for partial dismissal of the second amended complaint. Defendant Maurer's motion (Doc. 111), which is directed only against Counts I-V, is denied. The motion filed by the remaining Defendants (Doc. 96) is granted in part and denied in part.

Background

The facts alleged in a complaint are assumed true on a Rule 12(b)(6) motion. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). According to the second amended complaint, the DOA is a "lawless" organization that allows non-African-American aviation police officers to breach airport security, to show up to work drunk, and to run personal errands while on duty. By contrast, Plaintiffs, who are African-American, have been disciplined for a series of fabricated or protected activities, assigned to undesirable job assignments, subjected to petty harassment, and denied promotional opportunities. To summarize:

Plaintiff Dancy alleges race and sex discrimination. She was suspended for five days in retaliation for filing discrimination and retaliation charges with the Illinois Department of Human Rights ("IDHR") in December 2007; was reprimanded for apprehending a City of Chicago employee who was stealing luggage from O'Hare Airport; was passed over for promotion and denied training opportunities for discriminatory and retaliatory reasons; and was reassigned from a permanent post to a less desirable assignment because of her race and because she had filed a second charge of discrimination with the IDHR.

Plaintiff Russell, too, alleges race and sex discrimination. She was denied lunch breaks, was suspended for three days for being disrespectful to her supervisors, and was banned from using DOA vehicles. In addition, after she refused to write a memorandum to Fitzgerald explaining why she and a non-African-American employee had lunch together, Maurer "angrily exclaimed that if [the memorandum] was not provided, 'I'm gonna come after them-I'm gonna show them what harassment and retaliation is.'" Doc. 71, ¶ 101. When given favorable job assignments, Russell was harassed and required to respond to every security incident. On October 2, 2009, for example, Russell radioed for assistance but an African-American Sergeant refused to send officers to her aid.

Plaintiff McQueen alleges race and disability discrimination. McQueen, who suffers from a respiratory condition and who has been approved for intermittent FMLA leave since 2007, was disciplined for taking FMLA leave in August 2008 and February 2009, and was penalized in April 2009 for leaving work after the airport's air quality began to affect his health. A July 2008 request to accommodate McQueen was not granted until November 2009, and only occasionally complied with thereafter. When McQueen again requested accommodations in 2009, Mills told him that he would never be assigned to job assignments with better air quality; Fitzgerald had told him that "the FMLA doesn't apply" to the DOA. Id. ¶ 156. In March 2010, Defendants initiated disciplinary proceedings against McQueen for "loafing" and "incompetence" after he failed to respond to DOA radio calls. McQueen failed to respond to the calls because he was in a "radio dead zone," and McQueen alleges that the disciplinary proceedings were instituted because of his race.

Plaintiff Shumaker alleges race, sex, and disability discrimination. Defendants failed to investigate an incident in which Shumaker was subjected to racial epithets by a non-DOA employee. Maurer and Fitzgerald did not allow Shumaker to return to work between November 2007 and January 2008 because she had taken FMLA leave. On November 13, 2008, Shumaker was suspended by her supervisor-who was acting at the direction of Maurer and Fitzgerald-for leaving her work area. Shumaker actually was not outside the perimeter and, even if she were, non-African Americans were allowed to engage in similar actions without penalty; in fact, Shumaker was retaliated against for reporting non-African Americans who left their patrol areas.

Fitzgerald subsequently banned Shumaker from using DOA vehicles until she "admit[ted] guilt" for her transgressions. Doc. 71, ¶ 98. Shumaker then was denied transportation to her security assignment by DOA employees acting at Fitzgerald's direction. When Shumaker complained to Jubera, he refused to let her file a report with the DOA's Human Resources department. On January 5, 2009, Shumaker reported these incidents to Maurer, attributing them to sex discrimination. On January 15, 2009, Shumaker was accused of permitting a breach of airport security. The accusation, which resulted in disciplinary proceedings that later were dropped, was false and may have been a result of her complaints to Maurer. Although the accusation's sole basis was video surveillance, Shumaker never was permitted to view the videos in order to contest the charges.

The non-disclosure of the video came on the heels of other efforts to conceal and alter evidence of discrimination. On May 1, 2008, Fitzgerald ordered that all personnel records be concealed and withheld from employees who filed charges against the DOA. In an email to DOA supervisors, Fitzgerald stated that "if an officer requests this information he/she is to be told they need a subpoena or a formal request from their Union. I have gone to several EEOC complaints and the officers are producing these items and they are working against the department." Doc. 71, ¶ 72. To this end, on March 16, 2009, Maurer and the other Defendants interfered with an investigation of the DOA conducted by the City's Inspector General. Maurer did so by issuing a memorandum that required all employees to speak with their supervisors if contacted by the Inspector General's office. Supervisors then were required to notify O'Connor or Lonergran about the contacts.

Together, Plaintiffs allege that "[t]he Administrative Lieutenant and Defendants Maurer, Lonergran, or O'Connor were or are involved in the decision-making process for every disciplinary action against an Aviation Police Officer." Doc. 71, ¶ 36. To avoid the appearance of discrimination, those Defendants forced African-American supervisors to sign Plaintiffs' disciplinary paperwork. In addition, the DOA denied Plaintiffs promotional opportunities while promoting non-African Americans, in part because of personal relationships and in part because of a desire to give non-African Americans higher compensation. The City's practice of not promoting employees with a recent history of discipline, finally, allegedly deprived African Americans of the ability to advance.

Plaintiffs filed this action on April 2, 2009. An amended complaint was filed on August 3, 2009, and a second amended complaint, the subject of the present motions, was filed on April 27, 2010. It advances twenty-six counts: (1) race discrimination by all Defendants against all Plaintiffs in violation of § 1981; (2) retaliation by all Defendants against all Plaintiffs in violation of § 1981; (3) interference by the City, Maurer, and Fitzgerald of McQueen's and Shumaker's FMLA rights; (4) retaliation by the City, Maurer, and Fitzgerald against McQueen and Shumaker in violation of the FMLA; (5) deprivation by all Defendants of all Plaintiffs' rights under the equal protection and/or due process clause of the Fourteenth Amendment and/or § 1981; (6) discrimination by the City against Dancy in violation of Title VII; (7) retaliation by the City against Dancy in violation of Title VII; (8) discrimination by the City against Dancy in violation of the IHRA; (9) retaliation by the City against Dancy in violation of the IHRA; (10) discrimination by the City against McQueen in violation of Title VII; (11) retaliation by the City against McQueen in violation of Title VII; (12) discrimination against and failure to accommodate McQueen by the City in violation of the ADA; (13) retaliation by the City against McQueen in violation of the ADA; (14) discrimination by the City against McQueen in violation of the IHRA; (15) discrimination against and failure to accommodate McQueen by the City in violation of the IHRA; (16) retaliation by the City against McQueen in violation of the IHRA; (17) unintentional discrimination (disparate impact) by the City against all Plaintiffs in violation of Title VII; (18) unintentional discrimination (disparate impact) by the City against all Plaintiffs in violation of the IHRA; (19) discrimination by the City against Shumaker in violation of Title VII; (20) retaliation by the City against Shumaker in violation of Title VII; (21) discrimination by the City against Shumaker in violation of the IHRA; (22) retaliation by the City against Shumaker in violation of the IHRA; (23) discrimination by the City against Russell in violation of Title VII; (24) discrimination by the City against Russell in violation of the IHRA; (25) discrimination by the City against all Plaintiffs in violation of the ICRA; and (26) a claim under the Illinois Tort Immunity Act, 745 ILCS 10/9-102, requiring the City to indemnify the individual Defendants for any liability they incur.

Plaintiffs seek a declaratory judgment that Defendants violated § 1981, the FMLA, Title VII, the IHRA, the ICRA, and the equal protection and due process clauses. They also seek injunctive relief to expunge all unwarranted discipline from their records, to obtain full seniority and benefits, to institute training programs for all DOA managers, to forbid future violations of the law, to require Defendants to adopt policies for effective reporting and investigation of discrimination, and to require the City of Chicago to indemnify all individual Defendants. Finally, Plaintiffs seek past and future wages, compensatory damages, liquidated damages, punitive damages, costs, and attorney fees.

Discussion

Defendants move to dismiss all counts, in whole or in part, with the exception of Counts XII, XIII, and XXVI. To survive a Rule 12(b)(6) motion, a complaint must overcome "two easy-to-clear hurdles": (1) "the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which it rests"; and (2) "its allegations must plausibly suggest that the plaintiff has the right to relief, raising that possibility above a speculative level." Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (citation and internal quotation marks omitted). Where the well-pleaded facts "do not permit the court to infer more than the mere possibility of ...


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