The opinion of the court was delivered by: Judge Blanche M. Manning
The plaintiff sued Calumet City in state court alleging various claims relating to her termination for violating the Calumet City residency requirement. In her first amended complaint, she alleges claims for indemnification (Count I), wrongful termination based on her complaints of discrimination and union activity (Count II), under § 1983 based on her allegations that the residency requirement is applied in a discriminatory manner and that she was denied due process prior to her termination (Counts III and IV) and a declaratory judgment on the constitutionality of the residency requirement (Count V). Both Calumet City [64-1] and the individual defendants [68-1] move to dismiss all of her claims. For the reasons stated below, the City's motion to dismiss the retaliatory discharge claim is granted. The City's motion to dismiss the remaining claims and the individual defendants' motion to dismiss are denied. In addition, the court construes the plaintiff's statement that she wishes to dismiss the retaliatory discharge claim against the individual defendants as a motion for leave to do so, and grants the motion.
The following well-pled facts are accepted as true for purposes of this motion to dismiss. Edward Gilmore is the chief of police of Calumet City, Michelle Qualkinbush is the mayor of Calumet City and George Vallis is the director of human resources for Calumet City. Plaintiff Reiff was a clerk for the Calumet City Police Department for seven years prior to her purported wrongful termination in October 2009. In 2007, she became active in her union Teamsters Local 726. Through 2007 and 2009, Reiff believed that the local was ineffective and began recruiting members in an attempt to take a firm position on negotiations with their employer, Calumet City, with respect to the collective bargaining agreement and replacement of Local 726.
According to the amended complaint, the defendants became aware of Reiff's opposition and union organizing activity and began to retaliate against her by subjecting her to harassment, verbal abuse and mistreatment. Although Reiff complained to her superiors about the abuse and retaliation, they did nothing to address her concerns.
In addition, Calumet City has an ordinance that requires all officers and employees of the city to be residents of the City of Calumet, with certain specified exceptions. The Calumet City municipal code further states that any person in violation of the residency requirement shall be subject to suspension or termination. Reiff alleges that the only Calumet City employees who have been terminated based on the residency requirements are the female clerks of the Calumet City police department. Moreover, Reiff alleges that the defendants have selectively applied the residency provision to punish and retaliate against those who speak out against Calumet City policies and practices.
Reiff alleges that based on her union organizing activity and opposition to certain Calumet City policies, she was falsely accused by the defendants of violating the residency requirement. She also alleges that she was prevented from asserting a defense to the residency allegations against her at a hearing on the issue, and was thereafter terminated on October 13, 2009.
Standard on Motion to Dismiss
A complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Seventh Circuit explained that this "[r]ule 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) (internal quotations omitted); see also McCormick v. City of Chicago, 230 F.3d 319, 322--24 (7th Cir. 2000) (stating that claims under 42 U.S.C. § 1983 are not subject to a heightened pleading standard, but are only required to set forth sufficient allegations to place the court and the defendants on notice of the gravamen of the complaint).
However, a complaint must contain "enough facts to state a claim to relief that is plausible on its face" and also must state sufficient facts to raise a plaintiff's right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). In Ashcroft v. Iqbal, the Supreme Court stated that 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." Ashcroft v. Iqbal, 556 U.S. --------, --------, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
The court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992). Nevertheless, "in examining the facts and matching them up with the stated legal claims, we give 'the plaintiff the benefit of imagination, so long as the hypotheses are consistent with the complaint.'" Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009).
A. § 1983 Equal Protection Claim (Count III)
"[A] municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). "In order to state a § 1983 claim against a municipality, the complaint must allege that an official policy or custom not only caused the constitutional violation, but was 'the moving force' behind it." Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 514-15 (7th Cir. 2007) (citations omitted). To establish municipal liability under § 1983, a plaintiff must show that the violation of her constitutional rights was the result of (1) an express policy, (2) a widespread practice, or (3) the conduct of a person with final policymaking authority. Id. at 694.
The City contends that the plaintiff has failed to allege any facts in support of her conclusory allegations that the City's actions reflect a "policy, custom or pattern of official conduct of engaging and condoning discrimination against women." Specifically, the City argues that the plaintiff has only pointed to her one termination as a basis for her Monell claim, contrary to Seventh Circuit precedent that "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident also includes proof that it was caused by an existing, unconstitutional municipal policy." Sivard v. Pulaski County, 17 F.3d 185, 188 (7th Cir. 1994).
In response to this argument, the plaintiff points to her allegations that she "as well as other female employees, have been terminated based on the residency ordinance where male employees also subject to the ordinance were not." FAC at ¶ 26. She further alleges that "Defendants . . . intentionally subjected Plaintiff and other female employees to unequal and discriminatory treatment by applying a residency ordinance only on female employees . . . ." Id. at ¶ 55. Further, the plaintiff alleges that "[t]he Defendants, policymakers all, directly and personally performed or acquiesced in acts they each had specific knowledge were illegal and with reckless disregard for the rights of the Plaintiff." Id. at ¶43. Finally, the plaintiff alleges that the "Defendants' actions reflect a policy, custom, or pattern of official conduct of engaging in and condoning discrimination against women" and that the individual defendants are all final policymakers "in that they all, individually and collectively, determine who is and will be subject to the enforcement of City ordinances." Id. at ¶¶ 57, 59. These allegations sufficiently state a Monell claim under the Equal Protection Clause.
"To state a prima facie claim under the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must demonstrate that (1) he is otherwise similarly situated to members of the unprotected class; (2) he was treated differently from members of the unprotected class; and (3) the defendant acted ...