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Mary Anne Grayer v. Mayor Dwight Welch

September 30, 2011

MARY ANNE GRAYER, PLAINTIFF,
v.
MAYOR DWIGHT WELCH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR AND PUBLIC SAFETY DIRECTOR OF THE CITY OF COUNTRY CLUB HILLS, HENRIETTA TURNER, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CITY MANAGER, DEBORAH MCILVAIN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CITY CLERK, WILLIAM A. BROWN, INDIVIDUALLY AND IN HIS (FORMER) CAPACITY AS POLICE CHIEF, THERESE O'DONNELL, INDIVIDUALLY AND IN HER (FORMER) OFFICIAL CAPACITY AS DEPUTY POLICE CHIEF, GREGORY A. SMITH, INDIVIDUALLY AND IN HIS FORMER CAPACITY AS SERGEANT, THE COUNTRY CLUB HILLS POLICE DEPARTMENT, THE CITY OF COUNTRY CLUB HILLS, A MUNICIPAL CORPORATION, OTHER UNKNOWN CITY OFFICIALS, EMPLOYEES, AGENTS OR INDEPENDENT CONTRACTORS THEREOF, MEREDITH PATE, IN HER OFFICIAL CAPACITY AS AN AGENT OF THE INTERGOVERNMENTAL RISK MANAGEMENT AGENCY, CITY OF COUNTRY CLUB HILLS AND ITS OFFICIALS AND EMPLOYEES. DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Mary Anne Grayer had a successful career in law enforcement until she went to work as a police lieutenant for the Village of Country Club Hills. She was terminated from that position in June 2007 and filed this lawsuit two years later, alleging a host of federal and state claims. Proceeding pro se, Grayer has named as Defendants the City of Country Club Hills Police Department; the City of Country Club Hills; Mayor and Public Safety Director Dwight Welch, City Manager Henrietta Turner, City Clerk Deborah McIlvain, former Police Chief William A. Brown, former Deputy Chief Therese O'Donnell, and former Sergeant Gregory A. Smith (all officers of the City of Country Club Hills) in their individual and official capacities; and Meredith Pate and the Intergovernmental Risk Management Agency ("IRMA"). In her initial complaint, Plaintiff alleged she was harassed by the Country Club Hills Defendants and ultimately terminated from her position as police lieutenant in violation of her First, Fourth, Fifth, and Fourteenth Amendment rights. Against IRMA and attorney Meredith Pate, who were involved in litigation against the Village, Plaintiff leveled a number of claims, including a claim of extortion. Defendants moved to dismiss, and the court granted that motion but gave Plaintiff leave to file an amended complaint. See Grayer v. Welch, No. 09 C 3924, 2010 WL 3713689 (N.D. Ill. Sept. 14, 2010).

In her most recent complaint, a third amended complaint filed on December 13, 2010, Plaintiff has again named the Defendants identified above, as well as "other unknown city officials, employees, or agents thereof" and "unknown private business entities, and their employees, agents or independent contractors." (Pl.'s Third Am. Compl. (hereinafter "Compl."), at 1.) In addition to the Constitutional claims she alleged originally, Plaintiff's third amended complaint introduces a number of employment law claims and states additional claims against Pate and IRMA.

Defendants have again moved to dismiss. For the reasons explained here, Defendant Pate and Irma's motions are granted. The remaining Defendants' motion to dismiss is granted in part and denied in part.

FACTUAL BACKGROUND

The facts alleged in Plaintiff's third amended complaint are deemed true for the purposes of these motions.*fn1 Plaintiff, a black female, had a twenty-plus year career as a sergeant with the City of Chicago Police Department. (Compl. ¶ 5.) On October 18, 2004, Plaintiff began working for the City of Country Club Hills Police Department as a Police Lieutenant, after being interviewed by the City's Police and Fire Commission. (Compl. ¶ 4.) Plaintiff was initially assigned to the Communications and Records Division and became Investigations Lieutenant in June 2005. (Compl. ¶ 7.) In her first year on the job, Plaintiff was assigned a number of major projects-which required frequent, unpaid overtime work-and two major internal investigations, including the investigation of a newly promoted detective who also worked as the Mayor's bodyguard. (Compl. ¶ 8.) Plaintiff claims the bodyguard "was subsequently found" (she does not say by whom) "to have falsified substantive information" in two narcotics investigations, and was terminated in August 2005. (Id. ¶ 9.) Plaintiff claims this bodyguard "would later allege" (she does not say when or how) that his supervisor, Sergeant Gregory Smith ("Sgt. Smith"), had directed him to write the false report. (Compl. ¶ 9.)

In early 2006, Plaintiff "began to experience problems" with Sgt. Smith. (Compl. ¶ 10.) The only "problems" she identifies are an allegation that Smith "had exceeded his authority on several occasions and had also been found" (again she does not say when, or by whom) "to have submitted some false or misleading reports." (Compl. ¶ 10.) Plaintiff claims she notified then-Police Chief Brown and Deputy Police Chief O'Donnell about her problems with Sgt. Smith, but they took no action to address the issue. (Id.)

By Spring 2006, Plaintiff alleges, Sergeant Smith began to develop a "close relationship" with Defendant Welch, purportedly helping Welch, a former police sergeant, to "fulfill requirements to carry a weapon and become a conservator of the peace." (Compl. ¶ 11.) Smith also developed a relationship with Defendant Turner and began "doing things without going through the chain of command." (Compl. ¶ 12.) Plaintiff alleges that Smith and other police personnel who had close relationships with Mayor Welch, City Manager Turner, and City Clerk Deborah McIlvain, were treated more favorably than others with respect to "assignments and/or other matters." (Id.)

In August 2006, Defendants Brown and O'Donnell allegedly began to harass Plaintiff; she offers no specifics concerning this harassment other than being excluded from staff meetings and from "business-related social events." (Compl. ¶ 15.) On September 6, 2006, Plaintiff alleges, when she met with Defendant Smith to tell him about his "inappropriate handling of a criminal case," Smith "went into a tirade," while standing at her office door, blocking access in a threatening and intimidating manner. (Compl. ¶ 16.) Plaintiff had requested that Defendant Brown or Defendant O'Donnell participate in the meeting with Smith, but both had declined. O'Donnell did witness a portion of this "tirade," however, and Brown overheard the interaction-but neither intervened. (Compl. ¶ 17.)

During the Fall of 2006, Plaintiff met with an attorney and also contacted the Equal Employment Opportunity Commission ("EEOC") regarding the harassment she alleges she suffered. On October 27, 2006, just one day after meeting with an attorney whom she later learned was "well known" to Defendants Brown and O'Donnell, Plaintiff was reassigned to a position as Administrative Lieutenant-a position that had no "ongoing supervisory responsibilities." (Compl. ¶¶ 18, 19.)

In March 2007, Plaintiff was summoned to Chief Brown's office and met with Brown and Attorney Russell Hartigan, who had been assigned by the Intergovernmental Risk Management Association ("IRMA")*fn2 to defend a lawsuit filed by a former police detective, Edward Anderson. (Compl. ¶ 20.) Plaintiff was asked to assist in the discovery process. (Compl. ¶ 20.) Plaintiff alleges that sometime between March 12 and May 6, 2007, she became aware (she does not say how) that Defendants Brown and Smith had made false statements in connection with the Anderson case. Plaintiff brought the matter to the attention of Attorney Hardigan. She also requested and obtained independent counsel through Defendant IRMA, Attorney Laura Scarry (Compl. ¶¶ 21-23.)

On May 24, 2007, Plaintiff learned from other employees of the Department that her termination was imminent. (Compl. ¶ 24.) She proceeded to take elective time off and was away from work beginning on May 25 and returning on May 28. (Compl. ¶¶ 25-26.) The day after her return, on May 29, Plaintiff was summoned to a meeting with Defendants Brown and O'Donnell. Brown confronted Plaintiff "in a very threatening and hostile manner" about her decision to seek legal counsel in the Anderson lawsuit. (Compl. ¶ 26.) Plaintiff told him she had done so because of Brown's own false statements. Brown demanded that Plaintiff prepare a report concerning the matter and then "threw the door open and ordered [Plaintiff] from his office." (Compl. ¶ 26.) The following day, Plaintiff prepared the report and left it with Brown. She also faxed copies to Mayor Welch, to City Manager Turner, and to several attorneys. (Compl. ¶ 27.) Plaintiff gave her deposition in the Anderson lawsuit on May 31. (Compl. ¶¶ 28, 29.) In June 2007, while allegedly dealing with continued workplace harassment, Plaintiff requested a meeting with Defendants Welch and Turner, a request she characterizes as a "complaint to them regarding the inappropriate/illegal conduct of Chief Brown." (Compl. ¶ 29.) Plaintiff asserts that Welch and Turner's "failure to act" in response was a violation of the law. (Id.)

In June 2007, Plaintiff claims she made several attempts to obtain copies of various city ordinances, "specifically those pertaining to the Police Department and Personnel regulations," from the City Clerk, Defendant McIlvain. (Compl. ¶ 30.) McIlvain failed to provide the updated ordinances, so Plaintiff notified Turner and Welch, who also failed to provide these ordinances. (Compl. ¶ 30.) On June 22, 2007, Defendant Brown allegedly reprimanded Plaintiff for having requested ordinances from McIlvain without consulting him first. (Compl. ¶ 31.) Later that day, Plaintiff filed a complaint with the EEOC and the Illinois Attorney General's Office. (Compl. ¶ 32.)

Finally, on June 26, 2007, Plaintiff met with Defendant Welch for what she believed was an interview regarding her eligibility for promotion. (Compl. ¶ 33.) At the meeting, Welch announced that as a result of an ordinance adopted the previous day-which gave Mayor Welch "complete control" over the appointment of police lieutenants-all at-will employee-lieutenants were required to resign. (Compl. ¶¶ 34-35.) Welch allegedly announced that, "if Plaintiff did not submit a resignation he was going to 'let her go.' " (Compl. ¶ 35.) Plaintiff alleges that, until this amendment was adopted by the City Council on June 25, 2007, police lieutenants had served "at the pleasure of the Police Chief," but were removed only for cause and were entitled to a hearing before the Mayor and City Council on request. (Compl. ¶ 34.)

On June 28, 2007, Plaintiff informed Defendant Brown that she refused to resign and that she had filed an EEOC complaint. (Compl. ¶ 37.) Later that same day, Plaintiff received a letter from Defendant Welch terminating her employment with the Department, effective immediately. (Compl. ¶ 39.) Plaintiff, then age 56, was the second oldest employee of the Police Department (Complaint at 22.) Defendant O'Donnell escorted Plaintiff to her office to pack up her belongings beginning at 3:30 p.m. (Compl. ¶ 39.) At 5:00, O'Donnell directed Plaintiff to return the following day to finish packing , but when she showed up the next morning, Brown "stormed in" to the office, "loudly ordered" her to leave, and announced that he wanted to "'go through it'" and would pack her belongings himself. (Compl. ¶ 40.) Brown acknowledged that the computer had been removed from Plaintiff's office and reminded her that it belonged to the department. (Compl. ¶ 40.) Plaintiff claims she was not permitted to return to finish packing the belongings in her office until July 2, 2007, and that, when she returned to do so, she found her items were "unsecured." (Compl. ¶ 41.)

DISCUSSION

Defendants have moved to dismiss Plaintiff's complaint, pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted. In order to survive such a motion, a plaintiff's complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). In ruling on a 12(b)(6) motion, the court treats all well-pleaded allegations as true, and draws all reasonable inferences in plaintiff's favor. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009). In considering a 12(b)(6) motion, the issue is adequacy of the complaint, not whether it is meritorious; and thus, while detailed factual allegations are not required, a plaintiff has an obligation to provide "enough facts to state a claim to relief that is plausible on its face" and that "raise[s] a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 555 (2007); Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009). And it is possible for Plaintiff to "plead herself out of court" by pleading facts that show that he has no legal claim. Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) (collecting cases). In "deciding whether the complaint has enough substance to warrant putting the defendant to the expense of discovery," this court must consider whether "some of plaintiff's factual allegations are unrealistic or nonsensical," whether "some contradict others," or whether "some are 'speculative' in the sense of implausible and ungrounded." Id.

In her original complaint, filed under 42 U.S.C. ยง 1983, Plaintiff alleged that Defendants conspired to violate her rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, interfered with her right to free speech under the First Amendment, and violated the Fourth and Fifth Amendments by temporarily denying her access to her office upon her termination. In her third amended complaint, Plaintiff again alleges her Constitutional claims, but also asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), and the Age Discrimination in Employment Act ("ADEA"). In her original complaint, Plaintiff also asserted various state law claims, including charges of extortion against Defendants IRMA, the Village insurer, and Attorney Meredith Pate. In her third amended complaint, Plaintiff reasserts her ...


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