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Kevin O'gorman v. City of Chicago

January 27, 2012

KEVIN O'GORMAN PLAINTIFF,
v.
CITY OF CHICAGO, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Kevin O'Gorman filed this suit under 42 U.S.C. § 1983 against the City of Chicago, seeking compensatory and punitive damages for alleged violations of his right to due process under the Fourteenth Amendment.*fn1 The City has moved to dismiss the complaint. R. 13. For the reasons stated below, the motion is granted, but O'Gorman has 21 days in which to file an amended complaint if he can, in good faith, make sufficient allegations consistent with this opinion.

I.

At this stage of the litigation, we accept Plaintiff's allegations as true and draw reasonable inferences in Plaintiff's favor. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2079 (2011). O'Gorman worked for the City as the General Foreman of Trades. R. 1 ¶ 4. As part of his job, O'Gorman ordered building supplies from Arrow Lumber under multiple contracts between the City and Arrow from 2003 to 2005. Id. ¶¶ 14--16. In November 2004, the Inspector General's Office of the City began to investigate these orders after an Arrow employee reported that Arrow treated orders placed by O'Gorman differently from other orders. Id. ¶¶ 17--18. At the time, Alexander Vroustouris was the Inspector General and William Marback worked as a Deputy Inspector General. Id. ¶¶ 9--12.

On May 7, 2007, O'Gorman was arrested and charged with theft of City property. Id. ¶ 19. Two days later, he was placed on paid administrative leave. Id. On May 10, the City issued a press release announcing that O'Gorman had been charged with diverting "more than $50,000 in goods from a city lumber contractor for his own use from early 2003 to 2005, and then filed false paperwork in an attempt to cover up the theft." Id. ¶ 21. This information was published shortly thereafter in the Chicago Tribune and on the Inspector General's website. Id. ¶¶ 23--24.

A hearing on the charges was scheduled. Id. ¶ 24. But before the hearing was held, O'Gorman was allegedly told (by his union representative, Thomas Ryan) that Fran Bailey, the City's Human Resources Director, recommended that O'Gorman resign in order to protect various benefits that he could not receive if he were outright fired. Id. Ryan also stated that O'Gorman would be found guilty and fired even "if Jesus Christ himself showed up to testify" in his favor. Id. Around this time, Frank Scalise, Deputy Commissioner and O'Gorman's immediate supervisor, and Ron Huberman, President of the Chicago Transit Authority, both told O'Gorman that if he resigned, he would be reinstated as soon as he was acquitted of the criminal charges. Id. ¶¶ 25--26. O'Gorman resigned on August 24, 2007. Id. ¶ 27.

On January 19, 2010, the Cook County Criminal Court acquitted O'Gorman of all criminal charges. Id. ¶ 28. O'Gorman immediately requested reinstatement, which the City promptly denied. Id. ¶¶ 29--30. On April 10, 2010, the City reopened a civil case -- which had been stayed, pending the outcome of the criminal case -- against O'Gorman, under the Illinois Whistleblower Act and the Chicago False Claims Act. Id. ¶¶ 32--33. In February 2011, Anthony Pilas, O'Gorman's assistant, was fired following an employment hearing, during which the hearing officer made findings of fact that implied criminal activity by O'Gorman based on testimony from the Inspector General's Office. Id. ¶¶ 40--45.

O'Gorman alleges that, based partly on these findings of fact, the Inspector General published O'Gorman's name on a "do not hire" list of former City employees who were permanently ineligible for rehire. Id. ¶ 34. Those listed were chosen because they had engaged either in criminal acts or in acts of "moral turpitude." Id. ¶¶ 34, 36. The list was also publicized in a City press release, and the Chicago Tribune published an article about the list. Id. ¶¶ 34-35. The Better Government Association published the list of names on its website. Id. ¶ 38.

O'Gorman filed this lawsuit in April 2011. Id. He alleges that the City deprived him of his property and liberty interests in employment without due process, which violated his rights under the Fourteenth Amendment.*fn2 He alleges that City officials with final policymaking authority caused the deprivation and seeks redress under 42 U.S.C. § 1983. Id. at 10.The City filed a motion to dismiss, [R.13], which is now before this Court.

II.

Under Federal Rule of Civil Procedure 12(b)(6), a complaint 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 this rule "reflects a liberal notice pleading regime, which is intended to 'focus litigation on the merits of a claim' rather than on the 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 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, 637 (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.

III.

Section 1983 provides a cause of action against a person, who, acting under color of state law, deprives an individual of any "rights, privileges, or immunities secured by the Constitution and laws" of the United States. Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It provides the procedural vehicle for bringing suit as a "method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989). The plaintiff must identify the specific constitutional right that was infringed. Id. at 394. O'Gorman alleges that the City deprived him of his property and liberty interests without ...


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