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Martin Mcgarry and Bryan ) Johnson v. Anthony Mcclellan

June 4, 2012

MARTIN MCGARRY AND BRYAN ) JOHNSON, PLAINTIFFS,
v.
ANTHONY MCCLELLAN, JAMES D'AMICO, PATRICK NOLAN, AND BRIAN BARON, IN THEIR INDIVIDUAL CAPACITIES. DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Plaintiffs Martin McGarry and Bryan Johnson filed a one count complaint against defendants Martin McClellan, James D'Amico, Patrick Nolan, and Brian Baron, in their individual capacities (collectively "defendants"), alleging that defendants harassed, locked out and retaliated against plaintiffs for exercising their First Amendment rights in violation of 28 U.S.C. § 1983. Before the court is defendants' motion to dismiss [#15], which will be denied.*fn1

BACKGROUND*fn2

Plaintiffs' complaint stems from incidents that occurred during the course of their employment with the Cook County Facilities Management Department (the "Department"). Johnson worked as a steamfitter and McGarry worked as a steamfitter foreman for the Department. Both men are members of Pipefitters Association Local Union 597 (the "Union"). D'Amico is the director of the Department and McClellan was a deputy director. Nolan is a chief engineer for Cook County and Baron is an assistant chief engineer.

In or around June 2011, an apprentice for Anchor Mechanical Corporation ("Anchor"), a contractor with political ties to Nolan, began working as a steamfitter for the Department. McGarry complained to McClellan that the apprentice was unqualified and not in the correct union. Thereafter, D'Amico and McClellan wanted to move McGarry's team of steamfitters from their current location at the powerhouse in the Cook County Jail to an unfit storage area in the Cook County courthouse so McGarry could not police whether Union steamfitters were doing jobs in the Department.*fn3 Plaintiffs' new work space in the courthouse was filthy and McGarry advocated for a different work location during his monthly meetings with McClellan and other foremen. Plaintiffs concluded that defendants were trying to push them out of their jobs in favor of the more costly Anchor by, for example, giving plaintiffs fewer hours and steering contract jobs to Anchor.

In February 2011, during budget time for the next year, plaintiffs learned that all in-house pipefitters were being eliminated and that their work would be put up for bid. Plaintiffs complained to Cook County Commissioners Bridget Gainer and Liz Gorman about what they saw as corruption in Cook County government, specifically, defendants' attempt to steer work to Anchor despite that it would cost the county significantly more money. Eventually, the budget passed without plaintiffs' jobs. Thereafter they were locked out of the powerhouse despite having work orders to complete. Defendants then moved plaintiffs to the south campus to work. Plaintiffs complained to Cook County Sheriff Tom Dart and his chief of staff about defendants' efforts to steer work to Anchor, and the impact that contracting with the more costly Anchor would have on the Sheriff's and the county's budget. Dart immediately set up an accountability meeting with D'Amico, McClellan and Nolan. Thereafter, defendants' harassment of plaintiffs intensified.

In February 2011, McGarry received a call from McClellan's assistant about an emergency job that required McGarry to get into the locked powerhouse. Plaintiffs drove to the powerhouse and defendant Baron let them in. While there, plaintiffs and two other individuals retrieved paperwork and/or personal property that they had left in the powerhouse. Plaintiffs and other steamfitters drove the work van around the back but they did not have keys to get out and Baron would not let them out until McClellan arrived. McClellan arrived and told plaintiffs that they could not do the emergency job because Anchor was already doing it. Baron and McClellan then accused plaintiffs of stealing and called them disgruntled, violent employees in a report to the Sheriff's police.

The next day plaintiffs arrived at work and all the locks were changed, including the locks on the south campus where plaintiffs' tools were stored. Baron and his employees had thrown out plaintiffs' personal belongings, tools, chairs and desks. McClellan called plaintiffs into his office and accused them of stealing. John Joiner, the previous head of the Department, told McGarry that "you have to walk the plank, get laid off, but if you don't make any more noise, you will be back on the job in a couple of weeks." The next day, plaintiffs were locked out of facilities countywide and D'Amico and McClellan were telling others at the county that plaintiffs were troublemakers and thieves. On March 17, 2011, D'Amico met with McGarry and told him that plaintiffs were locked out because defendants did not trust them. Shortly thereafter the Union business representative told D'Amico that his employees would be back at the powerhouse on Friday morning to do their work. A couple of days later, plaintiffs started setting up to begin working. They were again locked out of the facility and after four hours, McClellan took them off the job. Plaintiffs' jobs were eventually put back into the county budget, but plaintiffs continue to suffer harassment, retaliation and shortened work hours as a result of their complaints.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis, but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "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." Iqbal, 556 U.S. at 678. At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Rather, it is the facts that count.

ANALYSIS

Defendants move to dismiss plaintiffs' complaint under Rule 12(b)(6) because (1) plaintiffs did not make their speech as concerned citizens, but rather as public employees; and (2) plaintiffs' speech was not on a matter of public concern. "[T]he First Amendment, made applicable to the states through the Fourteenth Amendment, prohibits the government from retaliating against its employees for engaging in protected speech." Gross v. Town of Cicero, Ill., 619 F.3d 697, 703-04 (7th Cir. 2010). To state a retaliation claim under § 1983, a plaintiff must show that "(1) his speech was constitutionally protected; (2) the protected speech was a but-for cause of the employer's action; and (3) he suffered a deprivation because of the employer's action." Wackett v. City of Beaver Dam, Wis., 642 F.3d 578, 581 (7th Cir. 2011). Public employees do not surrender their First Amendment rights by reason of their employment, and "[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively." Garcetti v. Ceballos, 547 U.S. 410, 419, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). The threshold inquiry, therefore, is whether the individual was speaking as a citizen or as a public employee. The Supreme Court has stated that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421. This is because "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Id. at 421-22; see also Abcarian v. McDonald, 617 F.3d 931, 935-37 (7th Cir. 2010) (applying Garcetti to bar a retaliation claim brought against individual defendants).

A. Whether plaintiffs spoke as "citizens" or "public employees"

To determine whether a plaintiff spoke as an employee or as a citizen, the court must "take a practical view of the facts alleged in the complaint, looking to the employee's level of responsibility and the context in which the statements were made." Abcarian, 617 F.3d at 937. After Garcetti, focusing on whether the employee's speech was part of his core job functions is too narrow an inquiry. Spiegla v. Hull, 481 F.3d 961, 966 (7th Cir. 2007). Rather, the relevant question is whether "the expression [was] something done pursuant to the employee's professional duties? If so, then the First Amendment has no application." Davis v. Cook Cnty., 534 F. 3d 650, 653 (7th Cir. 2008); see also Callahan v. Fermon, 526 F.3d 1040, 1041 (7th Cir. 2008) ("The controlling factor in the Garcetti inquiry is whether the speech 'owes its existence to a public employee's professional responsibilities.'" (internal quotation marks and citation omitted)). "Determining the official duties of a public employee requires a practical inquiry into what ...


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