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Michael Harris v. Town of Cicero et al.

September 24, 2012


Name of Assigned Judge James F. Holderman Sitting Judge if Other or Magistrate Judge than Assigned Judge



For the reasons explained in the Statement section of the order, the defendants' "Motion to Dismiss Pursuant to Rule 12(b)(6)" [21] is granted in part and denied in part. Counts IV and V of plaintiff Michael Harris's First Amended Complaint [10] are dismissed. All other counts will stand. The defendants' answer to Counts I, II, and III is due October 8, 2012. Counsel are to confer pursuant to Rule 26(f) and jointly file a Form 52 on or before October 22, 2012. The case is set for status and entry of a scheduling order at 9:00 AM on October 25, 2012. The parties are encouraged to discuss settlement.

O[ For further details see text below.] Docketing to mail notices.


Plaintiff Michael Harris is an African-American male who previously served as an employee of the Town of Cicero (the "Town") Police Department. (Dkt. No. 10 ("First Am. Compl.") ¶¶ 6-7.) Harris alleges that on February 1, 2008, the Police Department brought disciplinary charges against him seeking his termination. (Id. ¶ 14.) Harris elected to have the charges heard by an independent arbitrator under the collective bargaining agreement between the Town and the Illinois Fraternal Order of Police Labor Council, a union of which Harris was a member. (Id. ¶ 15.) The arbitrator ruled in Harris's favor, after which Lori Lelis, the Cicero Superintendent of Police, filed further disciplinary charges seeking to terminate Harris due to his alleged misconduct in applying for disability benefits. (Id. ¶¶ 16-17.) Although Harris denied that he committed any misconduct, Larry Dominick, the President of the Town, suspended Harris without pay pending the outcome of the disciplinary proceeding. (Id. ¶¶ 18-19.) Thereafter, Harris's employment was terminated. (Id. ¶ 25.)

Harris alleges that the defendants are liable for improperly terminating him from his position because of his race and because of his election to have the disciplinary charges heard by the arbitrator. Specifically, Harris claims that all defendants are liable for terminating him on the basis of race under 42 U.S.C. § 1983 (Count II) and 42 U.S.C. § 1981 (Count III), for retaliating against him in violation of his First Amendment rights because he brought the disciplinary charges before a union arbitrator (Count IV), and for retaliating against him in violation of the Illinois Public Labor Relations Act (Count V). Harris also alleges that the Town is liable under Title VII of the Civil Rights Act of 1964 for terminating him on the basis of race (Count I). Currently pending before the court is the defendants' Motion to Dismiss (Dkt. No. 21), which the court grants in part and denies in part.


Under the Federal Rules of Civil Procedure, 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 complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "include sufficient facts 'to state a claim for relief that is plausible on its face.'" Cole v. Milwaukee Area Tech. College Dist., 634 F.3d 901, 903 (7th Cir. 2011) (quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). "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, 129 S. Ct. 1937, 1949 (2009). In ruling on a Rule 12(b)(6) motion, the court "construe[s] the . . . [c]omplaint in the light most favorable to Plaintiff, accepting as true all well-pleaded facts and drawing all possible inferences in his favor." Cole, 634 F.3d at 903.


I. Count I (Title VII)

The defendants have withdrawn their motion insofar as it relates to Count I (Dkt. No. 26, at 1), so the court need not address the contentions relating to Count I.

II. Counts II and III (§ 1983 & § 1981)

The Town contends that Counts II and III should be dismissed because Harris alleged only that the Town's unlawful discriminatory motive was a "motivating factor" of his termination, and not a "but-for cause," which is a required element of a claim of discrimination under § 1983 and § 1981. See Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009) ("[U]nless a statute . . . provides otherwise, demonstrating but-for causation is part of the plaintiff's burden in all suits under federal law."). As the Town acknowledges, however, the Seventh Circuit recently clarified that showing but-for causation is the plaintiff's burden of proof at trial, and that at the summary judgment stage, the plaintiff need only show that the unlawful discrimination was a motivating factor of any adverse action. See Kidwell v. Eisenhauer, 679 F.3d 957, 964-65 (7th Cir. 2012). The Town has cited no cases requiring an allegation at the pleading stage that the defendant's discriminatory motive was a but-for cause. Such a requirement would make no sense, for such statements about causation are legal conclusions, which are not required at the pleading stage. Ryan v. Ill. Dep't of Children & Family Servs., 185 F.3d 751, 764 (7th Cir.1999) ("While a plaintiff may plead facts that show she has no claim, she cannot plead herself out of court by citing to the wrong legal theory or failing to cite any theory at all." (citation omitted)). The court thus ...

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