PATRICK DOYLE, DANIEL HOULIHAN, JOHN NOLAN, ROBERT OLSON, MICHAEL PADALINO, JOHN PIGOTT, EUSEBIO RAZO, VERONICA RODRIGUEZ, MICHAEL ROMAN, RICHARD SOTO, and CAROL WEINGART, Plaintiffs,
THE CITY OF CHICAGO, BRIAN THOMPSON, Individually, TERRY HILLARD, Individually, and UNKNOWN AND UNNAMED DEFENDANTS, Defendants.
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
Before the Court are Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint (ECF No. 35) and Plaintiffs' Motion to Compel (ECF No. 52). For the reasons stated herein, Defendants' Motion is denied, and Plaintiff's Motion is granted in part and denied in part.
Defendant City of Chicago (the "City") employed Plaintiff police officers as Security Specialists in Unit 542. Security Specialists are assigned to provide security to the Mayor of Chicago and other dignitaries in the City. The City employed at least twenty-two Security Specialists. Upon becoming Security Specialists, Plaintiffs received increased benefits and a pay raise. Plaintiffs are Caucasian or Hispanic. Defendant Brian Thompson ("Thompson") was the Unit Commander of the Security Specialists assigned to Unit 542, and Terry Hillard ("Hillard") was the Interim Superintendent of the City of Chicago Policy Department. Both Thompson and Hillard are African-American.
On February 22, 2011, Rahm Emanuel ("Emanuel") was elected Mayor of Chicago. Plaintiffs allege that in late April or early May 2011, Hillard, Thompson and unknown individuals (collectively, the "Individual Defendants") transferred several police officers who were not Security Specialists to Mayor-Elect Emanuel and began treating them as Security Specialists. The Individual Defendants did not promote them officially to that rank, but instead allowed them to "act up" into the Security Specialist position. Plaintiffs allege that the officers that the Individual Defendants allowed to "act up" as Security Specialists had volunteered to work security for Emanuel when he was a mayoral candidate or were involved politically in his campaign. They claim that the Individual Defendants chose these officers to "act up" as Security Specialists because of their political affiliation with Emanuel. Plaintiffs allege that allowing employees to "act up" in this manner is disfavored, and that there are restrictions on such practices.
Plaintiffs claim that the Individual Defendants failed to follow these policies limiting "acting up" because they intended to replace Plaintiffs for political reasons. In addition, Plaintiff Pigott asked Thompson what factors Thompson would use to determine which officers stayed on as Security Specialists upon Emanuel's inauguration. Plaintiffs claim Thompson responded that "the color of your skin is your sin." Sec. Am. Compl. § 44.
On May 13, 2011, the Individual Defendants removed Plaintiffs Doyle, Houlihan, Padalino, Pigott, Razo, Rodriguez, Soto and Weingart from their Security Specialist positions without explanation. When these Plaintiffs were removed, they were demoted in title and rank and received a reduction in pay and benefits. Plaintiffs allege Individual Defendants did not remove any African-American Security Specialists despite the fact that Plaintiffs has more seniority.
On May 16, 2011, Emanuel was sworn into office. That same day, the Individual Defendants demoted Doyle, Houlihan, Padalino, Pigott, Razo, Rodriguez, Soto and Weingart and reassigned them to the training academy. These officers attended retraining for several weeks, and then were reassigned to work as police officers in various districts. Plaintiffs claim the Individual Defendants replaced them with officers who were affiliated politically with Emanuel.
Plaintiffs Nolan, Olson and Roman retained their rank of Security Specialists on May 16, 2011, but were reassigned to work security for former Mayor Richard M. Daley. Plaintiffs claim that the Individual Defendants knew that Nolan, Olson and Roman were not affiliated with Mayor Emanuel. These Plaintiffs worked on Mayor Daley's security detail until September 15, 2011, when the Individual Defendants reassigned them to the training academy for retraining. On October 21, 2011, Defendants issued a personnel order officially removing Nolan, Olson and Roman from their Security Specialist assignments. These three Plaintiffs were also demoted in title and rank and had their pay and benefits decreased. Plaintiffs claim that the Individual Defendants knew that the officers who replaced these three Plaintiffs were affiliated politically with Mayor Emanuel.
Plaintiffs filed this suit against The City and Thompson on August 13, 2012. On August 16, 2012, The City issued a statement indicating that all decisions relating to Emanuel's security detail were made by Hillard while he was interim police superintendent. Hillard also issued a statement confirming that he was involved in the selection of the replacement Security Specialists. Plaintiffs have amended their Complaint twice since filing, adding Hillard as a Defendant and naming "Unknown and Unnamed Individuals" as placeholder Defendants in the process. Plaintiffs Second Amended Complaint alleges four causes of action. Count I alleges violation of the Shakman Decrees against the City. Count II alleges violation of Plaintiffs' First Amendment rights pursuant to 42 U.S.C. § 1983 by the Individual Defendants. Count III alleges racial discrimination in violation of 42 U.S.C. § 1981 against the Individual Defendants. Count IV alleges racial discrimination against the City in violation of Title VII. Defendants now move to dismiss all counts.
A. Defendant's Motion to Dismiss (ECF No. 35)
In ruling on a motion to dismiss under Rule 12(b)(6), courts accept as true all of the plaintiff's well-pleaded factual allegations and any inferences reasonably drawn from them. Chi. Police Sergeants Ass'n v. City of Chicago, No. 08-CV-4214, 2011 U.S. Dist. LEXIS 72424 at *7 (N.D. Ill. July 6, 2011). To survive a motion to dismiss, the complaint must comply with Rule 8(a) by providing a short plain statement of the claim showing that the pleader is entitled to relief while providing defendants fair notice of what the claim is and the grounds upon which it rests. Id. The allegations must be sufficient to raise the possibility of relief above the "speculative level." Id. at *8.
Rule 12(b)(1) requires dismissal of any claim over which the federal court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). In reviewing a motion challenging subject matter jurisdiction, the district court may look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether subject matter jurisdiction exists. Maxwell v. County of Cook, No. 10 CV 00320, 2011 U.S. Dist. LEXIS 29130 at *8 (N.D. Ill. Feb. 1, 2011).
1. Count I - Shakman (City of Chicago)
Plaintiffs' first cause of action stems from the results of longstanding litigation in this District that began with Shakman v. Democratic Org. of Cook County, 310 F.Supp. 1398 (N.D. Ill. 1969). This litigation led to a consent judgment (the "1972 Consent Decree") that prohibited defendants from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of government employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." See O'Sullivan v. City of Chicago, 396 F.3d 843, 848 (7th Cir. 2005) (providing history of Shakman litigation). In 1983, a second consent judgment was entered (the "1983 Consent Decree") that enjoined the City from "conditioning, basing or affecting  employment with the City of Chicago on political reasons or factors while maintaining the ability of the elected officials of the City lawfully to establish, manage and direct the policies and affairs of the City." Id. The 1972 Consent Decree remained in effect, and the district court retained jurisdiction to ensure compliance with the two decrees. Id. at 849.
Defendants argue that Plaintiffs' Shakman claim must fail for three reasons. First, they claim Plaintiffs do not have standing to assert a Shakman claim. Second, even if Plaintiffs do have standing, they have not pled sufficiently a cause of action under Shakman. Third, five of the Plaintiffs are time barred from asserting a Shakman claim.
To have standing to bring a claim under the Shakman Decrees, a plaintiff "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Everett v. Cook County, 704 F.Supp.2d 794, 804 (N.D. Ill. 2010) (quoting Plotkin v. Ryan, 239 F.3d 882, 884 (7th Cir. 2001)). Plaintiffs meet these standing requirements. First, they allege a personal injury - their demotion from being Security Specialists. Plaintiffs claim their demotions involved their title, rank, pay and benefits all being decreased. Second, Plaintiffs allege that this injury was traceable to Defendants' unlawful conduct. Plaintiffs claim that they were replaced by other officers who were allowed improperly to "act up" as Security Specialists because they were affiliated politically with Mayor Emanuel. Plaintiffs had no such affiliation. Third, Plaintiffs' injuries would be redressed by their requested relief, which includes compensatory damages. Thus, Plaintiffs' have standing to assert their Shakman claim. See Everett, 704 F.Supp.2d at 804.
Despite this, Defendants argue that Plaintiffs lack standing based on the language of the applicable City Hiring Plan. Defendants first argue that the "acting up" of officers to the Security Specialist positions and Plaintiffs' reassignments from that position "are separate and distinct." Defs.' Mem. in Support of Mot. to Dismiss at 4, ECF No. 36. Defendants claim that, even if Plaintiffs' allegations regarding officers being allowed improperly to "act up" are true, they suffered no legal injury from that "acting up" process alone.
Defendants then argue that, even if Plaintiffs' demotions were influenced by political factors, they are not actionable because they did not violate the applicable City Hiring Plan that was approved and entered by the Court in the Shakman litigation. Defendants point out specifically that the Chicago Police Department Notice, D.N.07-47, referenced in Plaintiffs' Second Amended Complaint states that political factors cannot be considered when selecting an officer assigned as a Security Specialist, but there is no similar prohibition on considering political factors in the removal of a Security Specialist. See Id. Ex. A, ECF No. 36-2. Similarly, the City Hiring Plan entered by agreement in Shakman on June 29, 2011 which would apply to the September 15, 2011 reassignments provides that "[t]he hiring department or official must not... take into account Political Reasons or Factors or other Improper considerations when evaluating or selecting a candidate" for the Security Specialist position. Id. Ex. C. But no such prohibition on political affiliation is discussed with respect to the removal of Security Specialists. Id.
The Court disagrees with both of Defendants' contentions. First, it does not view Plaintiffs' "acting up" allegations as being separate from Plaintiffs' demotion allegations. A fair reading of the Second Amended Complaint is that the two sets of allegations relate to a single larger scheme of improper conduct. Plaintiffs are alleging that the Defendants replaced Plaintiffs with officers who were affiliated politically with Mayor Emanuel. See, e.g., Sec. Am. Compl. § 40 ("The Individual Defendants failed to follow the relevant policies and procedures for the acting up' Security Specialists because they intended to replace the Plaintiffs with the acting up' Security Specialists for political reasons."); id. § 47 ("On or about May 16, 2011, the Individual Defendants replaced Plaintiffs... with police officers who had either volunteered for the Rahm Emanuel mayoral campaign or had a political connection to the Rahm Emanuel campaign."). Thus, the alleged improper "acting up" of some officers and the demotion of the Plaintiffs should not be viewed as separate occurrences. As such, Plaintiffs would be, in fact, harmed by the other officers "acting up."
Second, the Court is unconvinced that the Hiring Plan and related documents bar Plaintiffs from bringing suit. Defendants cite no authority for the proposition that for Plaintiffs to have standing to bring a Shakman claim, there must be an explicit violation of the City's Hiring Plan. Under the 1973 Shakman Decree, the City is enjoined from directly or indirectly "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." O'Sullivan, 396 F.3d at 847. Plaintiffs are claiming a violation that fits squarely into this prohibition - they claim they were demoted and replaced because of political affiliation. That the court-approved Hiring Plan fails to restate explicitly this prohibition with respect to the removal of Security Specialists should not be a bar to Plaintiffs' claims, particularly when the plan clearly acknowledges elsewhere that such political affiliations should not be considered in the evaluation and hiring of a Security Specialist. For these reasons, the Court finds that Plaintiffs do have standing to assert a Shakman claim against the City. Defendants' Motion to Dismiss Plaintiffs' Shakman claim pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is denied.
b. Plaintiffs' Shakman Claim is Pled Adequately
"To state a claim under the Shakman Decree, a plaintiff must establish that a political reason or factor was the cause of the complained decision." Chi. Police Sergeants Ass'n, 2011 U.S. Dist. LEXIS 72424 at *9. Defendants argue that Plaintiffs' Complaint is conclusory and missing key facts. The Court disagrees. Plaintiffs allege clearly that their lack of political affiliation with Mayor Emanuel led to them being demoted and replaced by officers who were affiliated with Mayor Emanuel. These allegations are not conclusory, or a mere recitation of the elements of a Shakman claim. Plaintiffs allege, step-by-step, facts describing the election of Mayor Emanuel, the "acting up" of Emanuel supporters as Security Specialists, and the reassignments and demotions of two groups of Plaintiffs. Plaintiffs also allege that Defendants' actions were taken because they knew Plaintiffs were not affiliated with Mayor Emanuel. These allegations are sufficient to give Defendants fair ...