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O'Gorman v. City of Chicago

United States District Court, N.D. Illinois

July 25, 2013

KEVIN O'GORMAN, Plaintiff,

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For Kevin O'Gorman, Plaintiff: Amy Paluch Epton, LEAD ATTORNEY, Nicholas Edward Kasmer, Terrance Bryan McGann, Travis J. Ketterman, Whitfield Mcgann And Ketterman, Chicago, IL.

For City of Chicago, a municipal corporation, Defendant: Amber Achilles Ritter, LEAD ATTORNEY, City of Chicago (30 N LS), Chicago, IL.

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Robert M. Dow, Jr., United States District Judge.

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. After his first complaint was dismissed, O'Gorman filed an amended complaint, adding additional facts and an equal protection claim. The City has moved to dismiss the amended complaint. For the reasons stated below, the Court grants the City's motion to dismiss [35] in its entirety.

I. Background

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, 179 L.Ed.2d 1149 (2011). O'Gorman worked for the City as the General Foreman of Trades. 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. Arrow is owned and operated by Donald Beal. In November 2004, the Inspector General's Office of the City began to investigate O'Gorman's orders from Arrow after an Arrow employee reported that the company treated orders placed by O'Gorman differently from other orders. At the time, Alexander Vroustouris was the Inspector General and William Marback worked as a Deputy Inspector General. According to the amended complaint, Arrow and Beal impeded the Inspector General's investigation by destroying relevant documents and creating fake ones to replace them. O'Gorman further alleges that Vroustouris did not make efforts to retrieve the destroyed documents or investigate Arrow's or Beal's actions with respect to them. Despite Arrow's and Beal's misconduct, O'Gorman alleges that the City continued to award Arrow large contracts.

On May 7, 2007, in connection with the Inspector General's investigation, O'Gorman was arrested and charged with theft of City property. Two days later, he was placed on paid administrative leave. On May 10, the City issued a press release announcing that O'Gorman had been

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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." This information was published shortly thereafter in the Chicago Tribune and the Inspector General provided a link to the Tribune article on its website about two weeks later. Around the time that O'Gorman was criminally charged and while he was still on paid administrative leave, Frank Scalise, Deputy Commissioner and O'Gorman's immediate supervisor, and Ron Huberman, then-Chief of Staff to the Mayor, told O'Gorman that if he resigned, he would be reinstated once he was acquitted of the criminal charges. [1]

In addition to the criminal charges, O'Gorman also was charged with violations of the City's Personnel Rules during the summer of 2007. At the time that O'Gorman was served with the charges, Fran Bailey, the City's Human Resources Director, advised O'Gorman's union representative (Thomas Ryan) that if O'Gorman did not resign from his City employment, he would be fired. Bailey also told Ryan that a hearing on the charges would be a " sham." O'Gorman resigned on August 24, 2007.

During his criminal trial, O'Gorman alleges that the State's evidence against him included documents that Arrow allegedly fabricated during the Inspector General's investigation, some of which contained O'Gorman's forged initials and signature. On January 19, 2010, the Cook County Criminal Court acquitted O'Gorman of all criminal charges. In the course of the criminal proceedings, Beal, and Beal's assistant, Mark Piazza, allegedly entered a guilty plea in which they admitted to defrauding the City. After he was acquitted, O'Gorman immediately requested reinstatement. Judy Martinez, the City Commissioner, assured O'Gorman's attorney that his reinstatement would be reviewed in light of his acquittal and the statements made by Scalise and Huberman, but the City ultimately refused to reinstate O'Gorman.

O'Gorman alleges that the City refused to reinstate him because he was placed on a " Do-not-hire List." Am. Compl. ¶ 40. [2] O'Gorman alleges that he was placed on the list when he resigned, but was not told that would be a consequence of his resignation. The list allegedly was maintained by the Mayor's office and contained as many as 4,600 names. Individuals on the list were barred from City employment. The existence of the list was made public in 2009, and the names on the list, including O'Gorman's, were published in a February 2011 press release by the City. The list was revised in 2011 to include only individuals who had engaged in illegal acts

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or other acts of moral turpitude, yet continued to include O'Gorman. O'Gorman alleges that once a person's name is added to the list, there is no process to seek its removal.

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. 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.

O'Gorman filed this lawsuit in April 2011. After his original complaint was dismissed, O'Gorman filed an amended complaint. In Count 1, O'Gorman alleges that the City deprived him of his property and liberty interests in employment without due process, violating his rights under the Fourteenth Amendment. [3] In Count 2, O'Gorman alleges that the City failed to afford him equal protection under the law, also in violation of his rights under the Fourteenth Amendment. O'Gorman seeks redress under the Fourteenth Amendment and 42 U.S.C. § 1983. Id. at 22, 25. [4] The City again has moved to dismiss all claims.

II. Legal Standard for Rule 12(b)(6) Motion to Dismiss

" 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). To survive a Rule 12(b)(6) motion to dismiss, a complaint must satisfy the requirements of Rule 8. Fed.R.Civ.P. 8. First, the complaint must provide " a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), such that the defendant is given " fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). 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. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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. " While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic , 550 U.S. at 555

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(citations, quotation marks, and brackets omitted).

III. Analysis

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, 114 S.Ct. 2068, 129 L.Ed.2d 93 (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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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 due process and failed to afford him equal protection under the law, all in violation of the Fourteenth Amendment. In moving to dismiss the amended ...

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