United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Plaintiff Frank Schmalz has brought this action pursuant to 42 U.S.C. § 1983, asserting claims for: violations of his First Amendment rights against all Defendants (Counts I and II); mandamus against all Defendants (Count III); and a state law claim for defamation per se against Defendant Ken Krochmal (Count IV). Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants have moved to dismiss Counts I, II, and III or, alternatively, to dismiss Tom Corgiat and Randy Czajka as Defendants and dismiss Defendant Krochmal from Counts I, II and III.
The following facts are drawn from the Complaint and are accepted as true for purposes of a motion to dismiss. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Schmalz is a police sergeant for the Village of North Riverside, Illinois (the "Village"). (Compl. ¶ 21.) Schmalz is president of the Fraternal Order of Police, Lodge 110 ("FOP") and was the FOP chief negotiator with the Village. ( Id. ¶ 4.) He also served in a supervisor capacity on a highly coveted task force, known as West Suburban Enhanced Drug & Gang Enforcement ("W.E.D.G.E."). ( Id. ¶ 22.) In August 2012, Schmalz was the only sergeant who took the lieutenants' promotional exam and received a passing score. ( Id. ¶ 24.)
Schmalz alleges that the Village failed to promote him based on his union activity and endorsement of former trustee, Rocco Desantis, for mayor in the April 2013 Village election. ( Id. ¶¶ 83-84, 92-93.) At FOP meetings in October 2012 and January 2013, Schmalz advocated that the police union endorsee Desantis and Desantis's party, Transparency and Accountability in Politics ("TAP"). ( Id. ¶ 29.) After the FOP members voted to support the TAP party and Desantis, Schmalz engaged in campaigning activity in support of Desantis until the elections were held on April 9, 2013. ( Id. ¶ 31.) Krochmal, then mayor of the Village, publicly criticized and threatened Schmalz because Schmalz did not support the incumbent Village Interest Party ("VIP"). ( Id. ¶¶ 40-46.)
Shortly after Desantis lost the election, the then-chief of police was demoted and replaced by a new chief of police, Defendant Lane Niemann. Niemann was appointed by Krochmal with the advice and consent of the Defendant Board of Trustees. ( Id. ¶¶ 49-52.) Around the same time, one of the Village's four lieutenant positions became open due to a different promotion. ( Id. ¶¶ 56.) Schmalz was the only eligible candidate for promotion to the vacant lieutenant position, but he was not promoted. ( Id. ¶¶ 57-58.)
On April 22, 2013, Schmalz was removed from the W.E.D.G.E. task force without an explanation. On the same day, Niemann told Schmalz that the vacant lieutenant position had been eliminated and that Schmalz "would never be promoted." ( Id. ¶¶ 59-60.) In June 2013, Schmalz met with Defendant Mayor Hugh Hermanek to request consideration for a second vacant lieutenant position of commander, which had recently opened due to a death of a commander. ( Id. ¶ 102.) Hermanek stated he had heard that Schmalz would have been appointed police chief if Desantis had won the election. ( Id. ¶¶ 69-70.) Schmalz was later placed on desk duty by Niemann. ( Id. ¶ 73.) Another officer, Christian Ehrenberg, was appointed to the lieutenant position of commander, even though his appointment violated the Village's ordinance because he did not hold the rank of lieutenant. ( Id. ¶ 106.)
Schmalz has named as Defendants the following: the Village; Hermanek (former trustee and current mayor); Krochmal (former mayor); Niemann (current police chief); Desantis (former trustee and former mayoral candidate); Tom Corgiat (former trustee); Randy Czajka (former trustee); H. Bob Demopolous (current trustee); Vera Wilt (current trustee); Jason Bianco (current trustee); Deborah Czajka (current trustee); Matthew Decosola (current trustee); and Joe Mengoni (current trustee).
To properly assert a claim in a complaint, the plaintiff must present "a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for the relief sought." Fed.R.Civ.P. 8. A defendant may assert several defenses to a claim in a complaint by motion, including "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When assessing a Rule 12(b)(6) motion to dismiss, courts construe the complaint in the light most favorable to the plaintiff all, well-pleaded facts are accepted as true, and all reasonable inferences are construed in favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
In order to withstand a motion to dismiss under Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).
Dismissal of Defendants Krochmal, Corgiat, Randy Czajka and Desantis
Defendants first argue that Defendants Krochmal, Corgiat, and Randy Czajka must be dismissed from Counts I, II and III because they were not trustees or Village officials at the time of the alleged unlawful employment actions. In his Response, Schmalz does not contest that these Defendants were no longer trustees or officials and does not appear to contest their dismissal. Instead, Schmalz requests leave to amend his Complaint to add the additional adverse employment action of his removal from the W.E.D.G.E task force, which occurred on April 22, 2013, before those Defendants left their ...