United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
Baldo Bello, a police officer employed by the Village of Skokie and a staff sergeant in the United States Marine Corps Reserve, has sued Skokie; police chief Anthony Scarpelli; deputy chief Alfredo Lopez; commander Michael Krupnik; Christa Ballowe, the Village's personnel director; and Albert Rigoni, the Village's manager and chief administrative officer. Bello asserts claims for: 1) discrimination and retaliation under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311 (counts 1 and 2), 2) violations of the First and Fourteenth Amendments under 42 U.S.C. § 1983 (counts 3 and 4), and 3) breach of the Illinois Whistleblower Act (IWA), 740 ILCS 174/5 (count 5). Bello seeks declaratory and injunctive relief, as well as compensatory, liquidated, and punitive damages.
The defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Bello's claims. They argue that: 1) Bello has failed to assert a viable claim of discrimination or retaliation under USERRA, 2) USERRA supersedes his claims under section 1983, and 3) he has not alleged actionable conduct under IWA. For the reasons stated below, the Court dismisses Bello's section 1983 claims but declines to dismiss his claims under USERRA and IWA.
The Court has taken the following facts from Bello's amended complaint. The Court "accept[s] all well-pleaded facts as true and constru[es] all inferences in favor of the plaintiff[ ]." Gruber v. Creditors' Prot. Serv., Inc., 742 F.3d 271, 274 (7th Cir. 2014).
Bello joined the Marine Corps in 2001 and currently serves in the Marine Corps Reserve as a staff sergeant. This requires him to attend training at least one weekend per month for three to four days.
On January 3, 2006, Bello joined the Skokie Police Department as a police officer. A collective bargaining agreement (CBA) governs the terms of employment for Skokie police officers. Bello alleges that section 8.4 of the CBA states that "an employee will normally have 9 regular days off (RDOs) per calendar month.'" Am. Compl. ¶ 31. He says that Article IX of the CBA "guarantees employees the right to take different types of leaves of absence, specifically: sick leave, funeral leave, jury leave, military leave...." Id. ¶ 32. Bello alleges that Skokie police officers are required to submit their requested RDOs a few weeks before the beginning of each month. They request leave in the same way. Bello alleges that in preparing officers' monthly schedules, the police department takes their RDO and leave requests into account but does not guarantee that they will be honored and retains the authority to make any final scheduling decisions.
Bello alleges that before the beginning of each month, he requests military leave to attend his training as well as separate RDOs. Prior to September 2012, he says, the police department regularly granted his requests. Around September 12, 2012, however, commander Krupnik and personnel director Ballowe met with Bello to discuss a proposed policy requiring military members to use their RDOs to fulfill any military obligations rather than giving them separate military leave.
On September 20, 2012, Bello submitted a memorandum to all of the individual defendants in which he complained that the new policy would violate federal and state law. Around May 6, 2013, Bello communicated with Ballowe about his and another officer's request for military leave "as they related to the provisions of USERRA" and a similar Illinois statute. Id. ¶ 46. Around May 17, 2013, Bello complained that he and other officers were being discriminated against on the basis of their military service in violation of federal and state law. That day, police chief Scarpelli told Bello that he was no longer permitted to communicate with Ballowe about military leave. Also on May 17, 2013, Bello filed a formal grievance with Scarpelli about the new policy, again alleging that the policy would violate federal and state law.
In June 2013, Skokie implemented the new policy. As a result, the police department began scheduling Bello's RDOs to coincide with the days he had requested for military leave. On June 18, 2013, Scarpelli overruled Bello's grievance.
In September 2013, command staff accused Bello of misconduct for using what Bello refers to in the complaint as "an expression commonly used by members of the Marine Corps in order to indicate affirmation, acknowledgment, or readiness, " id. ¶ 72, even though he had used the expression for years without incident. Around October 1, 2013, Krupnik placed Bello on administrative leave "with the knowledge and consent of the other defendants." Id. ¶ 74. Around October 7, 2013, Deputy Chief Lopez, again with the knowledge and consent of the other defendants, advised Bello that he was to remain on administrative leave (the complaint does not describe the length of the administrative leave). Around October 14, 2013, Bello was told to report for "desk duty" the next day. Id. ¶ 80. Once more, Bello says, all of the defendants were aware of and consented to the reassignment. Around October 15, 2013, Lopez suspended Bello for one day for insubordination.
On March 12, 2014, Bello filed this suit. He filed an amended complaint on June 9, 2014 and a corrected amended complaint three days later. As indicated earlier, the defendants moved to dismiss all of Bello's claims.
"To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim to relief that is plausible on its face." Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (internal quotation marks omitted). "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).
The defendants argue as a preliminary matter that Bello's claims against the individual defendants should be dismissed because Bello "voluntarily withdrew" them in his amended complaint. Defs.' Opening Br. at 6. They say that in the amended complaint, "[p]laintiff has not made allegations of tortious conduct.... Plaintiff's allegations hinge upon and challenge the Village's RDO policy." Defs.' Reply at 3. "Moreover... a suit against government employees in their official capacity under §1983 should be treated as a suit against the government...." Defs.' Opening Br. at 6. In response, Bello says that his "counsel's intent in removing the individual-capacity language was simply to eliminate unnecessary verbiage.... [T]he complaint contains specific allegations regarding the actions that each individual defendant took...." Pl.'s Resp. Br. at 2.
Defendants' arguments lack merit. Bello's amended complaint does not specify if he is suing the individual defendants in their individual or official capacities. In establishing a pleading "regime for § 1983 claims that do not specify the capacity in which the defendant has been sued, " the Seventh Circuit has ruled that "[w]here the plaintiff seeks injunctive relief from official policies or customs, the defendant has been sued in her official capacity; where the plaintiff alleges tortious conduct of an individual acting under color of state law, the defendant has been sued in her individual capacity." Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000). An official-capacity suit is "another way of pleading an action against an entity of which an officer is an agent, " whereas an individual capacity suit "seek[s] to impose individual liability upon a government officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 25 (1991).
Bello's complaint makes it sufficiently clear that he is, in fact, asserting claims against the defendants in their individual capacities. For instance, he alleges that "[i]n each and every month from June 2013 and continuing to the date of this complaint, Defendants have ignored Officer Bello's requests and have scheduled his RDOs to coincide with his military obligations rather than granting his request for military leave." Id. ¶ 59. This and other similar assertions are the sort of allegations that seek to impose individual liability, not (or not just) liability on a governmental entity. The Court also notes that Bello seeks punitive damages, another indication of an individual capacity claim. See Miller, 220 F.3d at 494 (finding a claim for punitive damages as a strong indication of an individual-capacity claim due to its unavailability on a claim under section 1983 against a governmental entity).
1. Discrimination ...