United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
SARA L. ELLIS, District Judge.
Plaintiff Douglas Zimny, a Lieutenant with the Sheriff's Office, claims that Defendants Cook County Sheriff's Office (the "Sheriff's Office"), the County of Cook (the "County"), Thomas Dart, Joseph Ways, Sr., Gary Hickerson, Zelda Whittler, Terrence Hake, Ralph Billingslea, and George Turner retaliated against him for exercising his First Amendment rights (Count I) and for bringing claims to the Shakman compliance monitor in violation of the Illinois Whistleblower Act (the "IWA"), 740 Ill. Comp. Stat. 174/1 et seq. (Count II). Defendants have moved to dismiss the Complaint which the Court grants in part and denies in part. Zimny's First Amendment retaliation claims based on alleged retaliatory acts arising after July 30, 2010 survive Defendants' challenges. Because the Court lacks subject matter jurisdiction over Zimny's IWA claims, those claims are dismissed. Additionally, because Zimny's claims against the Sheriff's Office are redundant to the official capacity claims against Sheriff Thomas Dart, the Court dismisses the Sheriff's Office from the case.
Zimny has been employed with the Sheriff's Office since August 16, 1989 and currently holds the rank of Lieutenant. He has an exemplary record with the Sheriff's Office and has received letters and commendations for his outstanding performance as a supervisor. At all relevant times, Zimny satisfactorily fulfilled his assigned duties.
In the 2006 Democratic primary election, Zimny publicly supported Richard Remus over Thomas Dart for the position of Cook County Sheriff, despite warnings from colleagues that support for Remus "would not be good for [Zimny]." Compl. ¶ 31. Indeed, around the time of the election and continuing thereafter, Defendants retaliated against Zimny because he supported Remus in the 2006 elections. This retaliation included denying Zimny a promotion and repeatedly transferring him from his assigned shift.
Under the Shakman Decree, the Sheriff's Office is barred 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 government employee, upon or because of any political reason or factor." Shakman v. Democratic Org. of Cook County, 481 F.Supp. 1315, 1358 (N.D. Ill. 1979), vacated sub nom., Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987). On October 30, 2008, a Supplemental Relief Order ("SRO") was entered that set out a process to adjudicate alleged violations of the Shakman Decree. Defs.' Ex. A, Doc. 22-1. The SRO described "the political patronage activities that are prohibited" at the Sheriff's Office and "provide[d] procedures for addressing alleged Shakman violations occurring both before and after the entry of the SRO." Maxwell v. County of Cook, No. 10 CV 00320, 2011 WL 4639530, at *4 (N.D. Ill. Mar. 17, 2011). Present and past Sheriff's Office employees were directed to use the SRO's claims procedures to seek a monetary award for alleged Shakman Decree violations that predated the SRO's entry. Id. This claims procedure was the "sole recourse for individuals seeking to enforce the [ Shakman Decree] for violations" predating October 30, 2008. Defs.' Ex. A, Doc. 22-1 at 19. Those employees who believed they were victims of political retaliation before this date and wanted to file a "separate lawsuit under a theory of relief other than a violation of the [ Shakman Decree]" were required to submit an "Opt-Out Request" no later than February 27, 2009. Id. (emphasis added). Employees who failed to opt-out lost their right to file suit to pursue claims of political discrimination predating final approval of the SRO. Id.
Following the SRO's procedures, Zimny filed a Shakman complaint on February 25, 2009, complaining that he was denied a promotion to the Sheriff's Police, a preferred unit at the Sheriff's Office, as a result of his support for Remus in the 2006 election. In March 2010, judgment was entered in Zimny's favor, and in May 2010, Zimny received a monetary award.
This award, however, did not bring an end to the retaliation to which Zimny was subjected. Since receiving the Shakman award on May 12, 2010, Zimny has been denied a promotion to Commander and had various Office of Professional Review ("OPR") investigations reopened despite being previously dismissed. Billingslea also subjected Zimny to multiple hours of interrogation on September 11, 2011 with respect to one of the OPR investigations and de-deputized him in violation of the Sheriff's Office Collective Bargaining Agreement on October 5, 2011. On January 12, 2012, Zimny was notified of a recommendation of termination pursuant to the reopened disciplinary charges and was thereafter served with charges seeking his termination on February 27, 2012. At a March 14, 2012 OPR hearing on another disciplinary charge, Hake and Ways refused to allow both Zimny's attorney and union representative to appear despite their presence being authorized by the Collective Bargaining Agreement and NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975).
On March 17 and 18, 2012, Zimny reported the ongoing harassment and retaliation to Dart and the Sheriff's Office command staff but received no response. On March 26, 2012, Zimny learned that he had been removed from consideration for promotion to Commander, allegedly because of an attendance problem. Defendants refused to provide Zimny with any documentation of this attendance problem, leaving Zimny without the ability to dispute the allegation of having an attendance problem. On April 24 and May 7, 2012, Zimny made requests to be re-deputized, but both Ways and Hickerson have left those requests unanswered.
A motion to dismiss under Rule 12(b)(1) challenges the Court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The party asserting jurisdiction has the burden of proof. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). The standard of review for a Rule 12(b)(1) motion to dismiss depends on the purpose of the motion. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009). If a defendant challenges the sufficiency of the allegations regarding subject matter jurisdiction (a facial challenge), the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See Apex Digital, Inc., 572 F.3d at 443-44; United Phosphorus, 322 F.3d at 946. If, however, the defendant denies or controverts the truth of the jurisdictional allegations (a factual challenge), the Court may look beyond the pleadings and view any competent proof submitted by the parties to determine if the plaintiff has established jurisdiction by a preponderance of the evidence. See Apex Digital, 572 F.3d at 443-44; Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006).
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Iqbal, 556 U.S. at 678.
I. First Amendment Retaliation ...