United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L. ELLIS United States District Judge.
over for Chief of Police and later demoted, Plaintiff Rebecca
Sailsbery, currently a police sergeant for the Village of
Sauk Village (the “Village”) and formerly its
Deputy Chief of Police, sues Defendants the Village, its
Mayor David Hanks, its Public Safety Director, J.W. Fairman,
and Fairman's consulting company, Fairman Consultants,
Ltd., alleging gender discrimination and retaliation under
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000 et seq., and 42
U.S.C. §§ 1981 and 1983. The Village , Mayor Hanks
, and Fairman  each move to dismiss Sailsbery's
claims against them. Because the Court finds that the Chief of
Police of the Village is a discretionary policymaking
position, the Court dismisses Sailsbery's equal
protection claims against Mayor Hanks and Fairman in Counts V
and VI to the extent they allege she was not promoted to
Chief of Police. But because the Court is unable to determine
at the motion to dismiss stage that Chief of Police is an
appointed policymaking position specifically exempt from the
protections of Title VII, because Sailsbery need not allege a
similarly situated comparator at the pleading stage, and
because she sufficiently alleges her treatment was motivated
by her gender, the Court denies the Village's motion to
dismiss Sailsbery's Title VII claims in Counts I, II,
III, and IV. Because the Village is the proper defendant for
Title VII claims, the Court dismisses Sailsbery's claims
against Mayor Hanks and Fairman in Counts V and VI to the
extent they allege violations of Title VII. Finally, because
Sailsbery sufficiently alleges that Mayor Hanks and Fairman
violated her constitutional rights and were final
policymakers at the Village, the Court denies the
Village's motion to dismiss Sailsbery's § 1983
claim against the Village in Count VIII.
has worked in the Village's police department for
twenty-three years. Between 2009 and 2010, she was demoted
from Deputy Chief of Police to sergeant after Mayor Lewis
Towers became Mayor of the Village and subsequently sued the
Village, eventually settling the lawsuit. In 2012, a former
Chief of Police would not promote her to Deputy Chief of
Police, resulting in a second lawsuit.
Mayor Towers resigned in November 2012, Mayor Hanks became
Mayor. Sailsbery did not dismiss her pending lawsuit, so
Mayor Hanks set out on a course to retaliate against her and
others who did not dismiss their pending lawsuits. The Deputy
Chief of Police position sat vacant between 2010 and 2012,
and after Sailsbery submitted an application for the
position, Mayor Hanks did not allow the Chief of Police at
the time, Tim Holevis, to appoint Sailsbery, Holevis'
first choice, because of her lawsuit. Mayor Hanks hired a
management consulting firm to rank candidates for Deputy
Chief of Police, and it ranked Sailsbery most qualified. In
November 2013, Sailsbery filed a second pending federal
lawsuit relating Mayor Towers and a prior Chief of Police,
Robert Fox. Still, Sailsbery remained a sergeant until
September 2014, when she was promoted to Deputy Chief of
March 2015, Mayor Hanks proposed, and the Village's Board
of Trustees approved, the creation of a new Village position,
Public Safety Director, to oversee the police and fire
departments and report to the Mayor. Fairman became Public
Safety Director. Holevis immediately resigned his position as
Chief of Police. Fairman, who was not a police officer, could
not assume the Chief of Police role.
received orders to assume the responsibilities of Chief of
Police, but she was not promoted to acting or interim Chief
of Police, even though regulations called for this type of
promotion. Mayor Hanks refused to promote Sailsbery because
of her gender and in retaliation for her prior discrimination
claims. Hanks directly told Sailsbery she would not be
promoted to Chief of Police. Sailsbery filed an EEOC charge
in April 2015. Fairman and Mayor Hanks then began a campaign
impugning Sailsbery's credentials to serve as Chief of
Police. In response, in May 2015, Sailsbery made another
complaint of discrimination and retaliation to the Village.
In May 2015, Mayor Hanks and Fairman offered the Chief of
Police position to Jack Evans, another police sergeant, but
Evans declined the offer. And in May 2015, when Sailsbery
attempted to block Fairman from entering an area reserved for
police officers, Fairman pushed past her to get inside.
Fairman and Mayor Hanks continued to try to get Sailsbery
fired, including secretly investigating her, overworking her,
and filing false complaints against her. Fairman falsely
derided Sailsbery's work performance to a Village
Trustee. Mayor Hanks told a Village Trustee that that
Sailsbery would get hers and confirmed he was trying to make
Sailsbery fail as Deputy Chief of Police. Fairman gave her
more and more work, in an attempt to cause her to falter on
impossible assignments. When Sailsbery internally complained
to the Village, its retained law firm denied her claims and
failed to conduct an investigation.
Hanks appointed a new Chief of Police in August 2015, denying
Sailsbery a promotion because of her gender and in
retaliation for her discrimination claims. Hanks claimed a
three-member committee selected the new Chief of Police, but
two Trustees who were committee members announced that was
not true and that Mayor Hanks had individually appointed the
Chief of Police and the committee had not done its job. Mayor
Hanks and Fairman then demoted Sailsbery from Deputy Chief of
Police to sergeant, but Fairman ordered Sailsbery to continue
performing the tasks of the Deputy Chief and Chief of Police.
Fairman then demoted Sailsbery again, to patrol sergeant,
and, on the day of the demotion, he sent her to patrol
without any equipment.
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.
Retaliatory Failure to Promote (Count I)
alleges that while she was Deputy Chief of Police, she was
denied a promotion to Chief of Police in retaliation for the
discrimination allegations she made against the Village and
Hanks. To state a claim for retaliation in violation of Title
VII, Sailsbery must allege that she engaged in statutorily
protected activity and, as result of that activity, suffered
a materially adverse action. Hatcher v. Bd. of Trs. of S.
Ill. Univ., ___ F.3d ___, 2016 WL 3770555, at *3 (7th
Cir. July 14, 2016), overruled on other grounds by Ortiz
v. Werner Enters., Inc., ___ F.3d ___, 2016 WL 4411434
(7th Cir. Aug. 19, 2016).
Village moves to dismiss Count I, arguing that Sailsbery did
not plead a similarly situated comparator and that she did
not experience an adverse action because she had no
statutorily protected right to be named Chief of Police.
“the pleading standards in Title VII cases are
different from the evidentiary burden a plaintiff must
subsequently meet, ” and there is no requirement at the
motion to dismiss stage that a plaintiff plead a similarly
situated comparator sufficient to meet the prima
facie case outlined by McDonnell Douglas Corp v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). Luevano v. Wal-Mart Stores, Inc., 722 F.3d
1014, 1028 (7th Cir. 2013) (citations omitted) (internal
quotation marks omitted). “[U]nder a notice pleading
system, it is not appropriate to require a plaintiff to plead
facts establishing a prima facie case because the
McDonnell Douglass framework does not apply in every
employment discrimination case.” Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992 152
L.Ed.2d 1 (2002). The Village's argument regarding
similarly situated comparators, thus, fails.
Village also argues that Sailsbery does not allege an adverse
action because Title VII does not protect Sailsbery's
right to be promoted to Chief of Police. Specifically, the
Village argues that the Chief of Police position is exempt
from the Title VII's protections because it is a
policymaking position that does not fall within the
definition of “employee” positions protected by
the statute, so Sailsbery experienced no harm in being denied
a promotion to Chief of Police.
denial of a promotion to the chief of a municipal safety
agency, like the Village's police department, is not
actionable under Title VII if the position that the plaintiff
seeks is not within Title VII's protective scope. See
Deneen v. City of Markham, No. 91 C 5399, 1993 WL
181885, at *5 (N.D. Ill. May 26, 1993) (granting summary
judgment against plaintiff to the extent he claimed that he
was unlawfully denied promotion to fire chief position that
the court found to be exempted from Title VII's
“employee” definition). This is because Title VII
does not cover “appointees on the policymaking
level.” Opp v. Office of the State's Attorney
of Cook County, 630 F.3d 616, 619 (7th Cir. 2010)
(quoting 42 U.S.C. § 2000e(f)); Levin v.
Madigan, No. 07 C 4765, 2011 WL 2708341, at *9 (N.D.
Ill. July 12, 2011) (“Levin II”). To
determine whether a position is exempt as an appointed
policymaking position, the Court must determine if the
position is a policymaking position under Americanos v.
Carter, 74 F.3d 138 (7th Cir. 1996) and then determine
whether the position is appointed by an elected official.
Opp, 630 F.3d at 619-20, 621-22; Levin v.
Madigan, No. 07 C 4765, 2008 WL 4287778, at *2-4 (N.D.
Ill. Sept. 12, 2008) (“Levin I”)
(finding Title VII required bifurcated analysis into whether
position was policymaking and whether position was
position is an Americanos policymaking position if
it “authorizes, either directly or indirectly,
meaningful input into governmental decision-making on issues
where there is room for principled disagreement on goals or
their implementation.” Opp, 630 F.3d at 619;
Americanos, 74 F.3d at 141 (noting that test is
indistinguishable from the political patronage test used by
the Supreme Court in Branti v. Finkel, 445 U.S. 507,
100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) and Elrod v.
Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547
(1976) to determine if a government official is employee who
can be lawfully fired for political reasons).
“Discretion is also important: when an employee
exercises broad discretionary power, the state cannot easily
fire the employee for insubordination even though ‘the
employee's performance frustrates the implementation of
the administration's policies.'” Embry v.
City of Calumet City, Ill., 701 F.3d 231, 236 (7th Cir.
2012) (quoting Selch v. Letts, 5 F.3d 1040, 1044
(7th Cir. 1993)). The Court reviews “the ‘powers
inherent in a given office, ' rather than the actual
functions the occupant of that office performed.”
Americanos, 74 F.3d at 141 (citation omitted). The
Court can determine these powers as a matter of law
“without the aid of a finder of fact ‘when the
duties and responsibilities of a particular position are
clearly defined by law and regulations.'”
Opp, 630 F.3d at 621 (citation omitted).
Court begins with the municipal laws addressing the powers of
the Chief of Police. The Village's municipal code