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Sailsbery v. Village of Sauk Village

United States District Court, N.D. Illinois, Eastern Division

September 8, 2016

VILLAGE OF SAUK VILLAGE, an Illinois Municipality; MAYOR DAVID HANKS, individually; J.W. FAIRMAN, individually and in his official capacity as Public Safety Director; FAIRMAN CONSULTANTS, LTD. an Illinois Corporation, Defendants.


          SARA L. ELLIS United States District Judge.

         Passed 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[1] and 1983. The Village [27], Mayor Hanks [28], and Fairman [24] each move to dismiss Sailsbery's claims against them.[2] 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.


         Sailsbery 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.

         After 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 Police.

         In 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.

         Sailsbery 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.

         Mayor 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.


         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. Retaliatory Failure to Promote (Count I)

         Sailsbery 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).

         The 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.

         First, “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.

         The 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.

         The 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 appointed).[4]

         A 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).

         The Court begins with the municipal laws addressing the powers of the Chief of Police. The Village's municipal code ...

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