United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
R Wood United States District Judge.
case concerns allegations of various workplace hostilities in
the City of Chicago's Bureau of Forestry. Plaintiff
Joseph Rinella, a tree-trimmer employed by Defendant City of
Chicago (“City”), alleges that his supervisor,
Defendant Charles Wagner, subjected him to verbal and
psychological abuse and improper employment-related
retaliation. Accordingly, Rinella has sued Wagner pursuant to
42 U.S.C. § 1983 for allegedly retaliating against him
for exercising his First Amendment rights and for violations
of the Equal Protection Clause. Rinella also asserts claims
against the City and Wagner under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., and 42 U.S.C. § 1981
(“Section 1981”). Rinella additionally alleges
that the City violated the consent decree it entered into in
the litigation Shakman v. Democratic Organization of Cook
County, Case No. 69-cv-02145 (N.D. Ill.). Finally,
Rinella brings Illinois state law claims against the City for
retaliation and against Wagner for intentional infliction of
emotional distress. Before the Court is Defendants'
motion to dismiss all of Rinella's claims under Federal
Rule of Civil Procedure 12(b)(6). For reasons discussed
below, the Court grants Defendants' motion in part and
denies it in part.
Joseph Rinella is a tree trimmer working in the City's
Department of Streets and Sanitation, Bureau of Forestry
(“Forestry”). (Compl. ¶¶ 8, 50, Dkt.
No. 1.) Rinella has been with Forestry since 1996 and for
years worked under several supervisors without incident.
(Id. ¶¶ 5, 11.) Then, in early 2014,
Wagner became “General Superintendent” in
Forestry, which was a supervisory role over Rinella.
(Id. ¶¶ 6, 12.) Since then, according to
Rinella, “Wagner has been verbally and psychologically
abusive towards [him].” (Id. ¶ 14.)
Specifically, Rinella alleges that Wagner used profanity,
engaged in “harassment and bullying, ”
“yelled, screamed, and cursed at [Rinella], ” and
“threatened to send [Rinella] to Gary, Indiana.”
(Id. ¶¶ 16-19, 21, 23-25.) Rinella also
claims that on several occasions Wagner called him a
“rat, ” complaining about the fact that Rinella
reported occurrences to his union. (Id. ¶ 16.)
August 24, 2015, Rinella complained to the City's
Department of Human Resources that Wagner had violated the
City's policy against violence in the workplace.
(Id. ¶ 27.) The Department of Human Resources
informed him that it could not open an investigation because
Wagner's conduct did not constitute violence in the
workplace per the City's policy. (Id. ¶
28.) On September 12, 2015, Rinella “submitted a
grievance to [the City] concerning Wagner's hostile and
abusive working environment.” (Id.
¶¶ 29-30.) In that grievance, Rinella stated that
he “had been harassed by Wagner due in large part to
[his] affiliation with union Laborer's Local 1001 and
because of prior complaints regarding Wagner.”
(Id. ¶ 30.) Rinella also noted that Wagner had
mistreated other employees and that the mistreatment had led
two of the other employees to retire early. (Id.
¶ 31.) This grievance was also denied by the City.
(Id. ¶ 33.)
alleges that he then suffered retaliation, specifically in
the form of his failure to obtain promotions within Forestry,
due to his filing of these complaints. Beginning in September
2015, seven jobs-three supervisor positions and four training
agent positions-opened up in Forestry. (Id. ¶
35.) The application process for the training agent positions
consisted of three parts: a written test, a hands-on test,
and an interview. (Id. ¶ 39.) Rinella passed
the written test and the hands-on test, but he does not
believe that he passed the verbal interview. (Id.
¶¶ 41-42.) According to Rinella, Wagner had
“effective” control over the hiring process and
refused to hire Rinella because of the complaints Rinella
filed against Wagner and Rinella's “political
affiliations.” (Id. ¶ 43.) Rinella
further alleges that he should have been hired as a training
agent based on his qualifications and seniority.
(Id. ¶ 51.)
addition, Rinella states that the application process for the
supervisor position was composed of an essay question and an
interview. (Id. ¶ 40.) But Rinella provides no
detail about his application for the supervisor positions;
indeed, he does not even allege that he actually applied for
these positions. He does allege, however, that Wagner picked
friends for these supervisor roles over more qualified
individuals. (Id. ¶ 74.)
Rule of Civil Procedure 8(a) requires that a complaint
contain a short plain statement of the claim showing that the
pleader is entitled to relief. Fed.R.Civ.P. 8(a). To survive
a Rule 12(b)(6) motion, the short plain statement must
overcome two hurdles. First, the complaint's factual
allegations must be enough to give the defendant fair notice
of the claim and the grounds upon which it rests. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second,
the complaint must contain sufficient allegations based on
more than speculation to state a claim for relief that is
plausible on its face. Id. This pleading standard
does not necessarily require a complaint to contain
“detailed factual allegations.” Id.
(citing Sanjuan v. Am. Bd. of Psychiatry and Neurology,
Inc., 40 F.3d 247, 251 (7th Cir. 1994)). Rather,
“[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).
mentioned above, Rinella brings claims for First Amendment
retaliation against Wagner (Count I); violations of the
Shakman consent decree against Wagner and the City
(Count III); and unlawful retaliation under Title VII and
Section 1981 against Wagner and the City (Counts IV and V,
respectively). Rinella also brings Illinois state law claims
for unlawful retaliation under the Illinois Whistleblower
Act, 740 ILCS 174/10, against the City (Count VI);
intentional infliction of emotional distress against Wagner
(Count VII); and indemnity and respondeat superior
liability against the City (Counts VIII and IX,
respectively). The Court addresses these claims in turn.
First Amendment Retaliation Claim
First Amendment protects freedom of speech and expressive
conduct, and generally prevents the government from
proscribing such activities. RAV v. City of St. Paul,
Minn., 505 U.S. 377, 382 (1992). “The Supreme
Court has made clear that public employees do not surrender
all of their First Amendment rights by reason of their
employment. Rather, the First Amendment protects a public
employee's right, in certain circumstances, to speak as a
citizen addressing matters of public concern.”
Morales v. Jones, 494 F.3d 590, 595 (7th Cir. 2007).
“In such circumstances, an employer may not retaliate
against an employee for engaging in protected speech.”
Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 509
(7th Cir. 2007). To prevail on a claim of retaliation under
the First Amendment, a plaintiff must establish that: (1) she
engaged in a protected activity; (2) she suffered a
deprivation likely to prevent future protected activities;
and (3) there was a causal connection between the two.
See Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir.
here contend that Rinella's claim must be dismissed
because he did not engage in any activity protected by the
First Amendment. To show that his public-employee speech is
protected, “the employee must establish that [he] spoke
as a citizen on a matter of public concern.” Kubiak
v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016)
(citing Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)). “[T]he threshold inquiry is whether the
employee was speaking as a citizen; only then do we inquire
into the content of the speech [to determine if the speech
related to a matter of public concern].” Spiegla v.
Hull, 481 F.3d 961, 965 (7th Cir. 2007) (citation
omitted). “[P]ublic employees speaking ‘pursuant
to their official duties' are speaking as employees, not
citizens, and thus are not protected by the First Amendment
regardless of the content of their speech.”
Id. (citing Garcetti, 547 U.S. at 410).
“The Supreme Court has defined ‘public
concern' to mean ‘legitimate news interest, '
or ‘a subject of general interest and of value and
concern to the public at the time of publication.'”
Kubiak, 810 F.3d at 482-83 (internal citations
omitted). “Whether an employee's speech addresses a
matter of public concern must be determined by the content,
form, and context of a given statement . . . .”
Id. at 483 (citing Connick v. Myers, 461
U.S. 138, 147-48 (1983)).
argue that Rinella's speech was not protected by the
First Amendment because he was speaking in his capacity as a
public employee and not a private citizen. But Rinella
alleges that one of the reasons Wagner harassed him and
refused to promote him was due to his affiliation with his
union and participation in union activities. (Compl.
¶¶ 16, 30, 75, Dkt. No. 1.) In particular, Rinella
claims that Wagner frequently and derogatorily voiced his
objection to the fact that Rinella reported to his union what
was going on at Forestry. (Id. ¶ 16.) When
Rinella was communicating with his union about his workplace,
he was speaking as a private citizen. Swetlik v.
Crawford, 738 F.3d 818, 826 (7th Cir. 2013) (holding
that statements “made in  capacity as a union
member” are not part of official duties and thus made
in capacity as private citizen); see also Shefcik v.
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