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Sroga v. Preckwinkle

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

January 24, 2017

Kevin Sroga, Plaintiff,
Toni Preckwinkle, Arnold Randal, Lisa Lee, Michelle Gage, Daniel Betts, John Jekot, and the Cook County Forest Preserve District, Defendants.


          Hon. Edmond E. Chang, United States District Judge.

         Kevin Sroga used to work as an Aquatic Center Manager at a recreational swimming facility run by the Cook County Forest Preserve District. R. 63, Second Am. Compl. ¶¶ 11, 30.[1] In August 2012, the District fired Sroga, which led him to bring this suit against County and District officials and employees, as well as the District itself. See Second Am. Compl. Sroga alleges that, when he tried to unionize Aquatic Center employees, the Defendants retaliated against him, in violation of the First Amendment and Illinois state law.[2] Id. The Defendants now move to dismiss Sroga's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for failure to state a claim and for lack of subject-matter jurisdiction. See R. 65, Defs.' Mot. to Dismiss. For the reasons discussed below, the Defendants' motion to dismiss is granted in part and denied in part.

         I. Background

         For purposes of this motion, the Court accepts as true the allegations in the Second Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Sroga began working for Defendant Cook County Forest Preserve District as a seasonal lifeguard in 2011. Second Am. Compl. ¶ 21. The next year, the District promoted Sroga to Aquatic Center Manager at one of the three aquatic facilities run by the District. Id. ¶¶ 11, 30. Around this time, the District also hired Defendants Michelle Gage, Daniel Betts, and John Jekot. Id. ¶¶ 16, 31. Betts and Jekot oversaw the District's Aquatic Centers and were Sroga's immediate supervisors, and Gage served as the District's Director of Human Resources. Id. ¶¶ 8-10, 31-32, 50.

         During the 2011 and 2012 aquatic seasons, the District enacted new rules and regulations for Aquatic Center employees. Second Am. Compl. ¶¶ 19, 33. The new rules limited the number of hours that Aquatic Center employees could work at the Aquatic Centers, as well as at any other job they held down. Id. ¶¶ 34, 37. Lifeguards also could have their shifts cut short or be placed “on call” under the new rules. Id. ¶ 35. Sroga alleges that these rules displeased many Aquatic Center employees and lowered employee morale. Id. ¶¶ 27, 39.

         In response to all of this, Sroga tried to organize Aquatic Center employees into a union. Second Am. Compl. ¶ 40. Sroga's efforts included speaking directly to Aquatic Center staff about unionizing, as well as to union representatives at the S.E.I.U. Local 73. Id. ¶¶ 41-42. Sroga also met with Defendant Lisa Lee, a Labor Relations Attorney for the District. Id. ¶¶ 44-45. During that meeting, Sroga told Lee about the issues plaguing the Aquatic Center-including “the District's failure to properly safeguard the facility, hiring of inadequate staffers, hiring of unqualified staffers, promoting and retention of staff members that should not be in a role of responsibility or performing supervisory functions, and the effect of the policies and procedures on employee morale and the District's Lifeguard Service.” Id. ¶ 47. Sroga also informed Lee that these issues had prompted him to try and organize Aquatic Center employees. Id. ¶ 49.

         According to Sroga, Lee immediately relayed her conversation with Sroga- including, “[o]n information and belief, ” Sroga's efforts to unionize-to Betts, Jekot, and Gage. Second Am. Compl. ¶¶ 50-51. The next morning, Jekot called Sroga to schedule a meeting for later that day. Id. ¶ 52. When Sroga asked what the meeting was about, Jekot responded: “We [Betts and Jekot] need to talk to you. … We have to have a meeting.” Id. ¶ 53. Sroga thereafter called Lee to see if she knew what was going on, but she denied any knowledge of the meeting. Id. ¶¶ 54-56. (Sroga (on information and belief) alleges that Lee did know that “the District's true intentions were to [fire] Sroga … .” Id. ¶ 57.)

         At the meeting, Jekot and Betts handed Sroga a termination letter. Second Am. Compl. ¶¶ 59-60. The letter did not state the reason(s) for Sroga's firing. Id. ¶ 65. (Neither did Sroga receive any other documents at the time that may have helped explain his termination. Id.) When Sroga asked why he was fired, Betts told him, “We don't have to give you any reasons.” Id. ¶ 63; see also Id. ¶ 66 (“Sroga was not given any reasons for his discharge.”).

         Several weeks later, Sroga showed-up unannounced at the District's General Headquarters. Second Am. Compl. ¶ 77. He wanted access to his personnel file so that he could find out the reasons for the firing. Id. ¶ 78. Sroga alleges that he was not allowed to see his personnel file and was told that he would have to make an appointment with the Legal Department to do so, which he eventually did. Id. ¶¶ 80-81. Though the file contained “purported deficiencies in [his] work performance, ” Sroga alleges that no one had ever discussed those deficiencies with him before the firing. Id. ¶ 82. (Indeed, the District never took disciplinary action against Sroga during his tenure as an Aquatic Center employee. Id. ¶¶ 26, 76.) He also alleges that those deficiencies were pretextual, and that Jekot's anti-union animus was the driving force behind his termination. Id. ¶ 83.

         Based on these allegations, Sroga brings nine counts against the Defendants in the Second Amended Complaint: (1) a Section 1983 claim based on violating the First Amendment's freedom-of-association clause against Jekot (Count One); (2) supervisory-liability claims based on the “cat's paw” doctrine against Betts and Gage (Counts Two and Three, respectively); (3) a municipal liability claim based on the “cat's paw” doctrine against the District (Count Four); (4) a freedom-of-association claim based on Article I, Section 5 of the Illinois Constitution against Jekot, Betts, and Gage (Count Five); (5) an Illinois common law retaliatory discharge claim against the District (Count Six); (6) an Illinois common law intentional interference with prospective economic advantage claim against Jekot (Count Seven); (7) a respondeat superior claim under Illinois common law against the District (Count Eight); and (8) an indemnification claim under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/9-102 (Count Nine). The Defendants now move to dismiss Counts Five and Six for lack of subject matter jurisdiction and the remaining counts for failure to state a claim. See Defs.' Mot. to Dismiss; R. 66, Defs.' Br.

         II. Standard

         The Defendants bring their motion under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion tests whether the Court has subject-matter jurisdiction, Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999), while a Rule 12(b)(6) motion tests the sufficiency of the complaint, Hallinan, 570 F.3d at 820; Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). When reviewing a motion to dismiss under either rule, the Court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).

         Under Rule 8(a)(2), a complaint generally need only include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal quotation marks and citation omitted). These allegations “must be enough to raise a right to relief above the speculative level, ” id., and must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The allegations entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678-79.

         In order to survive a Rule 12(b)(1) motion, the plaintiff must establish that the district court has jurisdiction over an action. United Phosphorous, 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). “If subject matter jurisdiction is not evident on the face of the complaint, [then] the … Rule 12(b)(1) [motion is] analyzed [like] any other motion to dismiss, by assuming for the purposes of the motion that the allegations in the complaint are true.” United Phosphorus, 322 F.3d at 946. But “if the complaint is formally sufficient but the contention is there that there is in fact no subject matter jurisdiction, [then] the movant may use affidavits and other material to support the motion.” Id. (emphasis in original).

         III. Analysis A. Count One (Jekot)

         Count One alleges that Jekot violated the First and Fourteenth Amendments by firing Sroga for trying to union-organize the Aquatic Center staff. Second Am. Compl. ¶¶ 89-111. In response, Jekot contends that Count One should be dismissed, asserting that “[t]here is no factual substantiation for the conclusory statement that Jekot terminated [Sroga] because of anti-union animus.” Defs.' Br. at 6.

         To make out a prima facie case for First Amendment retaliation, Sroga must establish that: (1) he was engaged in constitutionally protected activities; (2) he suffered a deprivation likely to deter associational activity; and (3) the First Amendment activity was a motivating factor in the employer's decision. Redd v. Nolan, 663 F.3d 287, 294 (7th Cir. 2011); Greene v. Doruff, 660 F.3d 975, 977 (7th Cir. 2011); Campion, Barrow & Assocs., Inc. v. City of Springfield, Ill., 559 F.3d 765, 768 (7th Cir. 2009). “Although making a ‘prima facie case' is an evidentiary requirement and not a pleading standard, … this requirement lends guidance to the Court's determination whether [a plaintiff] ha[s] sufficiently alleged [his] First Amendment retaliation claim … .” Schmidt v. Vill. of Glenwood, 2015 WL 3918952, at *3 (N.D Ill. June 24, 2015). The parties do not dispute the second element- indeed, neither party even addresses it-so only the first and third elements are at issue for purposes of deciding this motion to dismiss.[3]

         1. Constitutionally Protected Activity

         To survive the motion to dismiss, Sroga must first allege facts establishing that his union-related activity falls within the purview of the First Amendment. See Williams v. Seniff, 342 F.3d 774, 782 (7th Cir. 2003); Kasak v. Vill. of Bedford Park, 514 F.Supp.2d 1071, 1076 (N.D. Ill. 2007). Courts apply the Connick-Pickering test to determine whether an employee's associational activity is constitutionally protected.[4] Gregorich v. Lund, 54 F.3d 410, 414 (7th Cir. 1995) (discussing Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983)); see also, e.g., Wright v. Vill. of Franklin Park, 2008 WL 820560, at *19 (N.D. Ill. Mar. 25, 2008) (applying Connick-Pickering test to determine whether the plaintiff engaged in any protected expressive activity); Kasak, 514 F.Supp.2d at 1076 (same). Under that test, an employee's associational activity will only receive protection if it was “on a matter of public concern.” Gregorich, 54 F.3d at 414 (citations omitted); see also Connick, 461 U.S. at 141-42; Pickering, 391 U.S. at 568-70. Associational activity is of public concern so long as it relates to “any matter of political, social, or other concern to the community.” Kuchenreuther v. City of Milwaukee, 221 F.3d 967, 973 (7th Cir. 2000) (citation omitted). Whether this standard is met depends on “the content, form, and context” of the activity. Connick, 461 U.S. at 147-48. The second element of the Connick-Pickering test requires courts to determine whether the employee's interest in the activity “outweigh[s] the State's interest in promoting the efficiency of public services.” Gregorich, 54 F.3d at 414 (citations omitted); see also Pickering, 391 U.S. at 568-70; Connick, 461 U.S. at 150-51. If so, then the employee's associational activity will receive First Amendment protection.

         Here, the allegations in the Second Amended Complaint are sufficient to establish that Sroga's union-organizing activity constitutes freedom of association protected by the First Amendment. Courts in this Circuit routinely hold that union activity touches upon matters of public concern, particularly if the employee's motivation for doing so was of public concern, and not for some purely private interest. See, e.g., Gregorich, 54 F.3d at 416 (holding that the plaintiff's “attempt to obtain representation for all research attorneys in the Fourth district went beyond his self-interest and made his activity subject to the requirements of Pickering and Connick”); Wright, 2008 WL 820560, at *20 (“[T]o the extent that Wright's association with the Union was intended to further the union's advocacy of issues such as these, that association would address a matter of public concern as well.”); Kasak, 514 F.Supp.2d at 1077 (“Plaintiff's participation in the [Village Collective Bargaining Unit's] formation and his representation of the Unit Members' interests exceeded his self-interest and his activity touched upon matters of public concern.”). So too here. Sroga has alleged that he sought to unionize the Aquatic Center staff in response to new policies implemented by the District that limited the number of hours employees could work. Second Am. Compl. ¶¶ 19, 33-34, 37, 39-40. The Court can also infer that the workplace issues that Sroga discussed with Lee-“the District's failure to properly safeguard the facility, hiring of inadequate staffers, hiring of unqualified staffers, promoting and retention of staff members that should not be in a role of responsibility or performing supervisory functions, and the effect of the policies and procedures on employee morale and the District's Lifeguard Services, ” id. ¶ 47-motivated Sroga's union-organizing efforts. Not only did Sroga listen to (and then convey) Aquatic Center employees' concerns, id. ¶ 41, he specifically spoke with union representatives and Defendant Lee (a Labor Relations Attorney for the District) on behalf of those employees, id. ¶ 42. These allegations are enough to establish that Sroga sought to obtain union representation to effectuate a change in the District's policies for the benefit of the Aquatic Center staff. See Gregorich, 54 F.3d at 416. Sroga's alleged union-organizing activity meets the public concern requirement.

         The union-organizing activity also satisfies the Pickering balancing test- that is, Sroga's interest in promoting unionization outweighs (so far as the complaint shows) the disruptive impact that the activity had on the District's delivery of services to the public and on the efficacy of the workplace. See Pickering, 391 U.S. at 568-70. To be sure, the government has an interest in “avoid[ing] potential disruption in light of any close working relationships essential to administering public responsibilities, and the ‘practical reality of governance that those with policy-making responsibilities must have faithful agents.'” Kasak, 514 F.Supp.2d at 1078 (quoting Gregorich, 54 F.3d at 417 (quotations omitted)). So the fact that Sroga was an Aquatic Center manager attempting to obtain union representation for employees could indeed impact the extent to which Sroga had a constitutional right to promote union organization for those employees. See Id. But there are, at the dismissal-motion stage, too many unanswered factual questions to conclusively resolve the Pickering balance. For example, what is the extent of Sroga's supervisory authority over employees (he himself had at least two supervisors, and probably more layers of supervision above that)? What disruptive effect (if any) would his union-organizing have on his own workplace relationships with his supervisors? These are questions for which discovery is needed, and then the defense may, depending on what is uncovered, renew the argument at the summary judgment stage. For now, Sroga has plausibly alleged that his unionization effort qualifies for First Amendment protection. See Cunningham v. Vill. of Mount Prospect, 2002 WL 31628208, at *5 (N.D. Ill. Nov. 19, 2002) (observing that “[t]he First Amendment protects the right to advocate, either individually or through association, on behalf of a union. As a result, for purposes of this motion to dismiss, Cunningham's speech and association can only be concluded to be related to matters of public concern and protected by the First Amendment” (citation omitted)).

         2. Motivating Factor

         Next to consider is whether the Second Amended Complaint sufficiently alleges that Sroga's constitutionally protected activity was a motivating factor for his firing. Although Sroga must sufficiently prove (at the trial stage) that his union-organizing was a “substantial” motive for his firing, he need not prove that it was the sole factor. Mount Healthy City Sch. Dist. Bd. v. Doyle, 429 U.S. 274, 287 (1977); Greene v. Doruff, 660 F.3d 975, 978 (7th Cir. 2011); Spiegla v. Hull, 371 F.3d 928, 941-42 (7th Cir. 2004).[5] Timing is one consideration when determining whether an employer had a retaliatory motive: “When an adverse employment action follows on the close heels of protected expression and the plaintiff can show the person who decided to impose the adverse action knew of the protected conduct, the causation element of the prima facie case is typically satisfied.” Lalvani v. Cook Cty., Ill., 269 F.3d 785, 790 (7th Cir. 2001). An inference of causation may even be drawn solely on the basis of suspicious timing where “no more than a few days … elapse ...

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