United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Edmond E. Chang, United States District Judge.
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,
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. 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.
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.
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.
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.
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.)
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
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.
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,
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).
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
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).
Analysis A. Count One (Jekot)
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.
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
Constitutionally Protected Activity
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. 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.
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
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”
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). 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