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Carbajal v. City of Highland Park

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

March 2, 2017

RODNEY CARBAJAL, Plaintiff,
v.
CITY OF HIGHLAND PARK, ILLINOIS POLICE DEPARTMENT, an Illinois Municipality, and PAUL SHAFER, individually, and in his capacity as Police Chief of the City of Highland Park, Illinois, Defendants.

          MEMORANDUM OPINION AND ORDER

          Milton I. Shadur, Senior United States District Judge

         Rodney Carbajal ("Carbajal") has filed this action against the City of Highland Park, Illinois and its Chief of Police Paul Shafer, alleging that he has been the target of employment discrimination and retaliation. Both defendants have filed a motion to dismiss Counts III and IV of Carbajal's Complaint. For the reasons stated in this memorandum opinion and order, their motion is granted as to Carbajal's Count III Monell claim and denied as to his Count IV Illinois Whistleblower Act claim.

         Background

         Carbajal has been an officer in the Highland Park Police Department since 1995, and he was promoted to sergeant in 2008, a rank at which he is the only Hispanic officer (Complaint ¶ 8). Carbajal claims to have protested repeatedly throughout his time in the Police Department about what he believes to be discriminatory treatment and retaliation (Complaint ¶ 11). According to Carbajal, Shafer treated him differently from non-Hispanic officers: for instance, he asserts in particular that Shafer disciplined him for minor infractions as to which he did not discipline non-Hispanic officers (Complaint ¶ 11). Defendants admit that Carbajal raised the issue of discrimination on more than one occasion (Answer ¶ 11). Carbajal filed a charge with the Equal Employment Opportunity Commission ("EEOC") on January 31, 2014 and received a Notice of Right To Sue on January 28, 2015 (Complaint ¶ 12).

         Even more seriously, Carbajal contends that he was passed over by Shafer for two different promotions because of his national origin. General Order 119 states that promotions are given to the highest scorer on tests and interviews that are tailored to meet the Police Department's hiring needs, and Carbajal claims that Shafer routinely failed to comply with that Order (Complaint ¶ 18). In November 2014 Carbajal informed City Manager Ghida Neukrich that he was interested in applying for the soon-to-be-vacant Deputy Chief position, but ultimately he was not invited to interview for the job (Complaint ¶¶ 13, 19), and on December 15, 2014 he learned that Shafer had promoted Commander Timothy Wilinski, whose record Carbajal believes was inferior to his own (Complaint ¶¶ 13, 16). Carbajal was given the explanation that only a person who was already in a commander position could be promoted to Deputy Chief, even though that requirement was not listed on the job description (Complaint ¶ 14). In that respect Carbajal asserts that he often performed the duties of a commander and received a commander's pay regardless of his title (Complaint ¶ 15).

         After Wilinski was promoted to Deputy Chief, four of the duties normally assigned to the Deputy Chief were reassigned to Carbajal (Complaint ¶ 17). Carbajal then applied for the commander position that had been vacated by Wilinski's promotion (Complaint ¶ 20), but in May 2015 he learned that the position had been given to John Lowman (Complaint ¶¶ 21, 23). Once again Carbajal asserts that his record and accomplishments were superior to Lowman's, and he adds that Lowman enjoyed an unfair advantage because of his prior relationship with one of the interview panelists (Complaint ¶¶ 21, 22). Carbajal then filed a second charge with the EEOC on June 23, 2015, and he received a Notice of Right To Sue on that charge on May 27, 2016 (Complaint ¶ 24).

         Legal Standards

         Under Rule 12(b)(6) a party may move for dismissal for the "failure to state a claim upon which relief can be granted." Familiar Rule 12(b)(6) principles require the district court to accept as true all of Carbajal's well-pleaded factual allegations and to view those allegations in a light most reasonably favorable to him as the nonmovant (Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013)). But "legal conclusions or conclusory allegations that merely recite a claim's elements" are not entitled to any presumption of truth (Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012)). Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction are evaluated under the same standard (Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012).

         In the past decade the Supreme Court made an important change in the evaluation of Rule 12(b)(6) motions via what this Court regularly refers to as the "Twombly-Iqbal canon, " a usage drawn from Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as more finely tuned in Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), and from Ashcroft v. Iqbal, 556 U.S. 662 (2009)). That canon has introduced the concept of "plausibility" into the analysis, and in that respect our Court of Appeals has "interpreted Twombly and Iqbal to require the plaintiff to provid[e] some specific facts to support the legal claims asserted in the complaint" (McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (internal quotation marks omitted)). As McCauley, id. went on to reconfirm, claimants "must give enough details about the subject-matter of the case to present a story that holds together." Because the focus of Rule 12(b)(6) motions is on the pleadings, such motions "can be based only on the complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice" (Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)). But a nonmovant has more flexibility, for he, she or it "may elaborate on [its] factual allegations so long as the new elaborations are consistent with the pleadings" (id.).

         Count III: Monell Claim

         Defendants first assert that Carbajal's claim invoking Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) should be dismissed because his Complaint mistakenly cited 42 U.S.C. § 1981, [1]which does not create a private right of action, instead of section 1983, which does. Of course the fact that Carbajal failed to cite the correct statute in his complaint is of little consequence: All that Rule 8(a) requires of a complaint is (1) a short and plain statement of facts that could give rise to relief under federal law and (2) a demand for such relief (Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010)).[2]Hence defendants' predicate does not support a Rule 12(b)(6) dismissal.

         But there is a different and compelling reason to dismiss Carbajal's Monell claim: the proposition that a Monell claim really does not fit this type of case. Monell, 436 U.S. at 690 established that municipalities and other bodies of local government are "persons" within the meaning of Section 1983 and therefore may be sued directly if they have committed a constitutional tort through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." But Monell, id. at 691 explicitly rejected municipal liability bottomed only on a respondeat superior theory:

Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.

         In positive terms, rather than by simply negating a respondeat superior underpinning, cases such as Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 674 (7th Cir. 2009) restate the showing required of a plaintiff who wishes to hold a municipality directly liable under Monell:

A municipality, such as the Village, may be liable for a section 1983 violation if, among other things: (1) it has a permanent and well-settled municipal custom or practice that, although not authorized by official law or policy, was the moving force behind the plaintiff's constitutional injury; or (2) an individual with final policy-making ...

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