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Ware v. Lake County Sheriffs Office

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

March 8, 2017

LANCE WARE, Plaintiff,


          Joan B. Gottschall United States District Judge.

         This suit stems from an incident defendant rightly calls tragic in its briefing. A man in police custody suffered injuries that ultimately proved fatal. Plaintiff Lance Ware (“Ware”), a 54-year-old African American man (1st Am. Compl. ¶8), brings employment discrimination and retaliation claims under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e et seq., against his employer, the Lake County Sheriff's Office (“Sheriff” or “defendant”). Ware alleges that defendant meted out discipline to command officers involved in the incident in a discriminatory fashion and retaliated against him after he filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

         Before the court is the defendant's motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss Ware's amended complaint for failure to state a claim upon which relief can be granted. For the reasons that follow, the motion is denied.

         I. RULE 12(b)(6) STANDARD

         To survive a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)); Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir. 2016) (quoting Twombly, supra). A complaint satisfies this standard when its factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see also Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) (“[T]he complaint taken as a whole must establish a nonnegligible probability that the claim is valid, though it need not be so great a probability as such terms as ‘preponderance of the evidence' connote.”); Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subject-matter of the case to present a story that holds together.”). When deciding a motion to dismiss under Rule 12(b)(6), the court takes all facts alleged by the plaintiff as true and draws all reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations that merely recite the elements of a claim are not entitled to this presumption of truth. Katz-Crank, 843 F.3d at 646 (citing Iqbal, 556 U.S. at 662, 663); Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).


         Ware began working for the defendant as a “Correctional Officer Sheriff” on November 9, 1988). (¶ 13.) He was promoted in 1996 to corporal, a rank that defendant no longer uses, and again to sergeant in 1997. (¶¶ 15-16.) He received “meets expectations” (or the “functional equivalent”) on performance reviews from his hiring date through, but not including, August 2014. (¶ 18.)

         Eugene Gruber (“Gruber”), a Caucasian male, was arrested and brought to the Lake County jail at approximately 9:00 a.m. on October 31, 2011. (¶ 21.) Ware was assigned to “floor command” for the day shift (6:00 a.m. to 3:00 p.m.) when Gruber arrived. (¶ 26.) “Gruber became unruly, ” and the Correctional Response Team (“Tactical Unit”) took control of the situation. (¶ 22.) “Whenever the Tactical Unit responds to a situation, the standard chain of command is interrupted. The Tactical Unit commands control of the situation and its officers are not subject to the normal chain of command.”[1] (¶ 23.) Instead, correction staff “stand down.” (¶ 24.) As a result, Ware had a limited role in the incident; he “was limited to observing two Tactical Unit officers bringing Gruber out of the shower, leaving the shower room to go to the property area to find dry prison clothing for Gruber, and returning to the shower area to give the clothing to the Tactical Unit officers item by item” (¶ 27) and following the tactical unit officers as they carried Gruber toward the cells in the booking area (¶ 28).

         “While Gruber was under their control, Tactical Unit officers caused serious injury to him, resulting in his death several months later.” (¶ 25.) Gruber's family sued, and Lake County and the defendant settled for approximately $1.9 million in January 2014. (See ¶¶ 31-32.) On May 27, 2014, Defendant demoted Ware to correctional officer after holding a prediscipline meeting five days earlier. (¶ 35.) Before May 2015, defendant disciplined only two command officers, [2] Ware and Sergeant Eweisi (“Eweisi”), an African-American woman, for the incident. (See ¶¶ 30, 37.) Defendant did not discipline any other command officer for the Gruber incident before May 2015, including any member of the all-Caucasian Tactical Unit. (See ¶ 36.)

         Ware filed a charge of discrimination with the EEOC challenging his demotion on June 24, 2014. (1st Am. Compl. ¶ 39; see also Id. Ex. A.) After defendant received notice of the charge, Ware received his first ever-inclusive of the years following the Gruber incident- performance review rating him below “meets expectations” on August 31, 2014. (See 1st Am. Compl. ¶ 40, 41.) Ware objected in writing, stating, among other things, that he believed the review was retaliatory. (Id. ¶ 40.) Ware amended his EEOC charge on December 30, 2014, to add retaliation allegations premised on his negative performance review. (See Id. ¶¶ 6, 40.) Approximately six months later, in May 2015, defendant fired Dale Novarro (“Novarro”), a Caucasian corrections sergeant who was on duty during the midnight shift (10:00 p.m. to 6:00 a.m.) on the night before the Gruber incident. (¶¶ 42-43.) Ware characterizes Novarro's discharge as a “remedial termination.” (1st Am. Compl. 6.)


         Defendant asks the court to consider two exhibits attached to its memorandum in support of its motion to dismiss. (ECF Nos. 26-1, 26-2.) The first, personnel order P14-024 dated May 27, 2014, apparently memorializes the sheriff's decision to demote Ware. (See ECF No. 26-1 at 1.) The order states that Ware “failed to properly supervise” his subordinates on the date in question and made false statements during the ensuing investigation. (See id.) Defendant represents that Ware grieved that decision. Its second exhibit purports to be an arbitrator's decision on Ware's grievance (as well as grievances of other noncommand officers disciplined in connection with the same incident) setting forth detailed findings of fact and concluding that just cause existed for Ware's demotion. (See ECF No. 26-2 at 4-8, 33-47.)

         Considering “matters outside the pleadings” on a Rule 12(b)(6) motion ordinarily converts it to a motion for summary judgment. Fed.R.Civ.P. 12(d). According to defendant, the court can consider the documents attached to its motion to dismiss under the incorporation doctrine and by taking judicial notice of them without converting the motion to a motion for summary judgment. Neither doctrine applies here, however.

         A. No Incorporation Because the Documents Are Not Central ...

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