United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Mack brought this suit against the City of Chicago, Robert
May, Cesar Pinto, Angela Manning, and William McKenna,
alleging claims under 42 U.S.C. § 1983, the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., and Illinois law. Doc. 7.
Defendants have moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Doc. 20. The motion is granted in part
and denied in part.
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “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, ” along with
additional facts set forth in Mack's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013). The facts are set forth as favorably to Mack as
those materials allow. See Pierce v. Zoetis, 818
F.3d 274, 277 (7th Cir. 2016). In setting forth those facts
at the pleading stage, the court does not vouch for their
accuracy. See Jay E. Hayden Found. v. First Neighbor
Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).
was employed by the City of Chicago's Department of
Aviation. Doc. 7 at ¶ 7. After serving as an
administrative assistant for twenty-one years, she was
appointed to a Timekeeper IV position. Ibid. On or
about December 5, 2014, Mack received a disciplinary write-up
after Pinto, her supervisor, accused her of failing to submit
time sheets for an Assistant Commissioner, even though the
Assistant Commissioner was at fault. Id. at ¶
9. According to Mack, this was the first of a series of
“fabricated” write-ups falsely blaming her for
other employees' missing time sheets. Id. at
¶ 10. In January 2015, Mack contacted the Office of the
Inspector General to complain about those write-ups.
Id. at ¶ 11.
about January 12, William Cruise approached Mack about edits
submitted for the time sheets of LaToya Marks, whom he
supervised. Id. at ¶ 12. The edits purported to
reduce the number of vacation and sick days that Marks had
taken, which would have qualified her for Family and Medical
Leave Act (“FMLA”) leave. Ibid. Cruise
had not approved the edits and asked Mack to reject them for
that reason. Id. at ¶ 13.
the Department's Director of Administration, then
directed Mack to approve the edits to Marks's time
sheets. Id. at ¶ 14. Mack refused, believing
that doing so would illegally qualify Marks for FMLA leave.
Id. at ¶ 15. May demanded that Mack give him
Marks's original time sheets, and Mack refused, believing
that May would make edits that would illegally provide Marks
with compensation and benefits to which she was not entitled.
Id. at ¶ 16. On or about January 15, Mack
learned May was still trying to edit Marks's time sheets.
Id. at ¶ 17. At this point, Mack notified the
Foreman of Custodians, Robert Kelley, of her concerns.
Id. at ¶ 18. At some point thereafter, Marks
was arrested and charged with falsely impersonating a peace
officer. Id. at ¶ 19. After Marks's arrest,
for which she was not disciplined, May asked Pinto to make
the edits to Marks's time sheets. Ibid. Pinto
complied. Id. at ¶ 20.
March 25, a pre-disciplinary hearing was held regarding
Mack's refusal to edit Marks's time sheets.
Id. at ¶ 21. During the hearing, Mack handed
over Marks's original time sheets. Ibid. Pinto
made copies and returned the originals to Mack, who placed
them in a locked desk drawer. Ibid. Mack was given a
five-day suspension, to be served April 13-17, for
withholding documents from a department official.
Id. at ¶ 22.
early April, Mack received a “Disciplinary Action
Report” from Pinto. Id. at ¶ 23. The
report cited “entries made into … [Marks's]
CATA record which appear to have no supporting documentation,
” as well as Mack's allegedly removing documents
from city property, lying to May about whether Mack had those
documents, and withholding documents from a department
official. Ibid. (brackets in original). Believing
that she had already been disciplined for those things, Mack
asked Manning, the Managing Deputy Commissioner, why the
additional discipline was being imposed. Id. at
¶ 24. In response, Manning asked Mack for the original
time sheets that Mack had produced at the March 25 hearing.
Ibid. Mack attempted to retrieve them from her
locked desk, but was unable to do so because she had left her
keys at home. Id. at ¶ 25. On April 22, Manning
and May again asked Mack to turn over Marks's original
time sheets, but fearing that May would make unauthorized
changes, she resisted. Id. at ¶¶ 26-27.
arriving at work on April 23, Mack found that someone had
broken into her desk and taken union files, write-ups, and
Marks's original time sheets. Id. at ¶ 28.
Mack reported the theft to the Chicago Police Department.
Ibid. Officer McKenna, a Chicago police officer,
wrote a report containing what Mack alleges to be quotations
falsely attributed to her. Id. at ¶ 29. McKenna
and other officers also interviewed May, who made false
statements that found their way into McKenna's report and
that were falsely attributed to Mack. Id. at ¶
(the complaint does not identify which defendant) then
implemented various changes at Mack's workplace to
“isolate and silence” her. Id. at ¶
31. Those changes included moving Mack to empty workstations
without explanation and sending a company-wide email
suggesting that she would be replaced on July 1.
Ibid. On August 3, Mack was placed on five days of
administrative leave pending discharge due to “erratic
and agressive [sic] behavior.” Id. at ¶
32 (brackets in original). On August 11, Department of
Aviation Commissioner Ginger Evans terminated Mack for
providing false information to the police in connection with
the events of April 23, even though Mack never provided such
information. Id. at ¶ 33.
December 10 arbitration hearing-presumably conducted pursuant
to the collective bargaining agreement between the City and
Mack's union, the American Federation of State, County,
and Municipal Employees Council 31 (“AFSCME”),
Doc. 29-1, to determine whether there was just cause for her
termination-Officer McKenna falsely confirmed the portion of
his police report that falsely attributed quotations to Mack.
Doc. 7 at ¶ 34; see Doc. 29-2 (transcript of
the hearing). On December 15, AFSCME and the City entered
into a settlement agreement concerning Mack's dismissal.
Doc. 26-1 at ¶¶ 1-2. The settlement agreement
withdrew AFSCME's request to arbitrate Mack's
dismissal, gave Mack the opportunity to resign in lieu of
being terminated, and provided that the City would not
contest Mack's efforts to obtain unemployment
compensation. Doc. 21-1.
was not made aware of any settlement discussions between
AFSCME and the City, and she did not authorize AFSCME to sign
a settlement agreement on her behalf or to waive any of her
legal claims. Doc. 26-1 at ¶ 2. Mack was informed of the
agreement only after it was signed by AFSCME and the City;
she rejected the agreement and refused to ...