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Mack v. City of Chicago

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

March 10, 2017

MARVA MACK, Plaintiff,


          Gary Feinerman Judge

         Marva 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.


         In 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).

         Mack 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.

         On or 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.

         May, 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.

         On 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.

         In 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.

         Upon 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 ¶ 30.

         Defendants (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.

         At a 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.

         Mack 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 ...

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