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Gnutek v. Illinois Gaming Board

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

June 21, 2017

John Gnutek, Plaintiff,
Illinois Gaming Board; Mark Ostrowski; Karen Weathers; Isaiah D. Vega, Vincent Pattara; and Clinton C. Cobb, Defendants.


          Honorable Thomas M. Durkin United States District Judge.

         Plaintiff John Gnutek alleges that Defendants retaliated against him by suspending him and then terminating his employment as a Special Revenue Agent for the Illinois Gaming Board (“IGB”), [1] in violation of Title VII, 42 U.S.C. § 2000e et seq. (Count I), the First Amendment of the United States Constitution (Count II), and the Whistle Blower Protection of the Illinois State Officials and Employees Ethics Act (the “Ethics Act”), 5 ILCS 430/15-10 et seq. (Count III). The IGB and Mark Ostrowski, Karen Weathers, Isaiah D. Vega, Vincent Pattara, and Clinton C. Cobb (the “Individual Defendants”), have filed a motion to dismiss, R. 16. Defendants' motion is granted in part and denied in part as follows.

         Legal Standard

         A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.


         A. Retaliation Claim Against The IGB (Count I)

         Count I of the complaint alleges a claim against the IGB for retaliation under Title VII. The IGB argues that Count I should be dismissed as implausible because of the purported nine year period between the alleged protected activity (the filing of past lawsuits against the IGB and other state officials) and the alleged retaliatory conduct (the suspension and ultimate termination of Gnutek's employment with the IGB).

         The Seventh Circuit has “said consistently and repeatedly in retaliation cases stretching back more than a decade[ ] [that] a long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation.” Malin v. Hospira, Inc., 762 F.3d 552, 560 (7th Cir. 2014) (emphasis added) (citing cases). “[I]f the time interval standing alone is long enough to weaken an inference of retaliation, the plaintiff is entitled to rely on other circumstantial evidence to support h[is] claim.” Id. For purposes of a motion to dismiss, moreover, the plaintiff is not required to allege this additional circumstantial evidence so long as the facts alleged are sufficient to make the plaintiff's retaliation claim plausible. See Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (noting that the district court applied the wrong standard on a motion to dismiss when it “faulted [the plaintiff] for not providing ‘evidence' in support of her [retaliation] claims” and when it “relied on summary judgment decisions that addressed not the content of complaints but the evidence needed to take a claim to a jury”).

         The IGB is correct that the Seventh Circuit has said that dismissal under Rule 12(b)(6) may be appropriate where an alleged retaliation claim is “so bare-bones that a lengthy time period between the protected activity and the alleged retaliation will make any causal connection between the two implausible.” Id. at 828 (“If the best a plaintiff can do is allege that he engaged in protected activity and then, years later, the employer took an adverse action against him, the claim may not be permitted to proceed.”). But the Seventh Circuit also explained that “no bright-line timing rule can be used to decide whether a retaliation claim is plausible, ” and that “[a] mechanistically applied time frame would ill serve [a court's] obligation to be faithful to the legislative purpose of Title VII.” Id. at 828 (internal quotation marks and citation omitted). Thus, in the usual case, “[t]he facts and circumstances . . . must be evaluated to determine whether an interval is too long to permit a jury to determine rationally that an adverse employment action is linked to an employee's earlier complaint.” Id. (internal quotation marks and citation omitted).

         Here, Gnutek has alleged a history of acrimonious litigation between the parties, involving both state and federal lawsuits and at least one appeal to the Seventh Circuit, and Gnutek's allegations “must be viewed through that lens.” Id. This litigation history adds plausibility to Gnutek's retaliation claim, as a rational factfinder might conclude that the IGB had a long memory and was merely waiting for the right time to drop the ax on Gnutek. The IGB cites Carmody v. Board of Trustees of the University of Illinois, 747 F.3d 470 (7th Cir. 2014), as an example of a retaliation case where dismissal at the pleading stage was found to be appropriate. But in Carmody, the plaintiff alleged he was fired for reporting “that two professors were using a popcorn machine on university property as part of ‘a private consulting deal' of some sort. . . . [The plaintiff's] only reason for believing that his report about the popcorn led to his firing seem[ed] to be that the popcorn incident occurred and then later he was fired.” Id. at 480. The Seventh Circuit agreed with the district court's assessment that “the three years separating the popcorn incident and his firing made his claim implausible . . ., at least where [the plaintiff] ha[d] given [the court] no potential explanation for the long delay between his report and the alleged retaliation.” Id. The litigation history between the parties alleged in this case-involving allegations of misconduct made by Gnutek against state employees at the highest level of government, including former Illinois Governor Rod Blagojevich's Chief of Staff and campaign manager and the Executive Director of the Illinois Asphalt Pavement Association (who raised a significant amount of money for Blagojevich), both of whom were indicted by a federal grand jury in April 2009 with Blagojevich, see Gnutek v. Ill. Gaming Bd., No. 08 C 5516, 2011 WL 1231158, at 3 & n.5 (N.D. Ill. Mar. 30, 2011), rev'd sub nom., Hobgood v. Ill. Gaming Bd., 731 F.3d 635 (7th Cir. 2013)-is not comparable in the slightest to the popcorn incident at issue in Carmody.

         The IGB argues in its reply brief that the parties' past litigation history does not add plausibility to Gnutek's allegations because Gnutek does not allege “an ongoing pattern of retaliatory behavior.” R. 20 at 2 (pointing out that Gnutek has not alleged any facts to suggest that the IGB engaged in any retaliatory conduct against him since the filing of the past litigation more than nine years ago). But the IGB's attempt to force Gnutek's allegations into a single artificial box labeled “ongoing pattern of retaliatory behavior” fails. Although such an on-going pattern is one factor, if it exists, to consider where the protected activity and the final adverse action are separated by a long time period, it is not the only factor that can add plausibility to a plaintiff's retaliation claim in such a situation.

         To begin with, Gnutek very well may have experienced on-going retaliatory conduct and simply did not include that fact in his complaint; as noted, Gnutek was not required to plead every fact that might support his claims. But even if the Court were to infer from the absence of such an allegation that the IGB did not engage in any on-going retaliatory behavior, as a matter of logic, “just because a supervisor did not discriminate or retaliate against an individual at one point in time does not mean that later discrimination or retaliation is foreclosed.” Benjamin v. Ill. Dep't of Fin. & Prof'l Regulation, 837 F.Supp.2d 840, 849 n.7 (N.D. Ill. 2011). Indeed, the facts alleged in the complaint render it plausible that Gnutek's firing was retaliatory notwithstanding that the IGB may have refrained from retaliation in the intervening years. Specifically, Gnutek alleges a “continued pattern of hostility with the IGB, ” R. 19 at 5; in other words, Gnutek alleges that there is bad blood between the parties stemming from their past history. A review of the facts alleged by Gnutek in the past litigation makes Gnutek's allegation of bad blood and delayed retaliation plausible. See, e.g., Gnutek, 2011 WL 1231158, at *1-7. Indeed, in an appeal taken during that litigation, the Seventh Circuit described the evidence as “easily support[ing] a reasonable inference that [the appellant] was the victim of a retaliatory witch hunt.” Hobgood, 731 F.3d at 644 (emphasis added).

         The IGB attempts to discount the Seventh Circuit's reference to a “witch hunt” because it was made in reference to the evidence supporting the retaliation claims of Gnutek's co-plaintiff in the prior federal litigation (Hobgood), who was a fellow IGB employee accused of violating the law by rendering aid to Gnutek's alleged whistle-blowing activities. But while Gnutek was not a party to his co-plaintiff's appeal, the facts recited by the Seventh Circuit in resolving that appeal involved Gnutek. It is not much of a stretch to conclude that any “witch hunt” directed at Gnutek's co-plaintiff might have been directed at Gnutek as well. The Seventh Circuit's comment on the co-plaintiff's evidence, therefore, adds to the plausibility of Gnutek's claims here.

         The Seventh Circuit's reference to a “witch hunt, ” as well as the facts described by the district court in its prior decisions in the same case, suggest a significant, difficult, and acrimonious history between Gnutek and his employer. By failing to acknowledge the serious charges and acrimonious nature of the prior litigation, the IGB suggests that the parties' past relationship was fairly innocuous, involving a situation roughly equivalent to the popcorn machine incident in Carmody. Such a comparison is ludicrous. Moreover, the Court need not, and indeed should not, accept the IGB's portrayal of the facts over Gnutek's. At this stage of the proceedings, the Court must indulge ever reasonable inference in favor of Gnutek, keeping in mind that the issue under Rule 12(b)(6) is not whether the IGB in fact retaliated against Gnutek but whether it is plausible that the IGB could have retaliated against Gnutek.

         Finally, even if the Court were to credit the IGB's argument that a retaliatory motive for Gnutek's suspension and termination is rendered implausible by the absence of allegations regarding retaliatory conduct in the lengthy time period between when Gnutek filed the first federal lawsuit and when he filed the present lawsuit, the allegations do not conclusively show that the time period in question is, as the IGB argues, at least nine years. The IGB ignores the fact that the federal litigation in question was on-going through at least May 20, 2014. See Hobgood v. Ill. Gaming Bd., No. 08 C 5516, Dkt. # 216 (N.D. Ill) (dismissing case with prejudice). Although Gnutek was dismissed as a plaintiff in that litigation as of February 17, 2012, it is at least plausible that the IGB would refrain from taking any further retaliatory conduct against Gnutek until the entire case was disposed of, in which case a reasonable factfinder could conclude that the time period between the alleged protected activity and the alleged retaliatory conduct was closer to nine months[2] rather than the nine years cited by the IGB. Accordingly, for this, as well as all of the other reasons already discussed, the Court concludes that Gnutek's Title VII retaliation claim against the IGB is plausible and survives Rule 12(b)(6).

         B. Retaliation Claim Against The Individual Defendants (Count II)

         The Individual Defendants, who are named in their individual capacities in Count II of the complaint, argue that those claims should be dismissed because the complaint's allegations do not show in what specific way each Individual Defendant was “involved” in the decision to suspend and then terminate Gnutek.

         The Individual Defendants may be held liable under 42 U.S.C. § 1983 if they retaliated against Gnutek in violation of the First Amendment. The Individual Defendants are correct that, in the context of a Rule 12(b)(6) motion, a plaintiff alleging a § 1983 claim for a constitutional violation must allege enough facts to show that the defendant was personally involved in the constitutional deprivation in question. See Moore v. Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993) (“a valid § 1983 claim for damages against a state supervisory official in his individual capacity requires a showing of direct responsibility for the improper action. In other words, an individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation.”) (internal quotation marks and citations omitted). But Gnutek alleges that all of the Individual Defendants participated in the decision to suspend and then terminate him. R. 1, ¶ 42. It would seem, therefore, that Gnutek has alleged the requisite personal involvement.

         The Individual Defendants' argument, however, apparently is that pleading personal involvement through an allegation of participation in the adverse employment action at issue is insufficient, and that a plaintiff must plead specific facts regarding the nature of the alleged participation rendering the allegation of personal involvement plausible. Gnutek acknowledges that the complaint “does not go into specifics on the role that each of [the Individual Defendants] played, ” and argues that if the allegation that all were “involved in the critical decisions” is not sufficient, than the Court should allow [him] to file an amended ...

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