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Milsap v. City of Chicago

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

January 19, 2018

CITY OF CHICAGO, et al., Defendant.


          John Robert Blakey United States District Judge.

         Plaintiff Darrell Milsap was employed by the City of Chicago's Department of Streets and Sanitation (DSS) until May 22, 2015, when he resigned (allegedly, involuntarily). He sued the City pro se in April 2016 [1], and filed an amended complaint in February 2017 [31]. In May, this Court dismissed Plaintiff's pro se complaint for failure to state a claim, but gave him leave to amend [43]. In August, now with the assistance of counsel, Plaintiff filed a second amended complaint (SAC) [49], naming for the first time individual defendants along with the City. The City and the individual Defendants moved to dismiss. See [57]. For the reasons explained below, the motion is granted in part and denied in part.

         A. Plaintiff's Amended Allegations

         Plaintiff alleges that, after working for DSS for seventeen years, the City wrongfully terminated him because he “came forward to disclose corruption, favoritism, and violations of various laws and regulations by City employees in the court of an official investigation.” SAC [49], ¶1. Plaintiff alleges that he “also endured years of harassment at the hands of [his immediate supervisor, Harold] Irving, and others, due to a disabling back injury.” Id., ¶4. He names as Defendants the City of Chicago; Harold Irving (who was the DSS Division 5 Superintendent and Plaintiff's immediate supervisor); Gerald Brown (DSS Foreman of Motor Truck Drivers); Lemuel Austin (Superintendent for the 34th Ward); and Alderman Carrie Austin (who represents the 34th Ward). SAC [49], ¶¶8-11. The SAC alleges two counts of First Amendment retaliation in violation of 42 U.S.C. §1983, one against the City and one against Defendants Irving, Brown, L. Austin, and C. Austin (respectively, counts I and II). The remaining counts are asserted against the City only: disability discrimination and harassment in violation of the Americans with Disabilities Act (ADA) (count III); retaliation in violation of the ADA (count IV); violation of the Illinois Whistleblower Act (count V); and retaliatory discharge (count VI). Id., ¶¶ 75-132. Plaintiff also asserts an indemnification claim (count VII). Id., ¶¶133-35.

         With regard to his disability, Plaintiff alleges that he sustained a back injury in the workplace in 2006 and has suffered from disabling back pain ever since. SAC [49], ¶15. As a result, Plaintiff was assigned a “light duty” restriction, which allowed Plaintiff to avoid having to drive long distances or perform other duties that caused him chronic back pain. Id., ¶17. From 2006 until the end of his employment, Plaintiff was also granted intermittent leave for physical therapy. Id., ¶18. Plaintiff alleges that Defendant Irving created a hostile work environment and harassed Plaintiff because of his disability by: (a) disciplining Plaintiff for taking approved leave to treat his disability; (b) damaging Plaintiff's property on his office desk; (c) repeatedly verbally abusing Plaintiff in front of other City employees; (d) upon information and belief, disparaging Plaintiff to other City employees; (e) forcing Plaintiff to perform work outside of his light duty restrictions and threatening to discipline Plaintiff if he did not perform such work; and (f) using derogatory names such as “broke-back” or “cripples”. SAC [49], ¶20. Plaintiff also alleges that other City employees “forced Plaintiff to perform work outside of his light duty restrictions and verbally abused Plaintiff due to his disability.” Id., ¶23. He alleges that he filed numerous complaints with the City regarding Irving's harassment, but the City failed to address the issue; and he later endured additional harassment in retaliation for making the complaints with the City. Id., ¶¶25-27.

         Plaintiff also alleges that on December 10, 2012, he was involved in a car accident while performing a mail run for the City on Irving's orders. Id., ¶28. Kenneth Austin, who Plaintiff alleges is Defendant Carrie Austin's son and Defendant Irving's cousin, was with Plaintiff at the time of the accident. Id., ¶¶30, 34, 44. Kenneth Austin did not have a valid driver's license but was nonetheless driving. Id. ¶36. After their vehicle was rear-ended, Plaintiff called Defendant Brown (the Driver Foreman); Brown told Plaintiff to call Irving, and Irving told Plaintiff to tell the police. Id., ¶38-39. Plaintiff alleges that, when they went to the police station, Lemuel Austin (Kenneth Austin's brother and then Superintendent for the 34th Ward) and Irving “pressured Plaintiff to tell the police that he was the driver of the vehicle.” Id., ¶45. Irving told Plaintiff that he needed to “take care of Kenny” and that Kenneth Austin “could not ‘go down for this.'” Id. Plaintiff alleges that he told Irving he “would not play a role in falsifying information and lying to the police.” Id., ¶46. Irving then told Plaintiff that if he did not tell the police he was driving, Plaintiff “would ‘go down for this' and lose his job.” Id., ¶47. Plaintiff then falsified the accident report at the police station, stating that he was driving at the time of the accident. Id., ¶49.

         Plaintiff alleges that Carrie Austin subsequently told him that he needed to “stick to the story” and “continue to say that he was driving during the accident ‘or else.'” Id., ¶53. In April 2013, when interviewed as part of an investigation by the City's Office of the Inspector General (OIG), Plaintiff again stated that he was the driver at the time of the December 2012 accident. Id., ¶¶55-57. In May, however, during a second interview, Plaintiff disclosed that Kenneth Austin had actually been driving at the time of the accident; Plaintiff alleges that in making this statement, he “blew the whistle” and “acted against his own self-interest to tell the truth.” Id., ¶58. Following this disclosure, Plaintiff allegedly suffered retaliation, including verbal harassment, abuse, and threats to his job security. Id., ¶¶60-63.

         Plaintiff alleges that the OIG closed its investigation in late March 2015, and the City fired him on May 17, 2015. Id., ¶65. Plaintiff alleges that City Commissioner Charles Williams “told Plaintiff that because he ‘didn't stick to his story' and ‘broke the law, ' he was being discharged.” Id. Plaintiff was given the option to resign to preserve certain benefits, and he exercised that option. Id., ¶66. Plaintiff later learned that Carrie Austin told the City that if her son was going to be fired, Plaintiff also needed to be fired; this “led to Plaintiff's termination.” Id., ¶67.

         B. Legal Standard

         A motion to dismiss under Rule 12(b)(6) “challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted.” Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). A motion to dismiss tests the sufficiency of a complaint, not the merits of a case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). To survive a motion to dismiss, a complaint must first provide a “short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice” of what the claim is “and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Additionally, the complaint must contain “sufficient factual matter” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). That is, the allegations must raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs. Inc., 496 F.3d 773, 776 (7th Cir. 2007). A claim has facial plausibility “when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The “amount of factual allegations required to state a plausible claim for relief depends on the complexity of the legal theory alleged, ” but “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008). In evaluating the complaint, the Court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of Plaintiff. Iqbal, 556 U.S. at 678. The Court need not, however, accept legal conclusions or conclusory allegations. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).

         C. Discussion & Analysis

         Defendants have moved to dismiss all of the claims asserted in the SAC. This Court considers the sufficiency of Plaintiff's allegations below.

         1. Plaintiff's First Amendment Retaliation Claims (Counts I and II)

         The First Amendment protects a public employee's “right to speak as a citizen about matters of public concern under certain circumstances.” Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 508-09 (7th Cir. 2007) (citing Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); Connick v. Myers, 461 U.S. 138, 147-48 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). To make out a First Amendment retaliation claim, a public employee like Plaintiff “must first demonstrate that his speech was on a matter of public concern.” McGreal v. Ostrov, 57');">368 F.3d 657, 672 (7th Cir. 2004). Second, he must show that “his speech played at least a substantial part in his employer's decision to take an adverse employment action against him.” Id. If Plaintiff carries his burden on these two elements, Defendants may prevail by proving that the government's interest as an employer in efficiently providing government services outweighs Plaintiff's First Amendment interests, or that they would have disciplined Plaintiff even in the absence of his speech. Id. (citing Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002)).

         Defendants argue that Plaintiff's First Amendment retaliation claim against the City fails because Plaintiff cannot allege that he spoke as a private citizen and cannot allege that he spoke on a matter of public concern. Whether a government employee's speech “addresses a matter of public concern depends upon ‘the content, form, and context [of the speech] as revealed by the whole record.'” McGreal, 368 F.3d at 672-73 (7th Cir. 2004) (quoting Gustafson, 290 F.3d at 906-07; Connick v. Myers, 461 U.S. 138, 147-48 (1983)). This Court must also consider “the point of the speech in question: was it the employee's point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?” Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994).

         Plaintiff claims that his “speech about issues of nepotism and favoritism of a City Alderman's family member addressed matters of public concern.” Response [59], p. 5. But “a public employee who ‘reports official misconduct in the manner directed by official policy, to a supervisor, or to an external body with formal oversight responsibility . . . speaks pursuant to [his] official duties and [his] speech is unprotected by the First Amendment.'” Rose v. Haney, No. 16-CV-5088, 2017 WL 1833188, at *5 (N.D. Ill. May 8, 2017) (citing Spalding v. City of Chicago, 186 F.Supp.3d 884, 904 (N.D. Ill. 2016)). Similarly, an employee who “reports misconduct affecting an area within his responsibility (even when not strictly required to report it), also speaks pursuant to his official duties.” Id. (citing Hatcher v. Bd. of Trs. of S. Ill. Univ., 829 F.3d 531, 539 (7th Cir. 2016)). An employee does not speak “pursuant to his official duties when he either ...

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