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Freelain v. Village of Oak Park

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

April 5, 2018



          Robert W. Gettleman United States District Judge.

         Plaintiff Rasul Freelain has brought a nine-count complaint against the Village of Oak Park (“the Village”), Chief of Police Anthony Ambrose, and Unknown Village Officials and Police Department Command Staff (“defendants”) alleging violations of Title VII, 42 U.S.C. § 2000e, et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1201 et seq., and the Illinois Whistleblower Act (“IWA”), 740 ILCS 174/1, et seq. Defendants have moved to dismiss Counts II through VI and Count IX[1] for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons discussed below, defendants' motion is granted in part and denied in part.


         Plaintiff worked for the Village as a patrol officer and detective in the Oak Park Police Department (“OPPD”) from 2002 until he was terminated in 2017. According to plaintiff, he was terminated in retaliation for reporting that OPPD Sergeant Dina Vardal sexually harassed and battered him, and for speaking out about misconduct within the OPPD. Plaintiff claims that the OPPD then investigated his conduct twice, both for retaliatory reasons, because he filed a lawsuit against the Village and Sergeant Vardal alleging FMLA interference, ADA discrimination and retaliation, and assault and battery in violation of the Illinois Gender Violence Act (“IGVA”).[3]One investigation involved plaintiff's arrest of a domestic battery suspect who alleged excessive force and malicious prosecution. According to plaintiff, that lawsuit, which resulted in a jury verdict for the man arrested, was filed October 24, 2014, but the investigation into plaintiff's conduct did not commence until June 28, 2016.[4] Plaintiff was interrogated regarding the arrest on July 21, 2016. Plaintiff claims that the Village was “apparently unhappy with the results of the interrogation, ” although he does not say why, and opened a second investigation into plaintiff's conduct, this time alleging that he accessed a criminal history database without authorization. Plaintiff was interrogated regarding that investigation on August 17, 2016, and claims to have heard nothing from the Village until November 21, 2016, in violation of the terms of the Collective Bargaining Agreement (“CBA”) between the Village and the Fraternal Order of Police, which represented plaintiff. November 21, 2016, was exactly 18 days after plaintiff lost the lawsuit he brought against the Village and Vardal, largely because the court found that plaintiff could not show any adverse employment action.

         According to plaintiff, when Chief Ambrose presented the Village's findings regarding the investigations into his conduct they included a number of new charges, of which plaintiff had not been notified, and which plaintiff claims were false. After presenting the findings, Chief Ambrose conducted a “Due Process Pre-Disciplinary Interview” with plaintiff. Plaintiff claims that Chief Ambrose refused to answer plaintiff's questions or explain his findings during that interview. Chief Ambrose terminated Plaintiff on May 26, 2017, for reasons plaintiff alleges were pretextual. Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on June 14, 2017, and received notice of his right to sue the following day. Plaintiff had a post-termination meeting with Chief Ambrose on July 14, 2017, which plaintiff characterizes as a “cross-examination.” Chief Ambrose allegedly issued another explanation of his reasons for terminating plaintiff after that meeting. Plaintiff had another post-termination meeting, this time with Village Manager Cara Pavlicek, on August 24, 2016. According to plaintiff, the Village again refused to answer any of his questions and instead used the meeting as an opportunity to “cross-examine” plaintiff. Plaintiff claims that the Village still refuses to fairly consider his response to the charges.


         I. Standard of Review

         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When ruling on a motion to dismiss pursuant to 12(b)(1) and (6), the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in plaintiff's favor. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004). The complaint must allege sufficient facts that, if true, would raise a right to relief above the speculative level, showing that the claim is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard demands that a complaint allege more than legal conclusions or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id.

         II. Analysis

         A. Count II: Illinois Whistleblower Act

         In Count II plaintiff claims that he was fired in retaliation for reporting violations of state and federal law, in violation of the IWA. According to defendants, this claim should be dismissed for three reasons: (1) no private right of action exists for one of the sections (§ 20.2) of the IWA that defendant claims plaintiff alleges the Village violated; (2) plaintiff's claim is preempted by the Illinois Human Rights Act (“IHRA”); and (3) plaintiff's claim fails absent an allegation that he reported the violations to a government official. Defendants add that Count II should be dismissed because plaintiff has failed to allege that he was retaliated against for a report protected by the IWA. The court need not address the first argument because plaintiff concedes it in his response brief, and clarifies that his claim is rooted only in Section 15 of the IWA.

         Defendants next argue that plaintiff's IWA claim is preempted by the IHRA because it is inextricably linked to his allegation of sexual harassment and retaliation. The IHRA provides that, “[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set for the in this Act.” 775 ILCS 5/8-111(D). The IHRA specifically bans sexual harassment in employment as a “civil rights violation.” 775 ILCS 5/2-102(D). Accordingly, if plaintiff bases his IWA claim only on his alleged report of sexual harassment, it would be preempted. Plaintiff does not. He also alleges that he was retaliated against for reporting a “felony and misdemeanor battery.” Such conduct, even when it “arises in the employment context might still form the basis for a sustainable common-law tort under Illinois law.” Richards v. U.S. Steel, 869 F.3d 557, 563 (7th Cir. 2017). “To draw the line between preemption versus not, the Illinois Supreme Court has boiled down the inquiry as follows: whether a court ‘may exercise jurisdiction over a tort claim depends on whether the tort claim is inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the Act itself.'” Id. at 564 (quoting Maksimovic v. Tsogalis, 177 Ill.2d 511, 518, 687 N.E.2d 21, 24 (1997)). A battery claim is not inextricably linked with a sexual harassment violation “where a plaintiff can establish the necessary elements of the tort independent of any legal duties created by the [IHRA].” Maksimovic, 687 N.E.2d at 24. Because plaintiff alleges a battery claim independent of his sexual harassment claim, and alleges retaliation for reporting the alleged battery, his IWA claim is not preempted.

         Defendants' argument that plaintiffs IWA claim should be dismissed because he reported Sergeant Vardal's alleged abuse internally also fails. The IWA provides:

An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation.

740 ILCS 174/15(b).

         Defendants are correct that both Illinois and Northern District of Illinois courts have generally held that internal reporting cannot form the basis of an IWA claim, but that analysis changes when the employer is itself a government or law enforcement agency. An employee who reports alleged misconduct to his government or law enforcement agency employer satisfies the IWA because “‘the statute requires an employee only to report to a government or law-enforcement agency, and no exclusions apply if a government or law-enforcement agency is also the employer.'” Milsap v. City of Chicago, 2018 WL 488270, at *9 (N.D. Ill. Jan. 19, 2018) (quoting Brame v. City of North Chicago, 955 N.E.2d 1269, 1272-73 (Ill.App.Ct. 2011)). Defendants attempt to distinguish Brame by noting that the plaintiff in Brame reported alleged misconduct directly to the Mayor, not the city's human resources department. The Brame Court did indeed note this fact, but nothing about its holding suggests that it should be construed so narrowly. To the contrary, it appears to have been intended to apply broadly to all police officers: “It is difficult to perceive that the legislature did not intend the Act to protect a police officer from retaliation for reporting the illegal conduct of fellow officers to his superiors in the department.” Brame, 955 N.E.2d at 1273. Plaintiff alleges that he reported what he perceived to be illegal conduct, a “felony and misdemeanor battery, ” by Sergeant Vardal to the Village's Human Resources Department and the Cook County State's Attorney. He further alleges that he was retaliated against as a result. Because these allegations are sufficient to state a claim under Section 15(b) of the IWA, defendants' motion to dismiss Count II is denied.

         B. Count III: First ...

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