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Lanahan v. County of Cook

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

April 13, 2018




         Plaintiff Noreen Lanahan is an employee of the Cook County Health and Hospital System (“CCHHS”) who alleges that she has been grossly underpaid for the better part of a decade and that after she raised concerns that her salary was the product of gender and political-based discrimination, she became the target of retaliation. She brings suit against a host of defendants, including the management and human resources staff at CCHHS, the Independent Inspector General of Cook County and his staff, the President of the Cook County Board of Commissioners, and Cook County itself. Before the Court are two partial motions to dismiss Lanahan's amended complaint. The defendants contend that five of Lanahan's “claims” (more on the use of that term later)-First Amendment and Title VII retaliation, due process, gross negligence, and respondeat superior-do not withstand scrutiny under Federal Rule of Civil Procedure 12(b)(6). Having reviewed the parties' submissions, the Court grants in part and denies in part the motions to dismiss.


         I. The Shakman Decree

         Because Lanahan is a Cook County employee who alleges that she was retaliated against, in part, for raising concerns about political-based discrimination, this case requires some familiarity with what is known as the Shakman consent decree. In 1969, Michael Shakman and another plaintiff brought suit in the Northern District of Illinois challenging political patronage practices in the City of Chicago and Cook County. Shakman v. Democratic Org. of Cook Cnty., 481 F.Supp. 1315, 1320-21 (N.D. Ill. 1979), vacated sub nom., Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987). In 1972, the Shakman defendants entered into a consent decree prohibiting them from “conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time a governmental employee, upon or because of any political reason or factor.” O'Sullivan v. City of Chicago, 396 F.3d 843, 848 (7th Cir. 2005) (discussing history of Shakman decree). The decree was later broadened to eliminate political influence over hiring practices. Id. at 848-49. The import of the Shakman decree is that, with the exception of certain exempt positions, it is presently unlawful for Cook County to take political considerations into account in any employment actions, such as recruitment, hiring, promotions, terminations, or transfers. Shakman v. Democratic Org. of Cook Cnty., 569 F.Supp. 177 (N.D. Ill. 1983).

         A Supplemental Relief Order (“SRO”) also was entered in the Shakman litigation, which establishes a process for investigating and adjudicating claims of political discrimination or retaliation reported by county employees. (Suppl. Relief Order for Cook Cnty., ECF No. 41-1.) The SRO provides that the Cook County Office of Independent Inspector General (“OIIG”)[1] is responsible for investigating any claims that arise after February 2, 2007. (Id. at 18-19). The OIIG is required to issue findings on those claims to the Shakman compliance administrator (who oversees the SRO on behalf of the Shakman district court) and others for further action. (Id. at 21.) The SRO also provides claimants with the option of seeking a settlement conference with Cook County. (Id. at 23.) If the settlement conference is unsuccessful, claimants may proceed further to a binding arbitration on their claims. (Id. at 23-26.) With this background in mind, the Court turns to the allegations in the amended complaint.

         II. Factual Background[2]

         Lanahan has been an employee of the CCHHS since 1995. (Am. Compl. ¶ 22, ECF No. 40.) She was hired initially as a Grade 24 Director of Financial Control II, but her position was reclassified in 2008 to Director of Financial Control IV. (Id.) Lanahan continues to fill this position today and her annual salary has remained set at $101, 000 since 2008. (Id.) Beginning in or around 2009, Lanahan sought a pay increase after discovering that one of her male subordinates, Chris Soriano, was being paid more than she and after she took on some additional responsibilities. (Id. ¶ 27.) Over the next few years, Lanahan submitted numerous requests for a raise to her supervisors and management, but to no avail. (Id. ¶ 28.) In August 2014, she contacted Defendant Gladys Lopez, CCHHS Chief of Human Resources, to express her frustration about the lack of consideration given to her requests for a raise. (Id. ¶ 29.) Lopez directed Lanahan to Jennifer Purcell, a human resources staffer. (Id.) Over the next two weeks, Lanahan discussed her “pay discrimination issue” with Purcell via email. (Id. ¶¶ 29-30.) Among other points of discussion, Lanahan informed Purcell about how her male subordinate was being paid more than she and about how she was asked to assume additional responsibilities from another male employee who also earned more than she did. (Id.)

         A few weeks later, on September 12, 2014, Lanahan met with Defendant Eula Cisco, CCHHS Manager of Human Resources, to discuss her compensation. (Id. ¶ 31.) Cisco informed Lanahan that, for Grade 24 employees at CCHHS, “employment considerations” remained “exclusively at the discretion of the President of the Cook County Board of Commissioners, ” a role filled then and now by Defendant Toni Preckwinkle. (Id. ¶¶ 11, 31.) According to Cisco, to secure a pay raise, Lanahan needed either political influence or to file a claim for political discrimination pursuant to the Skakman SRO. (Id. ¶ 31.) In early October 2014, Lanahan met with Defendant Douglas Elwell, CCHHS Deputy Chief Executive Officer, to further discuss her compensation. (Id. ¶ 33.) Around the same time as her meeting with Elwell, Lanahan learned that Robert Vais, the only other Director of Financial Control IV at CCHHS (i.e., her only peer), was earning an annual salary of $138, 000. (Id.) Then, a few weeks after her meeting with Elwell, on October 22, 2014, Lanahan learned that her position was included on an Amended Severance Policy list, which reclassified her position from being merit-based to at-will. (Id. ¶ 35.)

         On October 23, 2014, Lanahan brought up the Amended Severance Policy list with Elwell. (Id. ¶ 37.) Elwell responded that her reclassification “ha[d] nothing to do with [her] complaint” but promised to investigate the issue further. (Id.) After receiving no further explanation, Lanahan contacted the Shakman compliance administrator. (Id. ¶ 39.) She then filed, through counsel, a formal complaint with the OIIG on December 19, 2014. (Id. ¶ 41.) In her OIIG complaint, Lanahan asserted a claim for unlawful political discrimination based on the influence of elected county officials over her salary and because she had been forced to take on additional responsibilities of more politically-connected employees. (Id. ¶¶ 41-42.) Lanahan also alleged that her inclusion on the Amended Severance Policy list was retaliation for her complaints about her unequal pay. (Id. ¶ 42.)

         The OIIG investigated Lanahan's claims and, on May 18, 2015, issued a report of its findings. (Id. ¶¶ 44-45; OIIG Investigation Report, ECF No. 40-6 (hereafter “OIIG Report”).) In its report, the OIIG concluded that the unlawful political discrimination claim was untimely. (OIIG Report at 4-5.) It found that because Lanahan first learned that she had been unfairly compensated in or around 2009, her complaint was not filed within the 120-day limitations period set by the SRO. (Id.) The OIIG also rejected Lanahan's retaliation claim, concluding that the addition of her position to the amended policy list was not an adverse action. (Id. at 5.) That is, her status as a “career service” employee was not affected by the list because it did not apply to individuals, like Lanahan, who were hired before June 30, 2010. (Id. at 5-6.) According to Lanahan, the OIIG Report is “inherently false, misleading” and was “authored with an intent to deceive.” (Am. Compl. ¶¶ 44-45.) She believes that the report does not include a complete recitation of the facts, excludes certain payroll records and other evidence that supports her pay disparity allegations, misstates controlling legal doctrines, and improperly ratifies the decision to strip her of her merit protection. (Id. ¶¶ 45-51.)

         Following the release of the OIIG's findings, Lanahan elected to pursue her claims through arbitration. (Id. ¶ 52.) On March 16, 2016 and June 1, 2016, Lanahan, represented by counsel, participated in an arbitration hearing during which she had an opportunity to present witnesses and evidence. (See Mem. Op. & Order at 3, ECF No. 41-5.)[3] In September 2016, the arbitrator issued a ruling in which he concluded that Lanahan failed to make a prima facie case for unlawful political discrimination and, in a footnote, disposed of her retaliation claim on the same grounds as the OIIG. (See Id. at 4-5.) The following month, on November 10, 2016, Lanahan filed a motion to vacate the arbitration award with the district court overseeing the Shakman decree. (See Id. at 1.) Magistrate Judge Schenkier, who has presided over the Shakman litigation by consent since July 2010, denied Lanahan's motion on March 9, 2017, finding that none of the issues she raised justified vacating the award. (Id. at 5-9.)

         Around the time of the OIIG's investigation and the arbitration proceeding, Lanahan alleges that she was subjected to several more adverse actions. In or around March 2015, during the OIIG's investigation, Elwell eliminated Lanahan's reserved handicapped parking space and reassigned it to another employee who did not have a disability. (Am. Compl. ¶ 78M.) Shortly after the OIIG Report was released in May 2015, Defendant Ekerete Akpan, the Chief Financial Officer of CCHHS, informed Lanahan that she was being relocated to another facility, which added an additional 90 minutes to her daily commute. (Id. ¶¶ 14, 78N.) Then, in March 2016, Akpan informed Lanahan that her position would undergo further change; her subordinates would be reorganized and relocated to a different facility than the one at which Lanahan worked. (Id. ¶ 78O.)

         III. Procedural Background

         Lanahan filed this suit on December 30, 2016, asserting claims against Cook County and employees of the CCHHS and the OIIG. For clarity, the Court separates the defendants into three groups: (i) Cook County (the “County”); (ii) the Cook County Defendants, which includes Preckwinkle, Shannon, Lopez, Elwell, Cisco, and Akpan; and (iii) the OIIG Defendants, which encompasses Blanchard, Cohen, and Jester. The operative complaint was filed in March 2017. Although it comprises eight “counts, ” the complaint asserts two claims. The first is that Lanahan was undercompensated because of her gender. That claim is directed only at the County and is not the subject of the pending motions to dismiss.[4]

         Lanahan's second claim is that she was retaliated against because of her complaints about her undercompensation. The retaliation claim is premised on Lanahan's complaints about her pay generally and in particular on her complaints that her undercompensation violated the Shakman decree. The retaliation theory is asserted against all of the defendants. In Count III, Lanahan asserts that the alleged retaliatory conduct violated the First and Fourteenth Amendments to the constitution and is actionable pursuant to 42 U.S.C. § 1983. In Count V, she alleges that the County is liable for the retaliatory conduct under Title VII, 42 U.S.C. § 2000e et seq. Count VI alleges that the OIIG defendants are liable for the retaliatory conduct under a state law theory of “gross negligence, ” and in Counts VII and VIII, she alleges that the County is liable for the retaliatory acts of the individual defendants under state law.

         Shortly after the amended complaint was filed, the OIIG Defendants moved pursuant to Rule 12(b)(6) to dismiss Lanahan's claims (identical as to each of them) on the ground that the amended complaint does not state a claim against any of them upon which relief may be granted. The County and the Cook County Defendants also moved pursuant to Rule 12(b)(6) to dismiss the retaliation claims against them.[5]


         All of the defendants argue that Counts III, V, VI, and VII-i.e., the retaliation claim- should be dismissed with prejudice pursuant to Rule 12(b)(6). To overcome a Rule 12(b)(6) motion, “a complaint must ‘state a claim to relief that is plausible on its face.'” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This Court “must accept as true all factual allegations in the . . . complaint and draw all permissible inferences” in Lanahan's favor. Id. (quoting Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015) (internal quotation marks omitted)). However, “[w]hile a plaintiff need not plead ‘detailed factual allegations' to survive a motion to dismiss, she still must provide more than mere ‘labels and conclusions or a formulaic recitation of the elements of a cause of action' for her complaint to be considered adequate under [Rule] 8.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (quoting Iqbal, 556 U.S. at 678).

         I. Section 1983 and Due Process

         Count III of the amended complaint invokes 42 U.S.C. § 1983, which provides a cause of action against a person, who, acting under the color of state law, deprives any individual of a right, privilege, or immunity secured by the Constitution and laws of the United States. L.P. v. Marian Catholic High Sch., 852 F.3d 690, 696 (7th Cir. 2017) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Section 1983 does not vest plaintiffs with any rights, but rather provides them with the procedural mechanism for “vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 394 (1989) (citation omitted). Plaintiffs must identify the specific constitutional right that they believe was infringed. Id. Lanahan's § 1983 claim is principally based on alleged violations of her First Amendment right to free speech. She also refers in passing to an infringement of her right to due process.

         Lanahan's due process theory can be easily disposed of because she fails to sufficiently allege the threshold requirement of a protected interest. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972) (holding that due process applies to deprivations of liberty or property interests).[6] Her due process theory centers on the notion that the OIIG conducted a fraudulent investigation into her political discrimination and retaliation claims. The key allegation in the amended complaint, and the only one that even mentions due process, states:

Defendants Blanchard, Cohen and Jester's bad faith dismissal of Plaintiff's retaliation allegation was, itself, retaliation and denied Plaintiff the protection afforded to employees who complain of illegal employment actions and abetted the County's retaliation against Plaintiff. The content and legal authority cited in the OIIG's Findings indicate a policy intent to deceive and dissuade reasonable employees with legitimate and well-founded complaints of discrimination from pursuing claims and/or delaying the same; thus, impairing due process rights.

(Am. Compl. ¶ 78K.) Nothing in this allegation, or anywhere else in the complaint, identifies a protected interest of which the OIIG supposedly deprived Lanahan by issuing a fraudulent report. The defendants, for their part, speculate at what the interest may be, arguing that Lanahan cannot establish a property interest in her employment or a pay raise. (OIIG Mot. to Dismiss 11, ECF No. 41). That strikes the Court as off-base; if retaliation takes the form of conducting a sham investigation, then it would seem that the interest implicated would be the interest in an investigation conducted in good faith.[7] But Lanahan does not address this argument and in the process fails to clarify her theory. To be sure, she does imply at one point that she has a protected interest in “her complaints of discrimination.” (Pl. Resp. to OIIG Mot. to Dismiss 14, ECF No. 47.) But if that is the interest she is relying on, her theory is one of free speech not procedural due process. See Roth, 408 U.S. at 575 & n.14 (rejecting notion that due process requires hearing for college teacher whose non-retention was based on exercise of free speech); Perry v. Sindermann, 408 U.S. 593, 599 n.5 (1972) (stating that employee does not have due process right to hearing simply because adverse employment decision was based on employee's constitutionally protected conduct) (citing Roth, 408 U.S. at 575 n.14). Accordingly, the Court concludes that as presently pleaded, Count III does not adequately allege a due process violation and the retaliation claim cannot stand on that basis.

         II. First Amendment - Retaliation

         Turning to Lanahan's First Amendment theory, to state a prima facie claim for retaliation, she must sufficiently allege that: (1) her speech was constitutionally protected; (2) she suffered a deprivation likely to deter free speech; and (3) her speech was at least a motivating factor in the defendants' actions. Peele v. Burch, 722 F.3d 956, 959 (7th Cir. 2013) (quoting Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012)). The defendants attack this theory on multiple fronts. They first argue that, based on the facts alleged, Lanahan cannot establish retaliation because her speech was not protected and she cannot show that certain actions amount to a deprivation. Several of the Cook County Defendants also contend that they lack the requisite knowledge or involvement to be held liable under §1983, and the OIIG Defendants argue that qualified immunity shields them from liability. Finally, the County argues that it should be dismissed because Lanahan cannot meet the requirements of Monell. The Court addresses each of these arguments in turn, starting with protected speech.

         A. Protected Speech

         A threshold issue is whether any of Lanahan's speech merits protection under the First Amendment. Because Lanahan is a public employee, her speech is protected only if she spoke as a private citizen on a matter of public concern. Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016) (citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). Whether speech is constitutionally protected is a question of law for the Court to decide. Id. (citing Houskins v. Sheahan, 549 F.3d 480, 489 (7th Cir. 2008)). Here, the Court must consider whether any of the pay and retaliation ...

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