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Consolino v. Dart

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

September 17, 2019

CARMEN CONSOLINO, et al., Plaintiff,
v.
THOMAS J. DART, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Plaintiffs bring claims against Defendants for retaliation, due process violations, and equal protection violations under 42 U.S.C. § 1983 and various state law theories. Before the Court is Defendants' motion to dismiss Counts III, IV, V, VI, and VII [62]. For the reasons set forth below, Defendants' motion to dismiss is granted with respect to Counts III, IV, VI, and VII, and denied with respect to Count V. The case is set for further status hearing on October 3, 2019 at 9:00 a.m.

         I. Background [1]

         The case concerns the termination of Plaintiffs' employment with the Cook County Sheriff's Office (CCSO), allegedly in retaliation for starting a union drive and whistleblowing about conditions in the Cook County Jail. According to the third amended complaint (TAC) [54], Plaintiffs Carmen Consolino, Antonio Belk, Victor Thomas, Cynthia Chubb, Andres Garcia, and Aretha Germany (“Plaintiffs”) were longtime employees of the CCSO, each having been in its employ for at least a decade. [54, at ¶¶ 24-29.] In May 2011, the title of the rank of “Correctional Captain” was changed to “Commander.” [Id. at ¶¶ 16, 38.] By April 2012, each Plaintiff had attained the rank of Commander either as a result of a promotion from Lieutenant or the name change from Correctional Captain. [Id. at ¶¶ 24-29.]

         Notwithstanding this straightforward narrative, the TAC is not altogether clear about Plaintiffs' actual job titles and ranks following April 2012. This confusion stems from the fact that the Cook County Sheriff's Merit Board apparently recognizes the rank of Correctional Captain, but it does not recognize the rank of Commander. [Id. at ¶¶ 11, 96]; see also, infra, III.A.1. Merit Board recognition is a big deal, because it comes with the promise that termination will only be “for cause.” [Id. at ¶ 96.] Plaintiffs submit that the rank of “Commander” is “nearly identical” to that of “Captain.” [Id. at ¶¶ 10, 29.] In the alternative, Plaintiffs allege that for purposes of merit classification, they retain the last “hard rank” they attained prior to promotion to Correctional Captain or Commander, which apparently would be Lieutenant. [Id. at ¶ 40.] But elsewhere, the TAC defines “commander” as a “sworn hard rank.” [Id. at ¶¶ 24-29.] Finally, Plaintiffs allege that they were similarly situated to “Directors” employed by the CCSO. [Id. at ¶¶ 110-111.]

         In December 2013, Plaintiffs filed an initial “Majority Interest Petition” and signed union cards, which signaled their collective interest in forming a union. [Id. at ¶ 50.] Defendants Sheriff Thomas Dart, Zelda Whittler, Bradley Curry, Nneka Jones Tapia, and Matthew Burke (“Defendants”)[2] fought Plaintiffs' union drive, arguing that Plaintiffs were supervisors or managers, and therefore ineligible under state law to form a union. Id. Plaintiffs Consolino, Belk, and Chubb regularly attended ILRB hearings, where Consolino and Belk gave testimony regarding the CCSO's labor practices and safety conditions at the Cook County Jail. [Id. at ¶¶ 51, 54, 135.] Plaintiffs Garcia and Germany were visibly involved in the union drive and known supporters of unionization, although they did not testify before the ILRB. [Id. at ¶ 52.] The Court infers that Plaintiff Thomas also supported unionization in a way that was known to Defendants. [Id. at ¶ 53.][3] On August 2, 2017, the ILRB issued a decision allowing the Commanders (i.e., Plaintiffs) to lawfully form a union. [Id. at ¶ 56.] Contemporaneous with the union drive, and throughout their employment with CCSO, Plaintiffs made internal complaints about jail conditions and alleged safety code violations. [Id. at ¶¶ 44-46.] In retaliation for voicing their concerns, Plaintiffs were shunned from internal management “pre-accountability” and “accountability” meetings. See [id. at ¶ 77.]

         At some point, Plaintiffs allege, “Defendant Dart passed and enforced SEAM, Article S.” [Id. at ¶ 119.] SEAM, Article S appears to be a department-wide policy that empowers Defendants to make discretionary layoffs. See [id. at ¶¶ 70, 73, 74.] On December 4, 2017, about four months after the favorable ILRB decision, Plaintiffs were laid off from the CCSO. [Id. at ¶ 37.] These layoffs, Plaintiffs contend, were directed and carried out by each of the Defendants pursuant to the authorities delineated in SEAM, Article S. [Id. at ¶¶ 70, 73, 74, 92.] Plaintiffs also contend that Defendant Dart selected Plaintiffs for layoffs and approved of the final termination orders. [Id. at ¶ 68, ¶ 74.] Plaintiffs were not provided with a pre-termination hearing, an opportunity to contest having been laid off, or any other procedure beyond a perfunctory exit interview where they were informed of their pension rights and COBRA. [Id. at ¶ 58-60.] Moreover, Plaintiffs were not allowed to accept demotions and “bump” junior officers. [Id. at ¶ 17.]

         Plaintiffs concede that CCSO was, at the time of the layoffs, reducing personnel costs in other ways beyond firing just them: According to the TAC, the CCSO also demoted, transferred, or reduced the salaries of other employees. [Id. at ¶ 57.] As is clear from the briefing, CCSO's broader personnel changes were contemporaneous to and at least partly motivated by the repeal of the “Soda Tax, ” which left the county in dire budgetary straits. See [67 at 5 n.1]; [60-1 at 2].

         Each Plaintiff held the position of Commander for more than one year prior to termination, putting them outside of the one-year probationary period outlined in the Sheriff's Employment Action Manual. [54 at ¶ 43.] Plaintiffs also plead that during their employment, they were subject to progressive discipline but fail to elaborate the terms of such discipline. [Id. at ¶ 99.]

         On November 27, 2018, Plaintiffs filed the TAC [Id.], which asserts six counts against all of the Defendants (except Cook County) in their individual capacities: a violation of Plaintiffs' First Amendment right to freedom of speech pursuant to 42 U.S.C. § 1983 (Count I) [Id. at ¶¶ 65- 85]; a violation of their First Amendment right to freedom of association pursuant to 42 U.S.C. § 1983 (Count II) [Id. at ¶¶ 86-93]; a violation of their Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983 (Count III) [Id. at ¶¶ 94-102]; a violation of their Fourteenth Amendment equal protection rights pursuant to 42 U.S.C. § 1983 (Count IV), [Id. at ¶¶ 103-115]; a violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq. (Count VI), [Id. at ¶¶ 128- 138]; and common law retaliatory discharge (Count VII), [Id. at ¶¶ 139-145]. Plaintiffs also assert a Monell claim against Defendant Dart in his official capacity (Count V) [Id. at ¶¶ 116-127] and an indemnification claim against Cook County (Count VIII) [Id. at ¶¶ 146-147]. Defendants filed a motion to dismiss Counts III, IV, V, VI, and VII pursuant to Federal Rule of Civil Procedure 12(b)(6) [62], asserting that each of the claims fails to assert a claim upon which relief can be granted.

         II. Legal Standard

         “In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must ‘state a claim to relief that is plausible on its face.'” See, e.g., Lodholtz v. York Risk Serv. Grp., Inc., 778 F.3d 635, 639 (7th Cir. 2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff's complaint needs not include “detailed factual allegations, ” but it must contain more than “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Thus, the complaint must include sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At this stage, the Court “accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Forgue v. City of Chicago, 873 F.3d 962, 966 (7th Cir. 2017) (quoting Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016)).

         III. Analysis

         A. Procedural Due Process (Count III)

         The Fourteenth Amendment to the U.S. Constitution forbids states from depriving “any person of life, liberty or property, without due process of law.” U.S. Const. amend. XIV § 1. “To state a claim for a procedural due process violation, a plaintiff must demonstrate (1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due process.” Manistee Apartments v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016).[4] Plaintiffs claim that they had a property interest in their employment, and that Defendants deprived them of that interest without due process. [54 at ¶¶ 95-100.] Defendants seek to dismiss this claim on the ground that Plaintiffs “do not have a property interest in their employment.” See [60-1 at 3.]

         Although the right to procedural due process is protected by the federal Constitution, property rights themselves “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Thus, the Court must turn to Illinois law to determine the nature and dimension of Plaintiffs' alleged property interest in their employment. See, e.g., Dibble v. Quinn, 793 F.3d 803, 810 (7th Cir. 2015). “[E]mployment relationships in Illinois are presumed to be at will.” Cromwell v. City of Momence, 713 F.3d 361, 364 (7th Cir. 2013) (citing Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 317 (Ill. 1987)); see also, e.g., Swyear v. Fare Foods Co., 911 F.3d 874, 885 (7th Cir. 2018). A public employee can rebut that presumption only if he or she has a “legitimate expectation of continued employment, ” and “to show a legitimate expectation of continued employment, a plaintiff must show a specific ordinance, state law, contract or understanding limiting the ability of the state or state entity to discharge him.” Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007) (citing Krecek v. Bd. of Police Comm'rs of La Grange Park, 646 N.E.2d 1314, 1318 (Ill.App.Ct. 1995)).

         Plaintiffs offer two theories in support of a legitimate expectation of continued employment: (1) the Cook County Sheriff's Merit Board Act requires that termination of certain correctional employees be “for cause” and (2) the property interest in continued employment was secured by an understanding in the form of a clearly implied promise. [54 at ¶ 96, 98-99.] The Court considers each in turn.

         1. Cook County Sheriff's Merit Board Act

         An employee can show a legitimate expectation of continued employment established by a “specific ordinance” or “state law.” Moss, 473 F.3d at 700. Plaintiffs hang their hat on the Cook County Sheriff's Merit Board Act (CCSMBA), 55 ILCS 5/3-7001, et seq., which mandates certain personnel policies and procedures for the CCSO. In relevant part, the Act provides, “Except as is otherwise provided in this Division, no deputy sheriff in the County Police Department, no fulltime deputy sheriff not employed as a County police officer or county corrections officer and no employee in the county Department of Corrections shall be removed, demoted or suspended except for cause.” 55 ILCS 5/3-7012. Elsewhere, the CCSMBA establishes a Merit Board, which has the power to “establish a classification of ranks including those positions which shall be exempt from merit classification.” 55 ILCS 5/3-7006. These provisions must be read in tandem: The Merit Board, pursuant to its powers in section 3-7006, has the authority to classify different position types as within or exempt from section ...


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