United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge.
Sroga brings this suit against the City of Chicago,
Department of Police, and the State of Illinois in connection
with his unsuccessful application to become a Police Officer.
After consolidating this suit with a factually similar suit
Sroga had filed, the Court directed Sroga to file a
consolidated complaint. (Dkt. 55). He has done so, alleging
claims including age, race, and gender discrimination and
various state-law claims. The City of Chicago has moved to
dismiss Sroga's consolidated complaint. For the reasons
stated here, the City's motion to dismiss under Federal
Rule of Civil Procedure 12(b)(1) is denied. The City's
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is granted in part and denied in part. The
City's motion to dismiss is denied as to Counts II and
III. The Court grants the City's motion to dismiss Counts
I and IV-IX and does so without prejudice, with leave for
Sroga to amend his complaint consistent with this opinion, if
possible, within 21 days of the publication of this opinion.
following factual allegations are taken from Sroga's
consolidated complaint (Dkt. 65) and are assumed true for
purposes of this motion. W. Bend Mut. Ins. Co. v.
Schumacher, 844 F.3d 670, 675 (7th Cir. 2016).
responded to an October 2013 job announcement posted by the
City for the position of Probationary Police Officer. (Dkt.
65 at ¶ 12). The announcement advertised that applicants
who passed a written exam, supplied required documents, and
who otherwise met certain minimum qualifications would be
considered for hire. (Id. at ¶ 13). The
announcement provided that qualifying candidates would
receive a lottery number which would serve as the order of
selection for hire. (Id. at ¶ 13).
applied for the position and took the Chicago Police Officer
Entry Examination on December 14, 2013. (Id. at
¶ 15). Soon after, Sroga received a letter from the
testing agency stating that he had passed the exam and that
his lottery number was 1, 546 out of 12, 713, and that he
would be called for the hiring process according to his
lottery number. (Id. at ¶¶ 17-18).
continued on in the hiring process and in October 2014 took
the P.O.W.E.R. test-an agility test. (Id. at
¶¶ 21, 23-24). The P.O.W.E.R. test has different
passing standards for male and female applicants.
(Id. at ¶ 22). Sroga passed the P.O.W.E.R. test
and was further processed for psychological testing, drug
testing, medical exams, and more, which he completed.
(Id. at ¶ 25).
not entirely clear from the consolidated complaint, it
appears that, in 2015, Sroga again applied to take the
“Police Officer Exam.” (Id. at
¶¶ 20 & n.1, 25). He notes that he was 40 years
old when he applied to take the exam but was 41 years old
when the exam was administered. (Id.).
City of Chicago Municipal Code § 2-152-410(e) provides
that “no person above the age of 40 may receive initial
appointment as a probationary career service police officer
with the police department.” On November 16, 2014,
Sroga turned 40 years old. (Id. at ¶ 26). Sroga
alleges that after this time, the City ceased processing his
application. (Id. at ¶ 32). Sroga received no
communications from the City or any other entity notifying
him that his applications had been disqualified or that he
was no longer being considered for the position.
(Id. at ¶¶ 35-36). Sroga has reached out
to the City, and the City has informed him that he has not
been disqualified from consideration. (Id. at
¶¶ 35-37). Despite this, he has not received
further processing. (Id. at ¶¶ 35-37, 46).
Sroga alleges that the City has continued to process
applicants who are younger or who are Black and Hispanic,
including those who had a lottery number higher than his and
who should have been processed after him. (Id. at
¶¶ 40, 49, 55).
reviewing a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction, the plaintiff must carry his burden of
establishing that jurisdiction is proper. Ctr. for
Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d
586, 588-89 (7th Cir. 2014). To determine whether
jurisdiction exists, the Court turns to the complaint along
with evidence outside of the pleadings. Apex Digital,
Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th
Cir. 2009). A court lacking subject-matter jurisdiction must
dismiss the action without proceeding to the merits. See
MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins.
Co., 935 F.3d 573, 581 (7th Cir. 2019).
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the complaint “must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). A claim is facially plausible “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. The Court is
“not bound to accept as true a legal conclusion couched
as a factual allegation.” Olson v. Champaign Cty.,
Ill., 784 F.3d 1093, 1099 (7th Cir. 2015) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Toulon v. Cont'l Cas. Co.,
877 F.3d 725, 734 (7th Cir. 2017) (quoting Iqbal,
556 U.S. at 678.).
brings claims for age discrimination against the City (Count
I), race discrimination against the City (Counts II and III),
and gender discrimination against the City and State (Count
IV). He also brings a claim under Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658 (1978),
against the City and State (Count V), negligence and gross
negligence claims against the City (Counts VI and VII), and
intentional and negligent infliction of emotional distress
claims against the City (Counts VIII and IX). (Dkt.