Carroll v. City of Oak Forest

BRIAN E. CARROLL, Plaintiff, v. CITY OF OAK FOREST, an Illinois Municipal corporation,OAK FOREST BOARD OF FIRE AND POLICE COMMISSIONERS, and DAVID NAGEL,Individually and as Chairman of the OAK FOREST BOARD OF FIRE AND POLICE COMMISSIONERS, Defendants.

Case No. 19-cv-07412

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

May 18, 2020

Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER

Plaintiff Brian Carroll brings claims under 42 U.S.C. § 1983 and the Illinois Whistleblower Act against the City of Oak Forest, the Oak Forest Board of Fire and Police Commissioners, and David Nagel. Carroll, a part-time firefighter and paramedic for the City of Oak Forest, alleges that defendants have retaliated against him for years based on his political affiliations and his claims that defendants' hiring practices are illegal. Defendants now move to dismiss plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, defendants' motion is denied [12].

BACKGROUND

The Court takes the following facts from Carroll's First Amended Complaint (Pltf.'s Am. Compl., ECF No. 1 at 55-70.) The facts are accepted as true for purposes of deciding the instant motion. Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013).

In 2003, Carroll was hired by the City of Oak Forest as a part-time firefighter. Thereafter, Carroll received training to become a paramedic and currently serves as a part-time firefighter/paramedic for the Oak Forest Fire Department ("OFFD"). Carroll's father, Edward Carroll, is a long-time politician in Oak Forest. Edward Carroll is a former alderman and former member of the Oak Forest Board of Fire and Police Commissioners ("Board of Commissioners" or "the Board").

In 2005, JoAnn Kelly was elected mayor of Oak Forest. In the run-up to the election, the Carrolls campaigned against Kelly in favor of another candidate. Defendant David Nagel campaigned in support of Kelly for mayor. Both Kelly and Nagel knew the Carrolls campaigned against Kelly in the election. After she was elected mayor, Kelly appointed Nagel to the Board of Commissioners and declined to renew Edward Carroll's term on the Board. On Edward Carroll's last day on the Board, Nagel insulted Edward Carroll by making fun of plaintiff's emotional struggles in dealing with his mother's death.

Since he was hired in 2003, Carroll has tried to become a full-time firefighter with the OFFD. Illinois law dictates certain rules and procedures that a municipality like Oak Forest must follow when hiring full-time firefighters. In relevant part, municipalities like Oak Forest must hire full-time firefighters from a pool of candidates on an "eligibility list." To establish an eligibility list, municipalities periodically hold firefighter exams, and Illinois law requires a municipality to issue an initial eligibility list within 60 days of the exam. At some point, the eligibility list expires, and the municipality conducts another exam to create a new eligibility list. Applicants cannot be examined on their political opinions or affiliations. Subject to certain statutory exceptions, applicants must be below the age of 35 years old to take the exam.

In 2009, Oak Forest's Board of Commissioners held a full-time firefighter exam, but Carroll could not take the exam due to a shoulder injury. Defendants did not issue the eligibility list for the 2009 test until a year later, in 2010. Carroll claims this delay violates Illinois law and that defendants' delay was to ensure the son of a OFFD lieutenant would be hired as a firefighter.

By May 2012, the Board of Commissioners had not held another full-time firefighter exam, which Carroll also claims violated Illinois law. Carroll says he spoke to then-OFFD Chief Terry Lipinski about the Board's failure to have another exam, and Lipinski told Carroll that if he complained, "the Board would 'blackball' Carroll so that he would never become a full-time firefighter for OFFD." By April 2013, defendants had still not held another full-time firefighter exam, and Carroll again raised the issue with then-OFFD Chief David Griffin. Griffin responded by getting "in Carroll's face" and telling Carroll that if he or his father raised the issue of testing Carroll would be fired.

Carroll learned the Board of Commissioners was delaying expiration of the 2009 eligibility list so that the son of another OFFD lieutenant could be hired as a full-time firefighter. The son was hired in June 2013, and thereafter, the Board caused the 2009 eligibility list to expire.

The Board of Commissioners held another full-time firefighter exam in September 2014. Carroll was 35 years old at the time but was permitted to take the exam. When the exam began, Defendant David Nagel told Carroll that "he 'will never' make the eligibility list." Carroll states that due to Nagel's intimidation, Carroll did not pass the written test.

Thereafter, in September 2016, Carroll received a letter from defendants warning him that he did not work the minimum number of monthly shifts. Defendants threatened Carroll with termination for a subsequent violation, even though Carroll had never before fallen below the minimum number of shifts. Carroll states he received the letter despite defendants knowing that the issue was caused by an error in a new scheduling program, and Carroll further states that at least two other part-time firefighters who regularly worked fewer than the minimum number of monthly shifts did not receive similar letters.

The Board of Commissioners scheduled another full-time firefighter exam for January 20, 2018. When Carroll applied to take the exam, Carroll was told that Defendant Nagel determined Carroll was ineligible based solely on Carroll's age. Carroll was not provided any written notice of Nagel's decision nor was Carroll given any notice at all of his rights to challenge Nagel's decision. Prior to the exam, Carroll sought further explanation from Nagel via a telephone call and sent a letter to defendants through his attorney challenging the ruling. Defendants only responded through an attorney explaining again that Carroll was too old to take the exam.

Carroll alleges that defendants do not typically enforce the age restriction for the full-time firefighter exam. Aside from his own experience being allowed to take the exam in 2014, Carroll describes two other instances in 2000 and 2014 in which two applicants were allowed to take the full-time firefighter exam despite being 35 years or older at the time. Carroll alleges neither of those applicants campaigned against Kelly in 2005. Carroll also alleges that he spoke with two commissioners prior to the 2018 exam who said he would be permitted to take the exam despite the age restriction pursuant to the statutory exception described in 65 ILCS 5/10-1-7.1(c)(2), which states that the age restriction does not apply to an applicant who has worked as a part-time firefighter for five years immediately preceding the time the municipality begins using full-time firefighters.

Carroll originally filed this suit in Cook County Circuit Court on January 22, 2019. Carroll alleges that defendants continued to retaliate against him after he filed suit. In February 2019, defendants enacted a new rule regarding part-time employees that only impacted Carroll and that forced him to work fewer hours, despite OFFD being understaffed. Further, after Carroll's supervisor encouraged Carroll to earn a SWAT medic certification and after Carroll earned the certification at his own expense, defendants refused to put Carroll on the SWAT team, despite anopen position on the SWAT team. Defendants offered no explanation for their decision. Finally, in September 2019, Carroll sought temporary assignment to light duty so that he could recover from an upcoming gallbladder removal surgery; defendants denied the request without explanation, despite previously granting such requests made by other OFFD employees.

LEGAL STANDARD

"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mithceff, 696 F.3d 635, 637 (7th Cir. 2012). To survive a motion to dismiss for failure to state a claim, a plaintiff's complaint must contain "a short and plain statement of the claim[s] showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under federal notice-pleading standards, a plaintiff's 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) (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." Id. (citing Twombly, 550 U.S. at 556). "In reviewing the sufficiency of a complaint under the plausibility standard, [courts must] accept the well-pleaded facts in the complaint as true, but [they] need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.'" Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013).

DISCUSSION

Again, in his First Amended Complaint, Carroll brings two claims: (1) a First Amendment retaliation claim under § 1983 (Count I); and (2) a claim under the Illinois Whistleblower Act (Count II). Defendants argue both claims should be dismissed for a number of reasons. The Court addresses each claim in turn.

I. First Amendment Retaliation

To state a First Amendment retaliation claim under § 1983, Carroll must show that (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was "at least a motivating factor" in the defendants' decision to take the retaliatory action....