Hladek v. City of Calumet City

RAY HLADEK, Plaintiff, v. CITY OF CALUMET CITY, ILLINOIS, a municipal corporation, et. al., Defendants.

Case No. 19-cv-4490

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

August 6, 2020

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

For the reasons stated below, Defendants Michelle Markiewicz Qualkinbush's and Christopher Fletcher's motion to dismiss [15] pursuant to Federal Rule of Civil Procedure 12(b)(6) is denied. Counsel are directed to file no later than August 19, 2020, a revised discovery plan [see 42] that includes a proposed fact discovery cutoff date. The Court will set this case for a telephonic status hearing after reviewing the joint status report.

I. Background¹

On July 2, 2019, Plaintiff Ray Hladek ("Plaintiff") filed a complaint against various defendants alleging that each violated his rights secured by 42 U.S.C. §§ 1983 and 1981 by bypassing him for a promotion to police sergeant and instead promoting a less qualified African American candidate. [1]. The two defendants relevant to this motion, Mayor Michelle Markiewicz Qualkinbush and Police Chief Christopher Fletcher ("Moving Defendants"), now seek dismissal of Plaintiff's claims against them in both their individual and official capacities, arguing theylacked the authority to participate in the promotional decision and consequently cannot be liable for any resulting (alleged) violation of Plaintiff's rights. [15].

Plaintiff, a white male, has been employed by the City of Calumet City ("Calumet City") Police Department as a police officer since June 25, 1997. [1] ¶ 4. Plaintiff claims that for more than twenty years his performance as an officer has consistently exceeded expectations and requirements. [1] ¶ 45. In 2018, Calumet City promoted several officers to sergeant, and Plaintiff was up for promotion in both August and September of that year. [1] ¶¶ 18-19. For promotions, the Calumet City Police Department follows an Illinois state law "Rule of Three," which authorizes the appointing authority to promote any of three top-ranked candidates for a given position based on merit. 65 ILL. COMP. STAT. 5/10-2.1-15; see also Sundstrom v. Village of Arlington Heights, 826 F. Supp. 1143, 1146, 1148 (N.D. Ill. 1993); Bakalich v. Vill. of Bellwood, 2006 WL 1444893, at *2 (N.D. Ill. May 17, 2006). Under the Rule of Three, the hiring authority has freedom to choose a lower-ranked officer for promotion, bypassing higher-ranked applicants. 65 ILL. COMP. STAT. 5/10-2.1-15. The hiring authority for the Calumet City is the Illinois Board of Fire and Police Commissioners, which does not include either of the Moving Defendants. [15].

Earlier in 2018, Calumet City had promoted two first-ranked white males to sergeant. [1] ¶¶ 15-17. In the August 2018 promotional round, Plaintiff was slotted for promotion to sergeant, ranked third alongside a first-ranked black male and a second-ranked white male. [1] ¶ 18. Calumet City promoted the second-ranked white male. [1] ¶ 18. Plaintiff was once again slotted for promotion on September 13, 2018, this time ranked second alongside a first-ranked African American male and a third-ranked white male. [1] ¶ 19. The first-ranked African American candidate was chosen for promotion. [1] ¶ 19. However, Plaintiff alleges that the African Americancandidate was less qualified for the position as sergeant because of his known criminal history. [1] ¶¶ 20-22. That individual had a history of arrests and a criminal conviction that the Moving Defendants became aware of during the prior promotional period in August of 2018. [1] ¶¶ 23, 28. Plaintiff claims that the African American candidate was excluded from promotion because of his criminal record until Plaintiff's promotion was imminent on September 13, 2018, at which point the African American candidate was included in the slot above Plaintiff and then promoted. [1] ¶¶ 28, 29.

Plaintiff believes that he was the more qualified candidate for the September 13, 2018, promotion and submits that the Moving Defendants conspired with the Board of Fire and Police Commissioners to bypass him and promote the African American male to sergeant in accordance with their political agendas. [1]. Plaintiff, a union representative, had been vocal in complaints about a Calumet City policy that affected matters of public safety, and he alleges that he was retaliated against for this speech when he was bypassed for the less qualified African American candidate. [1] ¶¶ 19, 33. Plaintiff alleges that the Moving Defendants met with Defendants Commissioners Blake, Cox, and Galgan prior to September 13, 2018 to discuss their specific intent to make an illegal promotion based on race instead of merit. [1] ¶ 24. Plaintiff also alleges that the Moving Defendants exchanged emails to the same effect. [1] ¶ 27.

II. Legal Standard

The two moving defendants seek dismissal of Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. [15]. A motion to dismiss challenges the legal sufficiency of the complaint, not the merits of the allegations. See, e.g., Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). The Court "construe[s] thecomplaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [his] favor." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A Plaintiff can survive a motion to dismiss under Rule 12(b)(6) by alleging facts which, when accepted as true, "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level." Cochran v. Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (quoting EEOC v. Concentra Health Servs., Inc, 496 F.3d 773, 776 (7th Cir. 2007)).

III. Analysis

A. Count I: Retaliation in Violation of 42 U.S.C. § 1983

Plaintiff claims he was retaliated against in violation of 42 U.S.C. § 1983 for exercising both his right to freedom of speech and freedom of association when he was passed over for the promotion on September 13, 2018. These rights are derived from both the First and Fourteenth Amendments to the United States Constitution, Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (citing NAACP v. Alabama, 357 U.S. 449, 460 (1958)), and 42 U.S.C. § 1983 provides that any person who causes the deprivation of "any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured * * *." 42 U.S.C. § 1983 (2018); see also Johnson v. City of Chicago, 711 F. Supp. 1465, 1467 (7th Cir. 1989). Thus, to state a claim for relief for a violation of § 1983, a plaintiff must establish that he was deprived of such a right by a person acting under the color of the law. American Mfrs. Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Local municipalities and local government officials are both considered "persons" for the purpose of a § 1983 claim. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 690 n.55 (1978). To establish individual liability under § 1983, a plaintiff must establish that the"defendant was personally responsible for the deprivation of a constitutional right." Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Personal responsibility can range from deliberate conduct or facilitation to acquiescence or willful blindness. Id. (citing Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1998)).

In an employment context, a plaintiff bringing a § 1983 claim for First Amendment retaliation must allege that he engaged in constitutionally protected conduct and that his conduct was a motivating factor in the defendant's adverse employment action. Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004). The First Amendment protects a public employee's speech on matters of public concern. Connick v. Myers, 461 U.S. 138, 142 (1983); see also Spiegla, 371 F.3d at 935. Generally, public safety is a matter of public concern. Gustafson v. Jones, 290 F.3d 895, 913 (7th Cir. 2002) (citing Auriemma v. Rice, 910 F.3d 1449, 1460 (7th Cir. 1990)). Additionally, associating with a union and speaking on a union's behalf are protected by the First and Fourteenth Amendment rights to both freedom of speech and freedom of association. Marshall v. Allen, 984 F.2d 787, 799 (7th Cir. 1993).

Plaintiff has plausibly alleged that the Moving Defendants violated § 1983 by retaliating against him following his exercise of his rights to freedom of speech and freedom of association. Taking the well-pleaded allegations in the complaint as true, the Moving Defendants, who legally have no authority to control promotions within the Calumet City Police Department, [15], were nonetheless directly involved in the promotion of individuals who supported them politically. [1] ¶ 25. Consequently, after Plaintiff spoke against a Calumet City policy, he was bypassed for a less-qualified candidate for promotion on September 13, 2018. [1] ¶¶ 19, 33. Plaintiff's complaint reads: "All of the Defendants unlawfully retaliated against Plaintiff Hladek because he, as a unionrepresentative, complained about Defendant Calumet City's policy which affected matters of public concern and safety." [1] ¶ 33. When taken as true, the complaint adequately alleges that the Moving Defendants violated Plaintiff's protected rights to speak on a matter of public concern and to associate with and speak on behalf of a union without consequence. Further, the complaint alleges that "[t]he Defendants' conduct constitutes a pattern and practice of retaliation against those who exercise their First and Fourteenth Amendment rights of free speech and association." [1] ¶ 34. Because 42 U.S.C. § 1983 provides that any person who deprives another of these protected rights will be liable to the injured party, and accepting Plaintiff's allegations as true, adequately states a claim for First Amendment retaliation.

The Moving Defendants argue ...