Preston v. Wiegand

573 F.Supp.3d 1299

Don PRESTON et al., Plaintiffs,

v.David WIEGAND et al., Defendants.

Case No. 20-cv-4272

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

Signed November 22, 2021

James L. DeAno, Raymond John Byrne, Laura Lee Scarry, DeAno & Scarry, LLC, Chicago, IL, for Plaintiffs.

Jeffrey S. Taylor, Jacob Edward Gancarczyk, Jonathan Wesley Powell, Michael Robert Stiff, Spesia & Taylor, Joliet, IL, for Defendants Chief of Police David Wiegand, David Alexander, Chris Spencer, Richard Wyman, Louis Presta, Village of Crestwood, Illinois.

Michael J. McGrath, Mark H. Sterk, Michael Kevin Smith, Robert R. Wilder, Odelson, Sterk, Murphey, Frazier & McGrath, Ltd., Evergreen Park, IL, for Defendant Village of Crestwood Board of Fire & Police Commissioners.

MEMORANDUM OPINION AND ORDER

MARY M. ROWLAND, United States District Judge

Plaintiffs Don Preston, Joseph Cortesi, Eric Chmura, Gilbert Hueramo, II, and Robert Hoselton bring this civil rights action against Defendants. Plaintiffs were police officers employed by the Village of Crestwood who allege they were terminated for their efforts to unionize. The defendants move to sever and to dismiss the Complaint. For the reasons stated herein, the motion to sever or dismiss [48] is denied and the motions to dismiss [46, 49] are granted in part and denied in part.

I. Background

The following factual allegations are taken from the Amended Complaint (Dkt. 43 ("Am. Compl.")) and are accepted as true for the purposes of the motions to dismiss. See W. Bend Mut. Ins. Co. v. Schumacher , 844 F.3d 670, 675 (7th Cir. 2016).

Plaintiffs were all employed by the Village of Crestwood Police Department. Am. Compl., ¶¶ 4-8. They were terminated in Fall 2019, or in Hosetlon's case, June 2020. Id. Preston, Cortesi, Chmura, and Hueramo all were part-time officers. Id. at ¶¶ 4-7. Hoselton started as a part-time officer but in 2013 became a full-time officer and was later promoted to Corporal. Id. at ¶ 8. Plaintiffs named as defendants the Village of Crestwood, Chief of Police for the Village of Crestwood David Weigand, Deputy Chief and Director of Operations for the Village of Crestwood Police Department David Alexander, Commanders for the Village Police Department Chris Spencer and Richard Wyman, Detective Sergeant for the Village Police Department Michael Coutre, Village of Crestwood Mayor Louis Presta, Village of Crestwood Board of Fire and Police Commissioners ("BOFPC"), and Board Commissioners Rob Lyons, Frank Caldario, Joseph Zangara, and James Fowler. Id. at ¶¶ 9-20. Alexander, Spencer, and Wyman were employees in Weigand's administrative staff who supervised and directed full-time and part-time police officers. Id. at ¶ 22.

Plaintiffs allege that during Weigand's tenure as Chief of Police, he showed favoritism by rewarding and/or promoting Village police officers and members of his administrative staff who were loyal to him and did his bidding. Id. at ¶ 23. Many of these individuals engaged in unethical and sometimes criminal activity but he and the Village covered up for and/or turned a blind eye to those activities. Id. Plaintiffs spoke out about Chief Weigand and his administrative staff's inconsistent, arbitrary and unlawful treatment of officers, the Village and police administration's turning a blind eye to the unethical and unlawful behavior by Weigand's favored officers, and other matters of public concern. Id. at ¶ 24.

On June 27, 2019, Preston, Hueramo, and Hoselton met with an officer of Illinois Council of Police ("ICOPS") to discuss the unionization process for the Village's full- and part-time police officers. Id. at ¶ 26. With enough authorization cards for the part-time officers only, on July 8, 2019, ICOPS filed a majority interest representation/certification petition on behalf of the part-time officers with the Illinois Labor Relations Board ("Labor Board"). Id. at ¶¶ 27-28. The Labor Board certified ICOPS as the exclusive bargaining unit for the Village's part-time police officers on or about August 1, 2019. Id. at ¶ 30. Defendants thereafter discussed ways to "bust" the union of part-time officers and retaliate against any Village police officer who supported the unionization of part-time and full-time police officers, and engaged in a campaign of intimidation, threats and coercion against Plaintiffs. Id. at ¶¶ 31-32. Upon learning that Hoselton was discussing unionization of full-time officers, Weigand twice demanded Hoselton's resignation, and threatened Hoselton that if he did not resign, Weigand would bring disciplinary charges against him before the BOFPC. Id. at ¶¶ 36-37. When Hoselton refused to resign, Weigand ordered Alexander, with the assistance of Wyman and Spencer, to fabricate disciplinary charges against Hoselton. Id. at ¶ 38.

On September 21, 2019, Defendants held a meeting during which officers were coerced, intimidated and threatened to sign an anti-union petition or risk losing their jobs. Id. at ¶¶ 42-44. Preston, Cortesi, Chmura and Hueramo did not attend the meeting or sign the petition. Id. at ¶ 44. These plaintiffs were thereafter terminated due to their pro-union stance, including their union authorization signature, and refusal to sign anti-union paperwork. Id. at ¶¶ 47, 49, 51, 52. By contrast, Alexander, Spencer, and Wyman were hired and/or promoted to fulltime positions as a reward for their "union busting activities." Id. at ¶ 62. On about October 22, 2019, after Hoselton refused to resign under pressure from Weigand, Weigand brought fabricated disciplinary charges against him before the BOFPC. Id. at ¶ 50.

Between October 2019 and Hoselton's March 2020 BOFPC disciplinary hearing, members of the BOFPC conspired and agreed with Weigand and now former Mayor Presta to terminate Hoselton's employment despite the overwhelming evidence in favor of maintaining Hoselton's employment. Id. at ¶ 65. Defendants Caldario, Zangara and Fowler terminated Hoselton's employment on June 19, 2020. Id.

II. Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). "To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide enough factual information to state a claim to relief that is plausible on its face and raise a right to relief above the speculative level." Haywood v. Massage Envy Franchising, LLC , 887 F.3d 329, 333 (7th Cir. 2018) (quotations and citation omitted). See also Fed. R. Civ. P. 8(a)(2) (requiring a complaint to contain a "short and plain statement of the claim showing that the pleader is entitled to relief."). A court deciding a Rule 12(b)(6) motion accepts plaintiff's well-pleaded factual allegations as true and draws all permissible inferences in plaintiff's favor. Fortres Grand Corp. v. Warner Bros. Entm't Inc., 763 F.3d 696, 700 (7th Cir. 2014). A plaintiff need not plead "detailed factual allegations", but "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 Federal Rule of Civil Procedure 8." Bell v. City of Chi. , 835 F.3d 736, 738 (7th Cir. 2016) (citation and internal quotation marks omitted).

Dismissal for failure to state a claim is proper "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 558, 127 S. Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). Deciding the plausibility of the claim is " ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ " McCauley v. City of Chi. , 671 F.3d 611, 616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) ). Rule 12(b)(1) permits a party to move for dismissal based on lack of subject-matter jurisdiction. See Apex Digital, Inc. v. Sears, Roebuck & Co. , 572 F.3d 440, 444 (7th Cir. 2009).

III. Analysis

Plaintiffs bring federal claims under 42 U.S.C. § 1983 —First Amendment retaliation based on speech (Count I) and union activity (Count II), deprivation of procedural due process (Count III (brought by Hoselton only)), and conspiracy to retaliate (Count IV). They also bring an Illinois state law claim for indemnification (Count VII). Hoselton only also brings claims for retaliatory discharge (Count V) and for administrative review of the BOFPC Decision under the Illinois Administrative Review Law, 735 Ill. Comp. Stat. 5/3-102 (Count VI, "ARL claim").

A. Village Defendants’ Motion to Sever or Dismiss

The Village Defendants seek to sever Hoselton as a party from this case under Federal Rule of Civil Procedure 21 or in the alternative to dismiss Count VI without prejudice and stay the remaining claims pending administrative review. (Dkt. 48).

1. Motion to Sever

Rule 20(a) allows for permissive joinder "when two requirements are met. First, the cases to be joined must contain a right to relief arising out of the same transaction or occurrence, or series of transactions or occurrences. Second, there must be a question of law or fact common to all the plaintiffs."¹ McDowell v. Morgan Stanley & Co. , 645 F.Supp.2d 690, 694 (N.D. Ill. 2009) (internal citations and quotations omitted). If "the Court finds that joinder is improper, Rule 21 comes into effect." Id . Under Rule 21, "[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party." Fed. R. Civ. Pro. 21. "It is within the district court's broad discretion whether to sever a claim under Rule 21." Rice v. Sunrise Express , Inc., 209 F.3d 1008, 1016 (7th Cir. 2000). A court may sever claims, "creating two separate proceedings, so long as the two claims are ‘discrete and separate.’ " Gaffney v. Riverboat Servs. of Indiana, Inc. , 451 F.3d 424, 442 (7th Cir. 2006) (citation omitted). "[T]he impulse is toward entertaining the broadest...