Rufus v. City of Chi.

JAMES RUFUS, Plaintiff, v. THE CITY OF CHICAGO, et al. Defendants.

Case No. 18 C 7753

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 22, 2021

Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER

Pro se Plaintiff James Rufus sues his employer, the City of Chicago, and Roberto Diaz, Elizabeth Williams, and Phyllinis Easter, under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, and the Illinois Whistleblower Act (IWA), alleging that these Defendants violated the law when they refused to promote him in retaliation for filing a prior race discrimination lawsuit. The City has moved to dismiss the IWA claim in Count V, [68], and the Individual Defendants have moved to dismiss the § 1983 claims against them in Counts I, II, and III, [70]. For the reasons explained below, this Court grants both motions and dismisses Counts I, II, III, and V with prejudice.¹

I. Background

A. The Second Amended Complaint's Allegations

Plaintiff, an African American male, has, since 2010, worked as a custodian in the City's Department of Aviation at O'Hare International Airport. [64] at ¶¶ 5, 7.Defendant Diaz works as an assistant commissioner for the Department; Defendant Williams serves as a Terminal Manager for the Department; and Defendant Easter recruits for the City's department of human resources. Id. at ¶ 6.

In 2017, Plaintiff filed a lawsuit alleging that the City failed to promote him to foreman of custodians. Id. at ¶ 9. He alleges that, as a result of that lawsuit, Williams, Easter, and Diaz harassed and subjected him to retaliation. Id. at ¶ 10. Plaintiff asserts that Williams held a pre-disciplinary meeting with him regarding a false report that his co-worker (David Jurich) filed against him. Id. at ¶ 11. Plaintiff claims that Williams failed to discipline Jurich for filing the false report. Id. Plaintiff alleges that he filed additional complaints about Defendant Williams' behavior to the Director of Human Resources, non-party Argentene Hrysikos, and to the Office of Inspector General. Id. at ¶¶ 12, 14.

Sometime in 2017, Plaintiff took the written exam in order to apply for the position of foreman of custodians. Id. at ¶ 15. Plaintiff claims that, sometime in August 2017, after finding out who passed the written exam, he heard Diaz comment "I don't want neither one of those candidates can we do the test over." Id.

In September 2017, Diaz interviewed Plaintiff for the foreman position. Id. at ¶ 16. In November 2017, Plaintiff went to Hrysikos' office to inquire about his test scores, at which time Easter stated to Plaintiff "don't you have a pending case against us," and Plaintiff responded back stating "yes that's why I want to know my results because I might have to add this to my complaint." Id. at ¶ 13. A couple months later, in January 2018, Plaintiff found out that he was not chosen for the position.Id. at ¶ 17. Plaintiff alleges that he was not chosen for the position because of his race and his 2017 lawsuit. Id. Plaintiff alleges that he spoke with OIG investigators in January 2018 to complain about Defendants' alleged harassment and retaliation. Id. at ¶ 18.

B. Procedural History

Plaintiff initially brought suit in November 2018, [1], and amended his complaint in June 2019, [36]. The first amended complaint purported to state claims for violations of the equal protection clause against the individual Defendants, as well as Title VII retaliation and violations of the IWA against the City. Id. In January 2020, upon motion by the Individual Defendants, this Court dismissed the equal protection claims and granted Plaintiff leave to amend his claims against those Defendants. [59].

Plaintiff's second amended complaint asserts renewed equal protection claims against the individual Defendants (Count I, III, and III), as well as retaliation (Count IV) and IWA claims (Count V) against the City. [64]. The City moved to dismiss the IWA claim, [68], and the individual Defendants moved to dismiss the equal protection claims against them [70]. Although the Court gave Plaintiff ample time to respond to the motions, [82], he failed to do so.

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide a "short and plain statement of the claim" showing that the pleader merits relief, Fed. R. Civ. P. 8(a)(2), so the defendant has "fair notice" of the claim "and the groundsupon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain "sufficient factual matter" to state a facially plausible claim to relief—one that "allows the court to draw the reasonable inference" that the defendant committed the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." United States ex rel. Berkowitz v. Automation Aids, Inc., 896 F.3d 834, 839 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In evaluating a complaint under Rule 12(b)(6), this Court accepts all well-pleaded allegations as true and draws all reasonable inferences in the plaintiff's favor. Iqbal, 556 U.S. at 678. This Court, however, need not accept a complaint's legal conclusions as true. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). While courts construe pro se complaints liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers, the court need not credit a pro se plaintiff's "bald assertions or "legal conclusions." Lehn v. Holmes, 364 F.3d 862, 872 (7th Cir. 2004).

III. Analysis

A. Forfeiture

Initially, Plaintiff's failure to respond to Defendants' motions to dismiss constitutes an independent basis to dismiss the challenged claims. United States ex rel. Kalec v. NuWave Monitoring, LLC, 84 F. Supp. 3d 793, 805 (N.D. Ill. 2015) (citing Copeling v. Ill. State Toll Highway Auth., No. 12 C 10316, 2014 WL 540443, at *2(N.D. Ill. Feb. 11, 2014)) ("By failing to respond to Defendants' motion to dismiss . . . Plaintiffs forfeit the issue."). See also Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999) ("Our system of justice is adversarial, and our judges are busy people. If they are given plausible reasons for dismissing a complaint, they are not going to do the plaintiff's research and try to discover whether there might be something to say against the defendants' reasoning. An unresponsive response is no response. In effect the plaintiff was defaulted for refusing to respond to the motion to dismiss. And rightly so.") (citing Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir.1995); Teumer v. General Motors Corp., 34 F.3d 542, 545-46 (7th Cir.1994); Harris v. City of Auburn, 27 F.3d 1284, 1287 (7th Cir.1994); Brooks v. Ferguson-Florissant School District, 113 F.3d 903, 905 (8th Cir.1997)). Accordingly, this Court dismisses Counts I, II, III, and V based upon Plaintiff's failure to respond. This Court will nonetheless address the merits of Defendants' arguments below.

B. The City's Motion

This Court first considers the merits of the City's motion to dismiss Plaintiff's IWA claim in Count V. [68]. In his second amended complaint, Plaintiff alleges that the City refused to promote him because he complained about misconduct to the OIG on several occasions, and that such refusal constitutes a violation of Section 15 of the IWA. [64] at Count V. Section 15(b) of the Illinois Whistleblower Act provides that an "Employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause tobelieve that the information discloses a violation of a state or federal law, rule or regulation." 740 Ill. Comp. Stat. Ann. 174/15(b).²

In moving to dismiss, the City argues that Section 2-201 of the Illinois Tort Immunity Act bars Plaintiff's claim. [68] at 3-8. That provision states:

a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.

745 Ill. Comp. Stat. Ann. 10/2-201. Although this section only expressly immunizes "public employees," Illinois courts hold that local public entities "are also clothed with immunity if their employees are not liable for the injury resulting from their acts or omissions." LaPorta v. City of Chicago, 277 F. Supp. 3d 969, 997 (N.D. Ill. 2017) (citing Arteman v. Clinton Cmty. Unit Sch. Dist. No. 15, 763 N.E.2d 756, 762-63 (Ill. 2002)); see also Love v. City of Chicago, 363 F. Supp. 3d 867, 872 (N.D. Ill. 2019); Weiler v. Vill. of Oak Lawn, 86 F. Supp. 3d 874, 885 (N.D. Ill. 2015). To demonstrate that immunity applies, the City must show that it engaged in both the determination of policy and the exercise of discretion in allegedly refusing to promote Plaintiff for complaining to the OIG. Doe I v. Bd. of Educ. of City of Chicago, 364 F. Supp. 3d 849, 866 (N.D. Ill. 2019); Love, 363 F. Supp. 3d at 872.

Section 2-201 plainly applies here. Illinois courts have routinely dismissed complaints based upon injuries caused by "[m]unicipal decisions regarding the hiring, firing, discipline, and supervision of employees," because such actions "are discretionary policy decisions." Graham v. Bd. of Educ. of City of Chicago, No. 18 C 4761, 2019 WL 215098, at *6 (N.D. Ill. Jan. 16, 2019) (dismissing the plaintiff's claim for intentional infliction of emotional distress premised upon the City's initiation of removal proceedings against her); Hill v. Cook County, 463 F. Supp. 3d 820, 847 (N.D. Ill. 2020) (holding, on a motion to dismiss, that Section 2-201 immunized the defendants to the extent plaintiff alleged injuries stemming from negligent hiring decisions); Consolino v. Dart, No. 17-CV-09011, 2019 WL...