IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No.

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1 PATRICK McDONOUGH, v. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Plaintiff, CITY OF CHICAGO, DEPARTMENT OF WATER MANAGEMENT; ALEXANDER VROUSTOURIS; RICHARD RICE; MICHAEL TIERNEY; BRIAN MURPHY; THOMAS BRIATTA; THOMAS TALLEY; MAUREEN EGAN; and e HUMAN RESOURCES BOARD OF THE CITY OF CHICAGO, Defendants. No. 06 C 2732 Wayne R. Andersen District Judge MEMORANDUM, OPINION AND ORDER This case is before e Court on e motion of Defendants City of Chicago, e Human Resources Board of e City of Chicago, Alexander Vroustouris, Richard Rice, Brian Murphy, Thomas Talley, Maureen Egan, Thomas Briatta and Michael Tierney to dismiss Plaintiff Patrick McDonough s Complaint pursuant to Fed.R.Civ.P. 12(b(6 and 12(b(1. For e following reason, e motions to dismiss is granted in part and denied in part. BACKGROUND The following facts are taken from Plaintiff s Complaint and are presumed to be true for purposes of is motion. In 1999, Plaintiff Patrick McDonough was hired by e City of Chicago Water Department as a plumber and assigned to e Nor District. From 1999 to 2001, McDonough performed his duties in e Water Department wiout incident. In 2001, McDonough allegedly began to observe a pattern involving trucks hired by e Water

2 Department. He believed at ese hired trucks, owned by people wi political connections to City administration, would sit idle at work sites, failing to deliver any services of value for e taxpayers of e City of Chicago. Because e arrangement did not appear eical or legal to McDonough, he brought his concerns to e Inspector General. Thereafter, McDonough allegedly began to experience retaliation on e job. The retaliation allegedly included ings such as reduced overtime opportunities, denial of promotions, and being removed from his previously stable work crew and instead being switched around from work crew to work crew, a less desirable arrangement. McDonough allegedly was also subjected to differential enforcement of e Department's rules, such as an unfair application of a new card "swipe" policy, and being "written up" for purported infractions even ough he had not broken any rules. Faced wi is treatment, McDonough continued to make complaints wiin e Water Department, including grievances and complaints to e Inspector General. Among oer ings, McDonough alerted e Inspector General at overtime in e Department allegedly was distributed at least in part based on cash bribes to e supervisors, political activity, or intervention by Aldermen; at safety regulations allegedly were being flouted; at gambling and drinking on e job allegedly were widespread; at e Hired Truck problem allegedly was continuing unabated; and at McDonough allegedly was being unfairly persecuted at e workplace for bringing e foregoing to e Inspector General's attention. McDonough alleges at his complaints to e Inspector General were ignored. In 2003, McDonough met wi Mark Brown, a columnist for e Chicago Sun Times and blew e whistle on e Hired Truck program and oer alleged corruption in e Water Department. Wi McDonough's assistance, Mark Brown proceeded to write several columns in e Sun Times about e alleged corruption in e Hired Trucks program, as did oer reporters. 2

3 McDonough alleges at it was well known in e Water Department at he was a source for e information in ese articles, and McDonough allegedly was routinely referred to on e job as a "rat", as well as oer derogatory terms. He also received reats to his physical safety. Thereafter, McDonough took his concerns to e FBI and several people have pled guilty in e resulting Hired Trucks criminal prosecutions, including e former Commissioner of e Water Department, Donald Tomczak. McDonough alleges at he believes at e federal auorities are continuing to investigate possible criminal charges against oer officials. McDonough alleges at he paid a price for his activities. He alleges at in or about October of 2004, he was ordered to meet wi investigators from e Inspector General's office regarding false and retaliatory allegations against him. Thereafter, McDonough was placed on paid leave for e entire winter of and, as a result, was deprived of overtime opportunities. On April 1, 2005, e Water Department fired McDonough. The explanation allegedly provided was at McDonough had violated e City's residency rules. McDonough alleges at is basis for e termination was untrue and pretextual, as McDonough did not violate e residency requirements or any oer rules. A hearing was held before e Personnel Board of e City of Chicago on e propriety of McDonough's termination. On January 17, 2006, e City hearing officer issued a written decision, primarily concluding at e City had failed to prove at McDonough's legal residence was anywhere oer an e City of Chicago and at, erefore, his discharge was improper. Accordingly, e City hearing officer recommended at e City rescind e discharge of McDonough's employment. On January 24, 2006, e City's Human Resources Board upheld e City hearing officers' recommendation and reinstated McDonough's job. 3

4 McDonough returned to work on February 16, Since en, McDonough allegedly has experienced furer retaliation as a result of his speech on matters of public concern. Specifically, among oer ings, McDonough allegedly was re-assigned to a different, less geographically convenient district and a less desirable shift. McDonough also allegedly experienced a demotion in his position and a reduction in pay. On May 16, 2006, McDonough filed his six-count Complaint against e City and e individual defendants in eir individual capacities. In Count I, McDonough alleges at e City and e individual defendants retaliated against him for his exercise of protected speech in violation of e First Amendment pursuant to 42 U.S.C In Count II, McDonough alleges at e City and e individual defendants victimized him based on his membership in a class of whistleblowers who spoke out against corruption in e Water Department, ereby depriving him of his equal protection rights as protected by e Fourteen Amendment in violation of 42 U.S.C In Count III, McDonough alleges a conspiracy in violation of 42 U.S.C In Count IV, McDonough claims violations of e Shakman consent decree. In Count V, he brings a claim pursuant to e Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/4. Finally, Count VI is a state law petition for writ of certiorari challenging certain portions of e Human Resources Board s decision. DISCUSSION In ruling on a motion to dismiss, e court must draw all reasonable inferences at favor e plaintiff, construe e allegations of e complaint in e light most favorable to e plaintiff, and accept as true all well-pleaded facts and allegations in e complaint. Thompson v. Ill. Dep t of Prof l Reg., 300 F.3d 750, 753 (7 Cir. 2002; Perkins v. Silverstein, 939 F.2d 463, 466 (7 Cir Under Fed. R. Civ. P. 8(a(2, a complaint need only contain a short and plain 4

5 statement of e claim showing at e pleader is entitled to relief. The Supreme Court has interpreted at language to impose two minimal hurdles. First, e complaint must describe e claim in sufficient detail to give e defendant fair notice of what e... claim is and e grounds upon which it rests. EEOC v. Concentra Heal Servs., Inc., 496 F.3d 773, (7 Cir (citing Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007; Conley v. Gibson, 355 U.S. 41, 47 (1957. Second, e complaint s allegations must plausibly suggest at e plaintiff has a right to relief, raising at possibility above a speculative level ; if ey do not, e plaintiff pleads itself out of court. Concentra Heal, 496 F.3d at (citing Bell Atlantic, 127 S. Ct. at 1965, 1973 n.14. I. Statute of Limitations In Counts I-III, McDonough alleges at his First and Fourteen Amendment rights were violated in contravention of In ose counts, McDonough complains of discriminatory acts which allegedly took place between It is well established at e statute of limitations period for 1983 claims is two years. See Kelly v. City of Chicago, 4 F.3d 509, 511 (7 Cir Defendants argue at all claims brought pursuant to 1983 at are based on incidents at occurred prior to May 16, 2004 should be dismissed because ey are untimely. McDonough argues at because much of e Defendants actions occurred wiin e permitted time period, his claims survive. McDonough also argues at even e conduct alleged in e Complaint which occurred outside e relevant statute of limitations period is actionable under e continuing violation doctrine. It is well established at a "plaintiff can obtain relief.. for time-barred acts by linking em wi an act at is wiin e statute of limitations rough e continuing violation doctrine." See Fairley v. Andrews, 300 F. Supp. 2d 660, (N.D. Ill. 2004, citing Selan v. 5

6 Kiley, 969 F.2d 569, 564 (7 Cir In light of McDonough s allegations of a continuing violation eory in is case, see Compl. 6, a motion to dismiss any of e allegations as time-barred should not be granted at is stage of e proceedings. See Eruteva v. City of Chicago, 2005 WL , at *5 (N.D. Ill. March 9, 2005 ("Consequently, because Plaintiff s claims prior to [e statute of limitations period] may be part of a continuing violation eory, Defendant's motion to dismiss ose claims is denied.". Alough e actions occurring prior to May 16, 2004 may well turn out to be barred by e statute of limitations, we will keep em in e case at is stage of e litigation because ey may be part of a continuing violation pattern. We will allow discovery to proceed on ese allegations because, even if ey are ultimately barred by e statute of limitations, ey may well be relevant to, and part of, McDonough s proof relating to his timely claims. For ese reasons, e motion to dismiss e portions of Counts I-III pertaining to actions occurring before May 16, 2004 is denied at is time. Defendants may revisit is issue after discovery. In addition, Defendants argue at e allegations of Count IV based on incidents which allegedly occurred prior to November 16, 2005 are barred by e 180-day limitations period of Title VII because e Seven Circuit has adopted Title VII s 180 day filing period for all claims brought for a violation of e Shakman decree. For e reasons stated above, because e continuing violation eory may save ese allegations, we deny e motion to dismiss at is time. II. Conspiracy Claim 6

7 In Count III, McDonough alleges a conspiracy claim under He alleges at e City and e individual Defendants, all of whom were employed by e City at all relevant times, acted togeer wiin e scope of eir employment to conspire to deprive him of his constitutional rights. McDonough furer alleges at e Defendants acted under color of law when ey allegedly committed e acts in furerance of e conspiracy. Defendants first argue at McDonough s conspiracy claim should be dismissed under e intra-corporate conspiracy doctrine. Under e intra-corporate conspiracy doctrine, a corporation or government entity cannot conspire wi itself. Travis v. Gary Cmty. Mental Heal Ctr., Inc., 921 F.2d 108, (7 Cir. 1990; Wright v. Illinois Dep t of Children and Family Serv., 40 F.3d 1492, 1508 (7 Cir The intra-corporate conspiracy doctrine precludes members of e same entity from becoming conspirators when ey act wiin e scope of eir auority. Fairley v. Andrews, 300 F. Supp. 2d 660, 668 (N.D. Ill Because e purpose of e doctrine is to protect only routine and lawful business decisions, e Seven Circuit recognizes several exceptions to e application of e doctrine. See Jefferson v. Harvey, 2000 WL 15097, *4-5 (N.D. Ill. Jan. 5, An exception exists when employees are alleged to have been motivated by illicit purposes, as opposed to e lawful interests of e organization. See Boloun v. Williams, 2002 WL at *10-12 (N.D. Ill. Oct. 25, 2002, citing Hartman v. Board of Trustees, 4 F.3d 465, 470 (7 Cir (when defendants acted out of animus, "e interests of e corporation would have played no part in e employees' collective action". For conspiracies such as e one alleged here, involving a classic charge of retaliation, e underpinnings of e intra-corporate conspiracy doctrine do not apply. See Fairley, 300 F. Supp. 2d at In is case, McDonough has alleged at Defendants conspired to deprive 7

8 him of his constitutional rights. As Judge Darrah held in Gross v. Town of Cicero, 2006 WL at *12 (N.D. Ill., Feb. 1, 2006, [a]greeing to harass and/or retaliate against an employee is not wiin e scope of Defendants auority. Accordingly, McDonough s conspiracy claim is not barred by e doctrine of intra-corporate conspiracy. Defendants next argue at McDonough s conspiracy claim must be dismissed because he does not sufficiently plead e conspiracy's details. In order to state a claim under 1983 for conspiracy, a plaintiff must allege at least e following elements: 1 e parties; 2 e general purpose of e conspiracy; and 3 e approximate date of e conspiracy. Loubser v. Thacker, 440 F.3d 439, 443 (7 Cir. 2006; Walker v. Thompson, 288 F.3d 1005, 1007 (7 Cir Courts have held at "all at is required to state a claim of conspiracy is a simple pleading of facts from which a conspiracy may be inferred." Windsor v. Village of Lynwood WL 80455, at *4 (N.D. Ill. April 9, A plaintiff "is not required to plead wi exact specificity a conspiracy to deprive him of his constitutional rights, but raer just enough circumstantial evidence [at] may provide adequate proof of a conspiracy." Moreno v. Town of Cicero, 2002 WL , at *3 (N.D. Ill., Sept. 5, In is case, McDonough s conspiracy claim identifiers e parties alleged to have been involved in e conspiracy, e general purpose of e conspiracy, and e approximate dates involved. See Compl. 39, Therefore, e motion to dismiss e conspiracy claims in Count III is denied. III. Monell Claims Counts I, II and III are based on alleged violations of In order to state a 1983 claim, plaintiff must plead at a person acting under color of state law subjected or caused him to be subjected to e deprivation of a constitutional right by reason of a governmental policy or 8

9 custom. Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 694 (1978; City of Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985. Defendants argue at McDonough s 1983 claims should be dismissed because he has failed to allege at he has been injured by reason of a governmental policy or custom. However, e Seven Circuit has held at a single act or decision of a final policymaker can establish municipal policy. McGreal v. Ostrov, 368 F.3d 657, 685 (7 Cir. 2004, citing Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7 Cir In is case, McDonough alleges at e alleged misconduct was committed by municipal policymakers wi final auority to establish municipal policy... or had been delegated e same. Compl. 45, 52. We find at McDonough sufficiently alleges at e Defendants were policymakers such at eir actions could create Monell liability. Therefore, e motions to dismiss on is ground are denied. Defendants next argue at McDonough has not sufficiently pled a general policy and practice by e Defendants wi enough detail to survive a motion to dismiss. Despite Defendants' arguments regarding e sufficiency of McDonough s Monell pleadings, e Supreme Court has established at Monell claims are not subjected to a heightened pleading standard: "Rule 8(a(2 requires at a complainant include only `a short and plain statement of e claim showing at e pleader is entitled to relief."' Leaerman v. Tarrant County NICU, 507 U.S. 163, 168 (1993. This requirement is interpreted quite liberally: "The Federal Rules of Civil Procedure do not require a claimant to set out in detail e facts upon which he bases his claim. To e contrary, all e Rule requires is `a short and plain statement of e claim' at will give e defendant fair notice of what e plaintiffs claim is and e grounds upon which it rests." Id., citing Conley v. Gibson, 355 U.S. 41, 47 (

10 In is case, McDonough pleads at e misconduct described in his Complaint occurred pursuant to e City's policy and practice. Compl. 45, 52. The Complaint pleads at e Defendants acting under color of state law caused McDonough to be subjected to e deprivation of his constitutional rights by reason of e City s policy and practice. Therefore, McDonough has met e reshold for pleading, and e motion to dismiss e 1983 claims in Counts I, II and III is denied. IV. Claims Against The Individual Defendants Defendants argue at Counts IV and V against e individual Defendants should be dismissed because neier e Shakman consent decree nor e Illinois Whistleblower Reward and Protection Act allow for individual liability. In his response brief, McDonough agrees wi Defendants at e Illinois Whistleblower Reward and Protection Act does not allow for a cause of action against individual Defendants in eir personal capacities. Therefore, Count V is voluntarily dismissed against e individual Defendants. A. Claim For Violation Of The Shakman Decree In Count IV, McDonough alleges at Defendants discriminated against Plaintiff in e terms and conditions of his employment due to his speech against politically-favored members of e Water Department and at Defendants furer discriminated against Plaintiff in e terms and conditions of his employment due to his political affiliation and activities. Compl. 65, 66. McDonough furer alleges at [t]he conduct of Defendants described herein violated Shakman. Compl. 64. Defendants argue at McDonough s allegations fail to state a claim against e individual Defendants because ey cannot be liable in eir personal capacities for any alleged violations of e Shakman consent decree. We agree. Many courts have held at e individual 10

11 Defendants cannot be held liable in eir personal capacity for any alleged violations of e Shakman decree. See Hernandez v. O Malley, 98 F.3d 293, 294 (7 Cir. 1996; Plotkin v. Ryan, No. 99 C 53, 1999 WL , at *7 (N.D. Ill. Sept. 29, In Hernandez, e Seven Circuit held at e Shakman decree does not create personal liability. 98 F.3d at The Seven Circuit reasoned, [w]e cannot faom why a person suing to enforce e Shakman decree might want to pursue e officeholders in eir personal capacity, except for e purposes of harassment, which is hardly a reason e court should approve. Id. at 295. For ese reasons, e motion to dismiss e claims for violations of e Shakman decree against e individual Defendants is granted. V. Illinois Whistleblower Reward And Protection Act Claim In Count V, McDonough alleges a cause of action for violation of e Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/4. McDonough alleges at he was discharged and discriminated against by Defendants because of actions he took in furerance of investigating and providing assistance for a suit to recover for Defendants frauds under e Illinois False Claims Act. Complaint, Defendants argue at McDonough s claim should be dismissed because he fails to allege at a False Claims Act actually was brought, by whom it was filed, and wheer it is still pending. We disagree. A plaintiff may bring a cause of action under e Whistleblower Act, 740 ILCS 175/4(h, regardless of wheer or not e actual qui tam or False Claims Act proceeding for which he or she provided assistance,actually goes forward. See Fanslow v. Chicago Manufacturing Center, 384 F.3d 469, (7 Cir Simply put, a plaintiff may seek e protections of e 11

12 Whistleblower Act regardless of wheer a qui tam or False Claims Act proceeding has been initiated by or on behalf of e State of Illinois. Id. at In is case, McDonough alleges at he was discriminated against because of actions he took in providing assistance for a False Claims Act lawsuit regarding Defendants alleged fraud. As a result, McDonough has properly stated a cause of action under e Illinois Whistleblower Reward and Protection Act, and Defendants' motion to dismiss is Count is denied, alough is claim will be dismissed against e individual Defendants as mentioned above. VI. Writ Of Certiorari Claim Count VI is a petition for writ of certiorari and challenges certain portions of e January 24, 2006 findings and decision of e Human Resources Board of e City of Chicago. McDonough also alleges in is Count at he was denied a full and fair opportunity to make a full record before e Board. McDonough appealed e Human Resources Board s determination in e Circuit Court of Cook County, Chancery Division. The City filed a cross-claim to e appeal. In 2006, McDonough dismissed his state court action after filing his federal lawsuit, and e City s crossclaim was stayed by e state court. Defendants argue at Count VI in is case should be dismissed because of e danger at bo e state court and is Court will ultimately have to rule on e issues surrounding e Human Resource Board s decision. Defendants argue at is is a waste of judicial resources and could result in inconsistent judgments. We agree. The action currently pending, but stayed in state court, is e exact same Human Resources Board s determination at Plaintiff seeks to challenge in is Court. The state court and e federal court will be required to review e same Human Resources Board transcript, regardless of e fact at Plaintiff has widrawn his writ of certiorari in state court. 12

13 Even if is Court were to rule on Plaintiff s writ of certiorari, e state court will still have to rule on e City s cross-claim appeal at is still pending in state court. This means at e same issues surrounding at Human Resources Board s determination will be decided twice: once by e federal court and once by e state court. We consider is to be a waste of judicial resources because bo courts would have to review e lengy Human Resources Board s 14-volume hearing transcript and could possibly reach different and inconsistent conclusions involving e same facts and law. Therefore, in e interests of judicial economy and of avoiding inconsistent outcomes, Count VI of Plaintiff s Complaint is dismissed. VII. Pleading Supplemental Jurisdiction Finally, Defendants argue at Counts V and VI should be dismissed because McDonough did not properly invoke is Court s supplemental jurisdiction over his state law claims. McDonough concedes at he failed to expressly invoke is Court s supplemental jurisdiction over his state law claims. We grant McDonough leave to file an amended complaint expressly invoking is Court s supplemental jurisdiction under 28 U.S.C. 1367(a. CONCLUSION For e foregoing reasons, e motion of Defendants e City of Chicago, e Human Resources Board of e City of Chicago, Alexander Vroustouris, Richard Rice, Brian Murphy, Tommie Talley, Maureen Egan, Thomas Briatta, Michael Tierney to dismiss Plaintiff s Complaint (# 108 is granted in part and denied in part. The motion is granted as to e claims against e individual Defendants in Counts IV and V, and as to Count VI. The motion is denied in all oer respects. Plaintiff is given leave to file an amended Complaint properly invoking is 13

14 Court s supplemental jurisdiction. Plaintiff shall file such amended Complaint on or before June 24, This case is set for status on June 26, 2008 at 9:00 a.m. It is so ordered. Dated: June 6, 2008 Wayne R. Andersen United States District Court 14