O'Gorman v. City of Chi., 13–2877.
| Decision Date | 26 January 2015 |
| Docket Number | No. 13–2877.,13–2877. |
| Citation | 777 F.3d 885 |
| Parties | Kevin O'GORMAN, Plaintiff–Appellant, v. CITY OF CHICAGO, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Amy Elizabeth Paluch–Epton, Whitfield, McGann & Ketterman, Chicago, IL, for Plaintiff–Appellant.
Myriam Z. Kasper, Office of the Corporation Counsel, Jeffrey Alan Waldhoff, City of Chicago Law Department, Chicago, IL, for Defendant–Appellee.
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
Kevin O'Gorman filed suit under 42 U.S.C. § 1983 against the City of Chicago, alleging that the City violated his Fourteenth Amendment right to due process and equal protection in its actions surrounding his employment with the City. The district court granted the motion to dismiss O'Gorman's amended complaint, and O'Gorman appeals that dismissal.
As is appropriate in the context of a motion to dismiss, we take as true the facts as set forth in the complaint along with all reasonable inferences. Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 995 (7th Cir.2014). O'Gorman worked for the City of Chicago's Department of General Services from 1996 until 2007, first as a carpenter and later as a General Foreman of the General Trades. In the latter capacity, he regularly placed orders for the City with Arrow Lumber Company (“Arrow”), which was owned and operated by Donald Beal. In November 2004, the Inspector General's Office of the City began an investigation upon receiving reports from an Arrow employee that the company treated orders placed by O'Gorman differently than other orders. The complaint alleges that the investigation improperly focused on O'Gorman and protected Arrow and Beal for political reasons. We will not set forth those allegations in detail as they are ultimately irrelevant to the analysis of the issues before us, but the complaint includes allegations that Beal shredded some documents and forged other documents to cover up Arrow's fraud.
On May 7, 2007, O'Gorman was arrested and charged with theft of City property. He was placed on paid administrative leave, and on May 10 the City issued a press release announcing the charges against O'Gorman, including that he had diverted “more than $50,000 in goods from a city lumber contractor for his own use from early 2003 to 2005, and then filed false paperwork in an attempt to cover up the theft.” The information was subsequently published in the Chicago Tribune, and a link to that Tribune article was placed on the Inspector General's website. That announcement remained on the website from that date to the present.
During the summer of 2007, O'Gorman was charged by the City with violations of eleven City Personnel Rules based on the same conduct, and including alleged false statements and alleged theft and diversion of property paid for with City funds. According to the complaint, Fran Bailey, the City's Human Resources Director, informed O'Gorman's union representative that if O'Gorman did not resign he would be fired and that a hearing on the charges would be a “sham.” O'Gorman also alleged that Frank Scalise, Deputy Commissioner, and Ron Huberman, then-Chief of Staff to the Mayor and O'Gorman's immediate supervisor, told him that if he resigned, he would be reinstated once he was acquitted of the criminal charges. O'Gorman opted to resign on August 24, 2007.
Beal was also criminally charged, and pled guilty to defrauding the City. O'Gorman was ultimately acquitted of all criminal charges on January 19, 2010. He immediately requested reinstatement to his City job. According to his complaint, his attorney met with City Commissioner Judy Martinez and gave her an affidavit from Scalise stating that Scalise told O'Gorman he would be reinstated. Martinez affirmed that his application would be reviewed in light of that information and his acquittal, but he was not reinstated to his position.
O'Gorman alleges that the City refused to reinstate him because he was placed on a “Do–Not–Hire List.” The existence of the list was first made public in 2009, although the list itself was not released to the public at that time. The list consisted of names of individuals all of whom had either been terminated from City positions or had resigned in the face of allegations of wrongdoing. Individuals on the list were barred from City employment, and there was no process in place by which a person could seek removal of his name from the list. It contained over 4,500 names at one point, but in early 2011, the Inspector General's Office and the Shakman hiring monitor worked with the Mayor's office to overhaul the list. The Mayor retained sole discretion as to whether an individual was placed on the list. A Chicago Tribune article in February 2011 revealed that the list had been revised to include 218 names. Pursuant to a Freedom of Information Act request, the Better Government Association (BGA) obtained a copy of the list, and published the names, including O'Gorman's name.
The list published by the BGA merely sets forth a list of persons who are ineligible for rehire for a defined period of time, and a list of persons ineligible for an indefinite period of time. O'Gorman is on the latter list, and the only information included as to him is his department name and that he resigned in lieu of discharge. The list also set forth the criteria for deeming an employee ineligible for rehire indefinitely. It provided that a former employee was ineligible for rehire if his or her termination resulted from a discharge or from a resignation in lieu of discharge in which the employee resigns after having been served with charges. If the charges alleged criminal activity or certain actions of moral turpitude, the person was deemed ineligible for rehire indefinitely.
The City also pursued a civil case against O'Gorman under the Illinois Whistleblower Act and the Chicago False Claims Act. That case was stayed during the pendency of the criminal proceeding, but reopened upon its termination and was pending at the time of argument in this case.
We review a dismissal under Fed.R.Civ.P. 12(b)(6)de novo. Ball v. City of Indianapolis, 760 F.3d 636, 642–43 (7th Cir.2014). A complaint need not contain detailed factual allegations, but must contain sufficient factual matter, accepted as true, to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Mann v. Vogel, 707 F.3d 872, 877 (7th Cir.2013). The allegations must be sufficient to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A complainant can plead himself out of court by including factual allegations that establish that the plaintiff is not entitled to relief as a matter of law. Hollander v. Brown, 457 F.3d 688, 691 n. 1 (7th Cir.2006). Thus, although a plaintiff need not anticipate or overcome affirmative defenses such as those based on the statute of limitations, if a plaintiff alleges facts sufficient to establish a statute of limitations defense, the district court may dismiss the complaint on that ground. Cancer Fndtn., Inc. v. Cerberus Capital Management, LP, 559 F.3d 671, 674–75 (7th Cir.2009).
O'Gorman asserts on appeal that the district court erred in dismissing the amended complaint because he adequately alleged violations of due process and equal protection that are actionable under 42 U.S.C. § 1983. Specifically, in his amended complaint he alleged that the City deprived him of his property and liberty interests in employment without due process, and that he was selectively prosecuted and treated less favorably than similarly situated job applicants when he sought reinstatement in 2010 in violation of the equal protection clause. We will consider these claims in turn.
With respect to the due process claims based on a property interest, the district court identified five allegedly separate claims raised by O'Gorman: (1) his loss of City employment in July 2007 without due process; (2) his loss of all future City employment without due process when O'Gorman was placed on the “Do–Not–Hire List” in July 2007; (3) his “second loss” of future City employment without due process around 2010 or 2011 when the list was revised but continued to include his name; (4) his loss of employment as a teacher with the City Colleges in August 2008 without due process; and (5) the City's failure to rehire him without due process in early 2010 after he was acquitted of criminal charges. On appeal, he makes no argument related to his employment as a teacher with the City Colleges, and therefore we need not address that claim at all.
As to O'Gorman's challenge to the “forced” resignation in 2007, the district court held that the claim should be dismissed based on the statute of limitations. The limitations period for § 1983 claims is based in state law, and the statute of limitations for § 1983 actions in Illinois is two years. Moore v. Burge, 771 F.3d 444, 446 (7th Cir.2014); Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Therefore O'Gorman's due process claims had to be brought within two years. The date at which the claim accrues and thus starts the running of the limitations period is a matter of federal law, and generally occurs when a plaintiff knows the fact and the cause of an injury. Moore, 771 F.3d at 447; Wallace, 549 U.S. at 388, 127 S.Ct. 1091. The amended complaint alleged that at the time of his resignation in 2007, O'Gorman had been informed that he would receive only a sham hearing and that the decision to terminate him was preordained. Therefore, the district court held that, by his own allegations, O'Gorman should have known in 2007 that his constitutional rights to due process were being violated, and that he had two years to pursue a claim based on that...
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