Bonnstetter v. City of Chi.

Decision Date03 February 2016
Docket NumberNos. 14–2977,14–3573.,s. 14–2977
Citation811 F.3d 969
Parties Matthew BONNSTETTER, et al., Plaintiffs–Appellants, v. CITY OF CHICAGO, a Municipal Corporation, et al., Defendants–Appellees. Garrett Fishwick, Plaintiff–Appellant, v. City of Chicago, a Municipal Corporation, Defendant–Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Daniel Q. Herbert, Law Offices of Daniel Q. Herbert and Associates, Chicago, IL, for PlaintiffAppellant.

Jonathon D. Byrer, City of Chicago Law Department, Trisha K. Tesmer, Whitney Kendall Siehl, Cassiday Schade LLP, Chicago, IL, for DefendantAppellee.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge.

Eight plaintiffs-appellants in two cases, consolidated here on appeal (collectively the "Applicants"), applied for the position of police officer with the Chicago Police Department ("CPD"). All of the Applicants were, for various reasons, disqualified from consideration for the position. They then sued the City of Chicago (the "City"), claiming violations of the City's 2011 Hiring Plan (the "Hiring Plan"), violations of the Settlement Order and Accord entered in Shakman v. Democratic Organization of Cook Co., 481 F.Supp. 1315 (N.D.Ill.1979) (the "Shakman Accord"), and equal protection violations under the Illinois Constitution. In both cases, the district courts granted the' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. All of the Applicants have limited their appeals to the dismissals of their Shakman claims. For the following reasons, we affirm the dismissals in both cases.


The Shakman Accord resulted from resolution of a series of political patronage litigation.1 The Shakman Accord was designed, in general, to eliminate political considerations in employment decisions made by the City. Pursuant to the Shakman Accord, the City agreed to create and implement a hiring plan to effectuate the goal of eradicating political patronage. Shakman "adds speech and political affiliation to the list" of impermissible bases of employment discrimination delineated by Title VII of the Civil Rights Act of 1964. Smith v. City of Chicago, 769 F.2d 408, 410 (7th Cir.1985). Specifically, the consent decree entered June 20, 1983, in Shakman v. Democratic Org., 569 F.Supp. 177 (N.D.Ill.1983), precludes the City from "conditioning, basing or knowingly prejudicing or affecting the hiring of any person as a Governmental Employee (other than for Exempt Positions), upon or because of any political reason or factor including, without limitation, any prospective employee's political affiliation, political support or activity, political financial contributions, promises of such political support, activity or financial contributions, or such prospective employee's political sponsorship or recommendation." Shakman, 569 F.Supp. at 179.

In the case of Matthew Bonnstetter, et al. v. City of Chicago, et al. (No. 14–2977), the plaintiffs, including Matthew Bonnstetter ("Bonnstetter"), Peter Slowik ("Slowik"), Ilir Shemitraku ("Shemitraku"), Paul Sauseda ("Sauseda"), David Gutierrez ("Gutierrez"), Andrea Buttita ("Buttita"), and Tareq Khan ("Khan"), filed suit against defendants the City and CAPFS/LEPFS Joint Venture ("CAPFS"). Against the City, these plaintiffs alleged violations of the Hiring Plan, violations of the Shakman Accord, equal protection violations under the Illinois Constitution, and conspiracy under both 42 U.S.C. §§ 1983 and 1985(3). As against CAPFS, these plaintiffs alleged one count of conspiracy, pursuant to 42 U.S.C. § 1983.

In the case of Garrett Fishwick v. City of Chicago (No. 143573), the sole plaintiff is Garrett Fishwick ("Fishwick"), and the sole defendant is the City. By his complaint, Fishwick alleges age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq., and violations of the Shakman Accord and the Hiring Plan.

The facts of these consolidated cases are taken from the complaints, which we are required to accept as true at this stage in the cases. Golden v. State Farm Mut. Auto. Ins. Co., 745 F.3d 252, 253 (7th Cir.2014). The CPD is responsible for hiring officers, and the City's Department of Human Resources Employment Services Division facilitates that hiring. In October 2010, the CPD published a job announcement for the police officer position. According to the announcement, the hiring process entailed a written examination, a medical examination, a background investigation, a psychological examination, a drug screening, a physical fitness test, and other application procedures. The City contracted with CAPFS to perform the psychological testing.

If an applicant passed the written examination, the applicant was placed on an eligibility referral list and given a lottery number. When a position became vacant, the applicant would proceed with the other portions of the application process, such as a medical examination, psychological examination, and drug screening, according to lottery number position. When the Applicants in these cases passed the written examination, they were given a random lottery number, and proceeded with the application process.

CPD removed Applicants Bonnstetter, Gutierrez, and Slowik from eligibility based on the results of their psychological examinations. In his complaint, Slowik alleges that he was asked questions during his psychological examination regarding his veteran status, his experiences while serving in the United States Marine Corps, his combat record, and his beliefs and experiences regarding war. Two Applicants, Sauseda and Fishwick, were removed from eligibility when they reached the proscribed age limit of 40 during the application process. The CPD removed two Applicants, Shemitraku and Khan, based upon their failure of the polygraph examination. Although Applicant Buttita provided CPD with transcripts reflecting her sufficient college credits, CPD removed Buttita from eligibility because she did not meet the education requirements for the position.

Applicants Bonnstetter and Slowik, with plaintiff Alexander Muniz, filed their original complaint on June 3, 2013, naming the City and CAPFS as defendants. Their First Amended Complaint ("FAC") was filed October 14, 2013, adding Shemitraku, Sauseda, Gutierrez, Buttita, and Khan as plaintiffs, and removing Alexander Muniz as a plaintiff. Both the City and CAPFS moved under Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)") to dismiss the FAC for failure to state a claim. The district court granted the motions, finding: Applicants Bonnstetter, Shemitraku, Sauseda, Gutierrez, Buttita, and Khan failed to state a Shakman claim; Bonnstetter's, Gutierrez's, and Sauseda's Shakman claims were barred by the statute of limitations; and Slowik's Shakman claim was barred by res judicata.

Applicant Fishwick filed his complaint on April 9, 2014, naming the City as the sole defendant. As in the other case, the district court granted the City's Rule 12(b)(6) motion to dismiss, finding Fishwick failed to state a claim and failed to file within the statute of limitations period.


We review the district courts' granting of the motions to dismiss under Rule 12(b)(6)de novo, accepting all well-pleaded facts as true and drawing all reasonable inferences in favor of the Applicants, the non-moving parties. Golden, 745 F.3d at 255. A Rule 12(b)(6) motion challenges the sufficiency of the complaint itself. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990) (citation omitted). To state a claim, a complaint must first provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The statement of the claim must sufficiently give "fair notice of what the ... claim is and the grounds upon which it rests" to the defendants. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Additionally, the complaint's factual allegations must raise the claim above a mere "speculative level." Id. (citation omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citations, quotations, and brackets omitted).

A. Conspiracy Claim Against CAPFS

Preliminarily, because the Applicants failed to address any argument in their opening brief as against CAPFS, they have waived any such arguments or claims. Sere v. Bd. of Tr., 852 F.2d 285, 287–88 (7th Cir.1988). Specifically, the Applicants unilaterally limited their appeal to their Shakman claims, explicitly excluding their conspiracy claims. The only claim made against CAPFS is for conspiracy. But the Applicants failed to address or challenge the dismissal of the conspiracy claim in their appeal, and have thereby waived any claim on appeal.

B. Shakman Claims Against the City

The Applicants complain that the City failed to utilize a "transparent" hiring process, allowing the City to manipulate the hiring process in an impermissible way. Although labeled a Shakman claim, the Applicants' theory does not constitute a genuine claim under Shakman. To assert a viable Shakman Accord violation, the Applicants must allege that a political reason or factor was the cause of the adverse employment action. See, e.g., Shanahan v. City of Chicago, 82 F.3d 776, 780 (7th Cir.1996) ; Cusson–Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir.1992) ; Smith, 769 F.2d at 410. Put plainly, the Shakman Accord prohibits political discrimination in employment, and the basis of a Shakman claim must be impermissible political discrimination.

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