Opp v. Devine

• Decision Date: 15 May 2009
• Docket Number: No. 08 C 6120.,08 C 6120.
• Citation: 621 F.Supp.2d 635
• Parties: Christine A. OPP, Plaintiff, v. Richard A. DEVINE, in his individual capacity; Anita Alvarez, in her official capacity; Robert J. Milan, in his individual capacity; Bernard J. Murray, in his individual capacity; John G. Murphy, in his individual capacity; The Office of the State's Attorney of Cook County, an agency of the State of Illinois; The County of Cook, an Illinois municipal corporation, body politic and unit of local government; and The Cook County Board of Commissioners in their official capacity, Defendants.
• Court: U.S. District Court — Northern District of Illinois

621 F.Supp.2d 635

Christine A. OPP, Plaintiff, v. Richard A. DEVINE, in his individual capacity; Anita Alvarez, in her official capacity; Robert J. Milan, in his individual capacity; Bernard J. Murray, in his individual capacity; John G. Murphy, in his individual capacity; The Office of the State's Attorney of Cook County, an agency of the State of Illinois; The County of Cook, an Illinois municipal corporation, body politic and unit of local government; and The Cook County Board of Commissioners in their official capacity, Defendants.

No. 08 C 6120.

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

May 15, 2009.

Frank B. Avila, Avila Law Group, Chicago, IL, for Plaintiff.

Patrick T. Driscoll, Jr., Gregory E. Vaci, Paul Anthony Castiglione, Cook County State's Attorney, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

ELAINE E. BUCKLO, District Judge.

Plaintiff brought a three count complaint asserting violations of the consent decree entered in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D.Ill.1979) (Count I), violations of the Age Discrimination in Employment Act, 29 U.S.C. § 626 ("ADEA") (Count II), and "punitive discharge" (Count III) against all defendants.¹ Defendants moved to dismiss the complaint² pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6), and moved for sanctions pursuant to Fed.R.Civ.P. 11. This opinion resolves both motions, as well as plaintiff's motion to amend her complaint.

I.

Plaintiff was an Assistant State's Attorney employed by defendant Office of the State's Attorney of Cook County ("OSA") from January of 1997 to February of 2007. At a meeting on February 16, 2007, when plaintiff was fifty-seven years old, defendants Murphy and Murray informed plaintiff that her employment was being terminated as a result of budget cuts mandated by defendant Cook County Board of Commissioners (the "Board"). Plaintiff claims that the proffered reason for her termination was pretextual. She does not dispute that OSA reduced its workforce as a result of countywide budget cuts. She alleges, however, that she was selected for termination over less qualified or equally qualified peers based on 1) her lack of a "political sponsor" with sufficient "clout" to have her name removed from the termination list; 2) her age; and 3) her refusal to go along with an alleged unlawful scheme proposed by defendant Cassidy in August of 2006.

Defendants argue that defendant Board is a non-suable entity, and that defendants Alvarez and OSA are immune from liability under the Eleventh Amendment for the Shakman and punitive discharge claims.³ Defendants also argue that plaintiff's Shakman claim, which seeks a monetary award for asserted violations of the consent decree entered in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D.Ill.1979), should be dismissed against all defendants because 1) individual defendants cannot be held liable for violations of the Shakman order, and 2) the Shakman order does not provide a legal basis for a damages claim. Defendants next argue that the ADEA claim must be dismissed against the individual defendants because individual supervisors who are not otherwise employers cannot be sued under ADEA. Finally, defendants argue that plaintiff's "punitive discharge" claim does not state a cause of action. Defendants seek sanctions on the grounds that plaintiff objectively lacked a reasonable basis for bringing any of these claims against the state agent defendants,⁴ for bringing the Shakman and ADEA claims against the individual defendants, and for bringing the "fictional" claim of punitive discharge.

II. Defendant's Motion to Dismiss

A motion to dismiss tests the sufficiency of a complaint, not its merits. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). I must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir.2006). The plaintiff must, nevertheless, allege sufficient factual material to suggest plausibly that she is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).

A. The Board as Defendant

Plaintiff concedes that defendant Board is a non-suable entity and joins defendants' motion to dismiss all claims against this defendant. The motion is granted.

B. Plaintiff's "Punitive Discharge" Claim

Plaintiff concedes that this count does not state a cause of action and joins defendants' motion to dismiss Count III in its entirety. This motion is also granted.

C. Plaintiff's Shakman claim

Plaintiff alleges that "defendants' actions in terminating Plaintiff's employment," while less qualified or equally qualified employees with "political sponsorship" were not terminated, violates the consent decree issued in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D.Ill.1979). The Shakman order enjoined certain government employers from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." Id. at 1358.⁵

Defendants raise several arguments for the dismissal of plaintiff's Shakman claim. First, as to defendants OSA and Alvarez, defendants assert Eleventh Amendment immunity under Garcia v. City of Chicago, 24 F.3d 966 (7th Cir.1994). In Garcia, the Seventh Circuit held:

The Eleventh Amendment prohibits federal courts from deciding suits brought by private litigants against states or their agencies, and that prohibition extends to state officials acting in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Whether a particular official is the legal equivalent of the State itself is a question of that State's law, Santiago v. Daley, 744 F.Supp. 845, 845 & n. 1 (N.D.Ill.1990), and the Illinois Supreme Court decided in 1990 that State's Attorneys are state officials. Ingemunson v. Hedges, 133 Ill.2d 364, 140 Ill.Dec. 397, 400, 549 N.E.2d 1269, 1272 (1990) (State's Attorneys are state, not county, officials).

Id. at 969. Plaintiff does not deny that state agents are generally immune from suit in federal court under Garcia. Instead, she argues that Garcia was wrongly decided because state's attorneys should be considered agents of the county, not the state. I am not at liberty to disregard controlling precedent, however, and plaintiff advances no colorable theory under which her Shakman claim against OSA and Alvarez survives Garcia.

Plaintiff's citation to EEOC v. Board of Regents of the University of Wisconsin System, 288 F.3d 296 (7th Cir.2002), is puzzling. In plaintiff's words, the Board of Regents court "reaffirmed its authority to determine whether or not a government agency is an office of the state, or, alternatively, the local government." Plaintiff does not direct me to any portion of the Board of Regents decision that purportedly articulates that proposition. In Board of Regents, there was apparently no dispute that the defendant was an arm of the state. The Eleventh Amendment issue in that case related to whether the EEOC's action on behalf of four individuals should be considered an individual lawsuit (in which case the defendant was entitled to sovereign immunity) or an action by a federal agency (in which case it was not). The court allowed the case to proceed because it concluded that the suit was properly characterized as an action brought by a federal agency, not because it concluded, as plaintiff wishfully suggests, that the defendant was not an arm of the state. Id. at 299.

Plaintiff's citation to Mackey v. Stanton, 586 F.2d 1126 (7th Cir.1978), is similarly unavailing because the Mackey court—like the Garcia court—looked to state law to establish whether the agency defendant was an arm of the state or local government. 586 F.2d at 1130-31. As Garcia observed, the law of Illinois provides that Illinois State's Attorneys are state officials. 24 F.3d at 969 (citing Ingemunson v. Hedges, 133 Ill.2d 364, 140 Ill.Dec. 397, 400, 549 N.E.2d 1269, 1272 (1990)). Mackey offers plaintiff no escape from these dispositive holdings.⁶

Based on the foregoing, I conclude that the Eleventh Amendment immunizes defendants Alvarez and OSA from liability for plaintiff's Shakman claim.

Defendants next argue, and plaintiff concedes, that individual defendants cannot be held liable in their individual capacities for any alleged violations of the Shakman consent decree. Accordingly, the Shakman claim is also dismissed as to the individual defendants.

This leaves only defendant Cook County as potentially liable for the violation plaintiff alleges in Count I. As noted above, defendants argue that the consent judgment in Shakman does not provide an independent cause of action for damages, citing Everett v. Cook County Board of Commissioners, 2008 WL 94791 at *4 (N.D.Ill., Jan. 8, 2008) (Kendall, J.). Defendants misread Everett. Although the court in Everett indeed observed that "Shakman proceedings are equitable, typically seek immediate injunctive relief, and confer no right to a jury trial," it specifically rejected the argument that the Shakman consent decrees establish no independent federal cause of action. Everett, 2008 WL 94791 at *4. In particular, the Everett court noted that jurisdiction over claims seeking to enforce the Shakman consent decrees (as opposed to claims seeking to modify the decrees), is not limited to the court that originally issued the decrees, citing Perlman v. Cook County Bd. Of Commissioners, 2007 WL 1302973 at *5 (N.D.Ill., May 2, 2007) (Manning, J.) ("a plaintiff may sue to vindicate a right established by the Shakman consent decree"), and may be brought as independent civil actions. See id. Indeed, a November 30, 2006 Supplemental...