Spalding v. City of Chi.

• Decision Date: 10 March 2014
• Docket Number: 12 C 8777
• Citation: 24 F.Supp.3d 765
• Parties: Shannon Spalding and Daniel Echeverria, Plaintiffs, v. City of Chicago, Juan Rivera, Debra Kirby, James O'Grady, Nicholas Roti, Kevin Sadowski, Deborah Pascua, Adrienne Stanley, Maurice Barnes, Robert Cesario, Joseph Salemme, and Thomas Mills, Defendants.
• Court: U.S. District Court — Northern District of Illinois

24 F.Supp.3d 765

Shannon Spalding and Daniel Echeverria, Plaintiffs

v.City of Chicago, Juan Rivera, Debra Kirby, James O'Grady, Nicholas Roti, Kevin Sadowski, Deborah Pascua, Adrienne Stanley, Maurice Barnes, Robert Cesario, Joseph Salemme, and Thomas Mills, Defendants.

12 C 8777

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

Signed March 10, 2014

Amanda C. Antholt, Christopher Rudolf Smith, Emily J. Stine, James M. Baranyk, Robert Wade Johnson, Smith, Johnson & Antholt, LLC, Chicago, IL, for Plaintiffs.

Alan Sterling King, Francesco Michele Nardulli, Noreen H. Cull, Drinker Biddle & Reath LLP, Arlene Esther Martin, City of Chicago Department of Law, Scott J. Jebson, Christopher A. Wallace, Chicago, IL, for Defendants.

Memorandum Opinion and Order

Gary Feinerman, United States District Judge

Shannon Spalding and Daniel Echeverria, both officers with the Chicago Police Department (“CPD”), brought this suit under 42 U.S.C. § 1983 and Illinois law against the City of Chicago and eleven other CPD officers. The amended complaint alleges that Defendants violated the First Amendment and the Illinois Whistleblower Protection Act, 740 ILCS 174/15, by conspiring to retaliate and actually retaliating against Plaintiffs for reporting criminal misconduct by other CPD officers to the FBI and for speaking to the media about this lawsuit. Doc. 44. The City and nine of the officers (collectively, “Chicago Defendants”) have moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), and the two other officers, Juan Rivera and Debra Kirby, have adopted that motion and filed separate Rule 12(b)(6) motions. Docs. 57, 59–60. The motions to dismiss are denied.

Background

In considering the motions to dismiss, the court assumes the truth of the amended complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012). The court must consider “documents attached to the [amended] complaint, documents that are critical to the [amended] complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Plaintiffs' briefs opposing dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012). The following facts are set forth as favorably to Plaintiffs as these materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir.2012). The court's recitation of these facts should not be taken as indicating the court's belief that Plaintiffs' allegations of misconduct are true and, by the same token, that disclaimer should not be taken as indicating the court's belief that the allegations are false. The court does not know at this point whether Plaintiffs' allegations of misconduct are entirely true, partly true and partly false, or entirely false.

Spalding and Echeverria began their careers as CPD officers in 1996 and 1999, respectively. Doc. 44 at ¶¶ 17–18. In May 2006, they were assigned to the Narcotics Division, Unit 189, where they combatted drug crimes by developing confidential informants, obtaining search warrants, and conducting conspiracy investigations. Id . at ¶ 19. While working on an undercover narcotics investigation in 2007, Plaintiffs discovered that Sergeant Ronald Watts and other CPD officers were extorting drug dealers by demanding payments in exchange for protecting them from arrest and prosecution. Id. at ¶¶ 20–22. In 2007, while off-duty, Plaintiffs reported this illegal activity to Special Agent “P.S.” of the FBI's public corruption unit. Id. at ¶¶ 23–24. Plaintiffs met with P.S. intermittently in 2008 while off-duty to discuss new information they had learned about Sergeant Watts. Id. at ¶ 24. When the FBI asked Plaintiffs to spend more time assisting with the case, Plaintiffs responded that they would if the investigation was conducted through the CPD, so as not to encroach upon their professional time. Id. at ¶ 25.

In August 2008, FBI special agents met with the chief of the CPD's Internal Affairs Division (“IAD”) regarding the Watts case and then informed Plaintiffs that they would be joining the federal investigation—known as Operation Brass Tax—in their official capacity as police officers. Id. at ¶¶ 26–28. Although Operation Brass Tax and Plaintiffs' involvement therein were confidential, certain CPD command staff were informed, including the Superintendent of Police; Defendant Debra Kirby, who then was Deputy Superintendent; and the IAD Chief, a post later assumed by Defendant Juan Rivera. Id. at ¶¶ 27–28. Although they remained assigned to the Narcotics Division, Plaintiffs were detailed to Detached Services, Unit 543, and reported directly to FBI headquarters. Id. at ¶ 29. During the time Plaintiffs worked on Operation Brass Tax, they were encouraged by the CPD command staff to develop narcotics cases, which overlapped with their work on Operation Brass Tax. Id. at ¶ 30.

Some time later, information regarding Plaintiffs' reporting misconduct by another CPD officer and their involvement in the FBI investigation was leaked within the CPD and became known to Defendant James O'Grady, Commander of the Narcotics Division.Id. at ¶¶ 31–32. On or about August 17, 2010, in the course of developing a narcotics case, Plaintiffs submitted paperwork seeking O'Grady's approval of a confidential informant. Id. at ¶ 34. Although O'Grady initially approved the application, he rescinded his approval after learning that the application had been submitted by Plaintiffs. Ibid. O'Grady then informed supervising personnel in the Narcotics Division that Plaintiffs were “rats” and ordered them to no longer work with or assist Plaintiffs. Id . at ¶ 35. By interfering with Plaintiffs' ability to develop narcotics cases, O'Grady intentionally prohibited Plaintiffs from earning overtime pay. Id. at ¶ 36. Other officers in the Narcotics Division were able to use evidence gathered by Plaintiffs to develop cases and earn overtime pay. Id. at ¶ 37.

On one or more occasions, several of the individual defendants met to discuss how they would “handl[e] or treat[ ]” Plaintiffs. Id. at ¶ 38. During one meeting, O'Grady referred to Plaintiffs as “rats,” stated that he did not want them in his unit, and added words to the effect of, “God help them if they ever need help on the street, it ain't coming.” Id. at ¶¶ 38–39. Defendant Nicholas Roti, the head of the Bureau of Organized Crime, which includes the Narcotics Division, was present at this meeting, concurred with O'Grady, encouraged retaliation against Plaintiffs, and would not allow Plaintiffs to work in any unit in his bureau. Id. at ¶¶ 40–43. Plaintiffs were informed that none of the “bosses” wanted them in their units and that their “careers are over.” Id. at ¶ 44.

Around late May 2011, Kirby received a call from Beatrice Cuello, the Deputy Superintendent of Detached Services, seeking confirmation that Plaintiffs were working on an undercover investigation and that the necessary paperwork was in place. Id. at ¶ 46. Despite her knowledge of Plaintiffs' detail to work on Operation Brass Tax, Kirby told Cuello that she did not know Plaintiffs or of their involvement with any investigation. Id. at ¶ 47. Cuello was thus led to believe that Plaintiffs had lied about their involvement in the FBI investigation, and she removed Plaintiffs from Detached Services. Id. at ¶ 48.

O'Grady and Roti forbade Plaintiffs from returning to the Narcotics Division or any other division in the Bureau of Organized Crime. Id. at ¶¶ 43, 49. Having been labeled “rats,” Plaintiffs lost their specialized assignments, take-home vehicles, weekends and holidays off, and ability to work overtime. Id. at ¶ 50. Plaintiffs were then detailed to the Police Academy for three weeks, during which they did little more than sit idly at their desks. Id. at ¶¶ 51–53. Plaintiffs complained to Rivera, who by that time had become IAD Chief, about the retaliatory reassignment to the Police Academy, but Rivera did not take any action. Id. at ¶ 54.

From July 2011 through March 2012, Plaintiffs were assigned to the Inspection Division, Unit 126, under the immediate supervision of Defendant Deborah Pascua. Id. at ¶¶ 55–56. Pascua called Plaintiffs “rat motherf---ers,” told them she did not want them in her unit, and told others in the unit not to talk to Plaintiffs because they were “rats.” Id. at ¶¶ 57–58. Pascua also threatened to put a false case on Plaintiffs, saying: “[F]--- them from narcotics ... I'm a lawyer and know how to put a case together ... I'm gonna work on getting them f---ing launched.” Id. at ¶ 60. Pascua rarely gave Plaintiffs legitimate assignments and often forced them to chauffeur her on personal errands.Id. at ¶ 59.

On September 13, 2011, Plaintiffs informed their commanding officer, Defendant Adrienne Stanley, of the ongoing retaliation and hostile work environment, to which Stanley replied, “I don't want to hear this, I don't want to know.” Id. at ¶ 61. Stanley failed to initiate a Complaint Register investigation into the retaliation, as required by CPD policy. Id. at ¶ 62. Defendant Kevin Sadowski joined Pascua's “campaign” by repeatedly attempting to lodge false allegations of wrongdoing against Plaintiffs. Id. at ¶ 64. Rivera knew of this ongoing retaliation and refused to initiate an IAD investigation into the matter. Id. at ¶ 63.

In October 2011, Plaintiffs resumed their involvement with Operation Brass Tax and continued to work with the FBI until Sergeant Watts and Officer Kallat Mohammed were indicted in February 2012. Id. at ¶¶ 66–67. After the investigation concluded, Roti prohibited Plaintiffs from returning to the Narcotics Division or any other division in Organized Crime, which resulted in Plaintiffs being forced to return to the Inspection Division, where they were subjected to harassment, not given assignments, and made to sit idly for up to eight hours a day. Id. at ¶¶ 68–69, 72. Spalding...