Sroga v. Preckwinkle

Decision Date24 January 2017
Docket NumberNo. 14 C 06594,14 C 06594
PartiesKevin Sroga, Plaintiff, v. Toni Preckwinkle, Arnold Randal, Lisa Lee, Michelle Gage, Daniel Betts, John Jekot, and the Cook County Forest Preserve District, Defendants.
CourtU.S. District Court — Northern District of Illinois

Judge Edmond E. Chang


Kevin Sroga used to work as an Aquatic Center Manager at a recreational swimming facility run by the Cook County Forest Preserve District. R. 63, Second Am. Compl. ¶¶ 11, 30.1 In August 2012, the District fired Sroga, which led him to bring this suit against County and District officials and employees, as well as the District itself. See Second Am. Compl. Sroga alleges that, when he tried to unionize Aquatic Center employees, the Defendants retaliated against him, in violation of the First Amendment and Illinois state law.2 Id. The Defendants now move to dismiss Sroga's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for failure to state a claim and for lack of subject-matter jurisdiction. See R. 65, Defs.' Mot. to Dismiss. For the reasons discussed below, the Defendants' motion to dismiss is granted in part and denied in part.

I. Background

For purposes of this motion, the Court accepts as true the allegations in the Second Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Sroga began working for Defendant Cook County Forest Preserve District as a seasonal lifeguard in 2011. Second Am. Compl. ¶ 21. The next year, the District promoted Sroga to Aquatic Center Manager at one of the three aquatic facilities run by the District. Id. ¶¶ 11, 30. Around this time, the District also hired Defendants Michelle Gage, Daniel Betts, and John Jekot. Id. ¶¶ 16, 31. Betts and Jekot oversaw the District's Aquatic Centers and were Sroga's immediate supervisors, and Gage served as the District's Director of Human Resources. Id. ¶¶ 8-10, 31-32, 50.

During the 2011 and 2012 aquatic seasons, the District enacted new rules and regulations for Aquatic Center employees. Second Am. Compl. ¶¶ 19, 33. The new rules limited the number of hours that Aquatic Center employees could work at the Aquatic Centers, as well as at any other job they held down. Id. ¶¶ 34, 37. Lifeguards also could have their shifts cut short or be placed "on call" under the new rules. Id. ¶ 35. Sroga alleges that these rules displeased many Aquatic Center employees and lowered employee morale. Id. ¶¶ 27, 39.

In response to all of this, Sroga tried to organize Aquatic Center employees into a union. Second Am. Compl. ¶ 40. Sroga's efforts included speaking directly to Aquatic Center staff about unionizing, as well as to union representatives at the S.E.I.U. Local 73. Id. ¶¶ 41-42. Sroga also met with Defendant Lisa Lee, a Labor Relations Attorney for the District. Id. ¶¶ 44-45. During that meeting, Sroga toldLee about the issues plaguing the Aquatic Center—including "the District's failure to properly safeguard the facility, hiring of inadequate staffers, hiring of unqualified staffers, promoting and retention of staff members that should not be in a role of responsibility or performing supervisory functions, and the effect of the policies and procedures on employee morale and the District's Lifeguard Service." Id. ¶ 47. Sroga also informed Lee that these issues had prompted him to try and organize Aquatic Center employees. Id. ¶ 49.

According to Sroga, Lee immediately relayed her conversation with Sroga—including, "[o]n information and belief," Sroga's efforts to unionize—to Betts, Jekot, and Gage. Second Am. Compl. ¶¶ 50-51. The next morning, Jekot called Sroga to schedule a meeting for later that day. Id. ¶ 52. When Sroga asked what the meeting was about, Jekot responded: "We [Betts and Jekot] need to talk to you. ... We have to have a meeting." Id. ¶ 53. Sroga thereafter called Lee to see if she knew what was going on, but she denied any knowledge of the meeting. Id. ¶¶ 54-56. (Sroga (on information and belief) alleges that Lee did know that "the District's true intentions were to [fire] Sroga ... ." Id. ¶ 57.)

At the meeting, Jekot and Betts handed Sroga a termination letter. Second Am. Compl. ¶¶ 59-60. The letter did not state the reason(s) for Sroga's firing. Id. ¶ 65. (Neither did Sroga receive any other documents at the time that may have helped explain his termination. Id.) When Sroga asked why he was fired, Betts told him, "We don't have to give you any reasons." Id. ¶ 63; see also id. ¶ 66 ("Sroga was not given any reasons for his discharge.").

Several weeks later, Sroga showed-up unannounced at the District's General Headquarters. Second Am. Compl. ¶ 77. He wanted access to his personnel file so that he could find out the reasons for the firing. Id. ¶ 78. Sroga alleges that he was not allowed to see his personnel file and was told that he would have to make an appointment with the Legal Department to do so, which he eventually did. Id. ¶¶ 80-81. Though the file contained "purported deficiencies in [his] work performance," Sroga alleges that no one had ever discussed those deficiencies with him before the firing. Id. ¶ 82. (Indeed, the District never took disciplinary action against Sroga during his tenure as an Aquatic Center employee. Id. ¶¶ 26, 76.) He also alleges that those deficiencies were pretextual, and that Jekot's anti-union animus was the driving force behind his termination. Id. ¶ 83.

Based on these allegations, Sroga brings nine counts against the Defendants in the Second Amended Complaint: (1) a Section 1983 claim based on violating the First Amendment's freedom-of-association clause against Jekot (Count One); (2) supervisory-liability claims based on the "cat's paw" doctrine against Betts and Gage (Counts Two and Three, respectively); (3) a municipal liability claim based on the "cat's paw" doctrine against the District (Count Four); (4) a freedom-of-association claim based on Article I, Section 5 of the Illinois Constitution against Jekot, Betts, and Gage (Count Five); (5) an Illinois common law retaliatory discharge claim against the District (Count Six); (6) an Illinois common law intentional interference with prospective economic advantage claim against Jekot (Count Seven); (7) a respondeat superior claim under Illinois common law againstthe District (Count Eight); and (8) an indemnification claim under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/9-102 (Count Nine). The Defendants now move to dismiss Counts Five and Six for lack of subject matter jurisdiction and the remaining counts for failure to state a claim. See Defs.' Mot. to Dismiss; R. 66, Defs.' Br.

II. Standard

The Defendants bring their motion under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion tests whether the Court has subject-matter jurisdiction, Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999), while a Rule 12(b)(6) motion tests the sufficiency of the complaint, Hallinan, 570 F.3d at 820; Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). When reviewing a motion to dismiss under either rule, the Court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).

Under Rule 8(a)(2), a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal quotation marks and citation omitted). These allegations "must be enough to raise a right to relief above thespeculative level," id., and must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The allegations entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678-79.

In order to survive a Rule 12(b)(1) motion, the plaintiff must establish that the district court has jurisdiction over an action. United Phosphorous, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). "If subject matter jurisdiction is not evident on the face of the complaint, [then] the ... Rule 12(b)(1) [motion is] analyzed [like] any other motion to dismiss, by assuming for the purposes of the motion that the allegations in the complaint are true." United Phosphorus, 322 F.3d at 946. But "if the complaint is formally sufficient but the contention is there that there is in fact no subject matter jurisdiction, [then] the movant may use affidavits and other material to support the motion." Id. (emphasis in original).

III. Analysis
A. Count One (Jekot)

Count One alleges that Jekot violated the First and Fourteenth Amendments by firing Sroga for trying to union-organize the Aquatic Center staff. Second Am. Compl. ¶¶ 89-111. In response, Jekot contends that Count One should be dismissed, asserting that "[t]here is no factual substantiation for the conclusorystatement that Jekot terminated [Sroga] because of anti-union animus." Defs.' Br. at 6.

To make out a prima facie case for First Amendment retaliation, Sroga must establish that: (1) he was engaged in constitutionally protected activities; (2) he suffered a deprivation likely to deter associational activity; and (3) the First Amendment activity was a motivating factor in the employer's decision. Redd v. Nolan, 663 F.3d 287, 294 (7th Cir. 2011); Greene v. Doruff, 660 F.3d 975, 977 (7th Cir. 2011); Campion, Barrow & Assocs., Inc. v. City...

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