Valdez v. City of Chi.
| Decision Date | 30 July 2020 |
| Docket Number | Case No. 20 C 388 |
| Parties | OSVALDO VALDEZ, Plaintiff, v. CITY OF CHICAGO, a local unit of government; EDDIE JOHNSON, in his official and individual capacities; RAHM EMANUEL, in his individual and official capacities, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION AND ORDER
This is a civil action for monetary and injunctive relief brought under 42 U.S.C. § 1983. Osvaldo Valdez claims that the former Superintendent of Police for the City of Chicago, Eddie Johnson, and former Mayor Rahm Emanuel discriminated against him based on his Latino "race" (Count IV) and retaliated against him by repeatedly failing to promote him because he had spoken on issues of public concern (Count III). He rests his retaliation claims on the First Amendment and his race discrimination claim on the Equal Protection Clause of the FourteenthAmendment. He seeks against the City indemnification of the individual defendants (Count I) and direct liability under Monell (Count II).2
All defendants have moved to dismiss. For the reasons stated below, the motion to dismiss is granted in part and denied in part.3
On October 20, 2014, Jason Van Dyke, while on duty as a Chicago police officer, fatally shot a young man, Laquan McDonald. Osvaldo Valdez, a lieutenant of detectives, was assigned to assist in the investigation of the scene of the shooting. Later, Eddie Johnson, before becoming superintendent of police,5 called Valdez into his office to ask for his observations and the results of this investigation. Valdez advised Johnson that the Department had trained Van Dyke "in sucha way as the shooting was bound to occur." Valdez told Johnson that all videos of the McDonald shooting should be released to the public. In February 2015, Valdez emailed Eugene Roy and John Escalante, reiterating that everything about the McDonald investigation should be released. (The complaint does not identify who Eugene Roy and John Escalante are, though, as explained below, the court takes judicial notice that they were ranking officials within the Chicago Police Department.) Johnson and Emanuel did not respond to Valdez's warning. Rather, the City, Emanuel and Johnson embarked on an elaborate scheme to cover up Van Dyke's conduct.
The dash-cam video of the McDonald shooting was not released until November 2015, when a Cook County judge so ordered. The video contradicted the initial police reports, prompting public protests, widespread changes to Chicago law enforcement leadership and oversight, and the criminal prosecution of Van Dyke.
In July 2016, Valdez was among many officers called to testify about the McDonald shooting.6 Valdez testified that faulty training of Van Dyke was the primary cause of the death of Laquan McDonald. Valdez is vague about the proceeding in which he testified but describes it as a "statement" that he gave "pursuant to legal process" and a "deposition."
Valdez is highly qualified for promotion to the rank of commander. Since 2015, in fact, Valdez has been performing the duties of a commander but has repeatedly been passed over for promotion.
During May 2019, Johnson, now Superintendent, addressed a class of nine lieutenants, including Valdez, who were in captain's training. During his remarks, Johnson mentioned the McDonald case and another shooting of Paul O'Neil, which Valdez had also investigated at thescene. Valdez was the only person in the class that had been at both scenes and the only one who had investigated a police-involved shooting as a lieutenant. Valdez took these comments as directed at him because Valdez's deposition had been leaked and Johnson had labeled Valdez as a liar or incapable of understanding comments made by others. Johnson also told the class that he did not depend on resumes when considering promotions but wanted to get a "feel" for the candidates.
In June 2019, three non-Hispanic people were promoted to captain. Two white men were promoted in October 2019. Valdez had more relevant experience than those selected. Valdez believes that Johnson denied him a promotion because of Valdez's statements about the McDonald case. This was a part of a City-wide pattern and practice of penalizing city employees for expressing contrary political views.
In 2019, the Inspector General for the City of Chicago concluded that the Department systematically denies Latinos promotional opportunities. Valdez, a Latino man, claims that he was denied a promotion based on his status as Latino.
A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences therefrom in the plaintiff's favor. Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011); Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also establish that the requested relief is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009); Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955(2007). The allegations in the complaint must be "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. At the same time, the plaintiff need not plead legal theories; it is the facts that count. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); see also Johnson v. City of Shelby, 574 U.S. 10, 135 S. Ct. 346 (2014) (per curiam) ().
Emanuel argues that Valdez fails to allege any act or omission to support the claims against him. (Dkt. 15 at 6). To state a claim under 42 U.S.C.§ 1983, Valdez must allege "personal involvement in the alleged constitutional deprivation." Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017) (quoting Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010)). "The plaintiff must demonstrate a causal connection between (1) the sued officials and (2) the alleged misconduct." Id; see also Iqbal, 556 U.S. at 676 (); Vance v. Washington, 97 F.3d 987, 991 (7th Cir.1996) ().
Valdez does not allege that Emanuel in any way participated in the police department's failure to promote Valdez. Rather, Valdez claims that Emanuel was involved in a coverup of police misconduct while mayor. (Dkt. 1-1 ¶¶ 10, 14, 26, 42.) Accepting this fact as true, Valdez fails to show that Emanuel had any role in failing to promote Valdez. Indeed, Emanuel was nolonger mayor when Valdez was passed over for promotion in 2019. (Id. ¶ 43.) Because the court can conceive of no facts that would implicate Emanuel in the promotion decision, Counts III and IV are dismissed against him with prejudice.
Section 1983 creates a right of action against state actors who deprive a person of a constitutional right. Valdez claims that Johnson violated his First and Fourteenth Amendment right to free speech by retaliating against him for engaging in protected speech. To succeed on such a claim, Valdez must plausibly allege that "(1) his speech was constitutionally protected; (2) he has suffered a deprivation likely to deter free speech; and (3) his speech was at least a motivating factor in the employer's actions." Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012). Defendants challenge the first and third elements, arguing that Valdez's speech was made as part of his official duties and therefore is not protected. Defendants also argue that Valdez was denied promotion so long after making the speech that he cannot plausibly claim that his speech was a factor in his non-promotion. Because Valdez has sufficiently alleged both elements, the motion to dismiss Count III against Johnson is denied.
"[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Chrzanowski v. Bianchi, 725 F.3d 734, 737-38 (7th Cir. 2013) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951 (2006)). "For a public employee's speech to be protected under the First Amendment, the employee must show that (1) he made the speech as a private citizen, (2) the speech addressed amatter of public concern, and (3) his interest in expressing that speech was not outweighed by the state's interests as an employer in 'promoting effective and efficient public service.'" Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013) (quoting Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008)). Defendants do not dispute that the McDonald shooting was a matter of public concern. Nor do they claim that the state's interest outweighed Valdez's interest in expression. They challenge only the first requirement, arguing that Valdez spoke as part of his official duties rather than as a private citizen.
To determine whether Valdez spoke as a private citizen or as part of his official duties, the court must make a "practical inquiry" into Valdez's expected job...
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