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OPINION REGARDING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS GORDON J. QUIST, District Judge. Plaintiff, Charlie Beamon, proceeding pro se, filed a Complaint against Defendants on April 25, 2012, in the 57th District Court of Alegan County, Michigan. Defendants removed the case to this Court on May 8, 2012, alleging federal question jurisdiction, 28 U.S.C. § 1331, on the basis that Plaintiffs claim is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq. Plaintiffs claim arises under ERISA because he seeks review of a denial of benefits under a group long-term disability policy. See 29 U.S.C. § 1132(a)(1)(B). Defendants have filed a Motion for Judgment on the Pleadings on the grounds that Plaintiff failed to exhaust his administrative remedies prior to filing this action. Plaintiff has responded by filing a Motion for Dismissal of Defendants’ Motion for Judgment on the Pleadings. For the following reasons, the Court will grant Defendants’ motion, deny Plaintiffs motion, and dismiss Plaintiffs Complaint with prejudice. Background In September of 2000, Plaintiff was placed on medical leave by his employer, Murco Foods Inc., for injuries that he sustained at work. Plaintiff applied for and received long-term disability benefits under a group disability insurance policy (Policy) that Fortis Benefits Insurance Company (Fortis) issued to Murco Food Inc. In August of 2002, Plaintiff obtained a workers’ compensation award. At the time, Fortis had a lien on the workers’ compensation award in the amount of $41,867.00 for an overpayment of benefits under the Policy. Through his counsel, Plaintiff obtained an agreement from Fortis to compromise its lien claim for a payment of $20,993.50. In March 2007, Plaintiff received a retroactive Social Security Disability (SSD) award in the amount of $73,226.63. Fortis claimed that the SSD award created an overpayment that it was entitled to recover under the Policy’s Adjustment of Benefits provision. Fortis also determined that Plaintiff was receiving Social Security dependent benefits, which increased the overpayment amount to $88,438.13. Fortis initially attempted to collect the overpayment from Plaintiff through a collection agency, but when those efforts failed, Fortis exercised its option to recover the

leave by his employer, Murco Foods Inc., for injuries that he sustained at work. Plaintiff applied for and received long-term disability benefits under a group disability insurance policy (Policy) that Fortis Benefits Insurance Company (Fortis) issued to Murco Food Inc. In August of 2002, Plaintiff obtained a workers’ compensation award. At the time, Fortis had a lien on the workers’ compensation award in the amount of $41,867.00 for an overpayment of benefits under the Policy. Through his counsel, Plaintiff obtained an agreement from Fortis to compromise its lien claim for a payment of $20,993.50. In March 2007, Plaintiff received a retroactive Social Security Disability (SSD) award in the amount of $73,226.63. Fortis claimed that the SSD award created an overpayment that it was entitled to recover under the Policy’s Adjustment of Benefits provision. Fortis also determined that Plaintiff was receiving Social Security dependent benefits, which increased the overpayment amount to $88,438.13. Fortis initially attempted to collect the overpayment from Plaintiff through a collection agency, but when those efforts failed, Fortis exercised its option to recover the overpayment through an adjustment of Plaintiffs monthly benefit until the overpayment was fully reimbursed. Fortis subsequently reduced the overpayment after Plaintiff furnished documents to Fortis showing that Plaintiffs wife, who along with Plaintiffs children was then living apart from Plaintiff, was receiving the dependent benefit on behalf of the children. Plaintiff claims that Fortis’ prior agreement to accept $20,933.50 from the workers’ compensation award in satisfaction of its lien for $41,867 bars Fortis from reducfng Plaintiffs monthly benefit to recover the overpayment resulting from the SSD award. II. Motion Standard Defendants bring their instant motion as a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). A motion under Rule 12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001). Defendants assert that a Rule 12(c) motion is an appropriate vehicle for dismissal because an ERISA plaintiff has the burden of pleading exhaustion of administrative remedies. As support for their assertion that the burden of pleading

overpayment through an adjustment of Plaintiffs monthly benefit until the overpayment was fully reimbursed. Fortis subsequently reduced the overpayment after Plaintiff furnished documents to Fortis showing that Plaintiffs wife, who along with Plaintiffs children was then living apart from Plaintiff, was receiving the dependent benefit on behalf of the children. Plaintiff claims that Fortis’ prior agreement to accept $20,933.50 from the workers’ compensation award in satisfaction of its lien for $41,867 bars Fortis from reducfng Plaintiffs monthly benefit to recover the overpayment resulting from the SSD award. II. Motion Standard Defendants bring their instant motion as a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). A motion under Rule 12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001). Defendants assert that a Rule 12(c) motion is an appropriate vehicle for dismissal because an ERISA plaintiff has the burden of pleading exhaustion of administrative remedies. As support for their assertion that the burden of pleading exhaustion in an ERISA case is on the plaintiff, Defendants cite Hagen v. VPA, Inc., 428 F.Supp.2d 708 (W.D.Mich.2006), in which the court observed that dismissal was proper because the plaintiff failed to allege exhaustion in his complaint. See id. at 713. Although the Sixth Circuit has not addressed the issue, a number of courts have held that exhaustion of administrative remedies under ERISA is an affirmative defense. For example, in Wilson v. Kimberly-Clark Corp., 254 Fed.Appx. 280 (5th Cir.2007), the Fifth Circuit concluded that exhaustion is an affirmative defense under ERISA. Id. at 287. For guidance, the court looked to the United States Supreme Court’s decision in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), which held that exhaustion under the Prison Litigation Reform Act (PLRA) is an affirmative defense rather than a pleading requirement. The court thus held, “[a]l-though Plaintiffs failed to plead that they exhausted administrative remedies, the^ need not have done so here.” Id. Similarly, the Second Circuit has held that exhaustion in ERISA cases is not

exhaustion in an ERISA case is on the plaintiff, Defendants cite Hagen v. VPA, Inc., 428 F.Supp.2d 708 (W.D.Mich.2006), in which the court observed that dismissal was proper because the plaintiff failed to allege exhaustion in his complaint. See id. at 713. Although the Sixth Circuit has not addressed the issue, a number of courts have held that exhaustion of administrative remedies under ERISA is an affirmative defense. For example, in Wilson v. Kimberly-Clark Corp., 254 Fed.Appx. 280 (5th Cir.2007), the Fifth Circuit concluded that exhaustion is an affirmative defense under ERISA. Id. at 287. For guidance, the court looked to the United States Supreme Court’s decision in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), which held that exhaustion under the Prison Litigation Reform Act (PLRA) is an affirmative defense rather than a pleading requirement. The court thus held, “[a]l-though Plaintiffs failed to plead that they exhausted administrative remedies, the^ need not have done so here.” Id. Similarly, the Second Circuit has held that exhaustion in ERISA cases is not jurisdictional, but instead is a judge-made concept in the nature of an affirmative defense. See Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 443-45 (2d Cir.2006). Although decided before Jones v. Bock, supra, the Second Circuit in Paese, like the Fifth Circuit in Wilson, considered exhaustion under the PLRA a proper guidepost for applying the exhaustion requirement under ERISA. Id. at 445-46; see also Metro. Life Ins. Co. v. Price, 501 F.3d 271, 280 (3d Cir.2007) (“The exhaustion requirement [in an ERISA case] is a nonjurisdictional affirmative defense.”); Trotter v. Kennedy Krieger Inst., Inc., No. 11-3422-JKB, 2012 WL 3638778, at *4 (D.Md. Aug. 22, 2012) (stating that “contrary to Hartford’s understanding, ERISA plaintiffs are not obligated to plead exhaustion or futility; failure to exhaust is an affirmative defense that must be pled and proved by the defendant”). This Court has also previously held that exhaustion in an ERISA case is an affirmative defense that the defendant must plead. See Zappley v. Stride Rite Corp., No. 2:09-CV-198, 2010 WL 234713, at *4 (W.D.Mich.

jurisdictional, but instead is a judge-made concept in the nature of an affirmative defense. See Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 443-45 (2d Cir.2006). Although decided before Jones v. Bock, supra, the Second Circuit in Paese, like the Fifth Circuit in Wilson, considered exhaustion under the PLRA a proper guidepost for applying the exhaustion requirement under ERISA. Id. at 445-46; see also Metro. Life Ins. Co. v. Price, 501 F.3d 271, 280 (3d Cir.2007) (“The exhaustion requirement [in an ERISA case] is a nonjurisdictional affirmative defense.”); Trotter v. Kennedy Krieger Inst., Inc., No. 11-3422-JKB, 2012 WL 3638778, at *4 (D.Md. Aug. 22, 2012) (stating that “contrary to Hartford’s understanding, ERISA plaintiffs are not obligated to plead exhaustion or futility; failure to exhaust is an affirmative defense that must be pled and proved by the defendant”). This Court has also previously held that exhaustion in an ERISA case is an affirmative defense that the defendant must plead. See Zappley v. Stride Rite Corp., No. 2:09-CV-198, 2010 WL 234713, at *4 (W.D.Mich. Jan. 13, 2010). Because exhaustion is an affirmative defense, a Rule 56 “summary judgment motion is the proper vehicle for considering a defendant’s claim that a plaintiff has failed to exhaust administrative remedies before filing a civil action.” Gunn v. Bluecross Blueshield of Tenn., Inc., No. 1:11-CV-183, 2012 WL 1711555, at *4 (E.D.Tenn. May 15, 2012); see also Soren v. Equable Ascent Fin., LLC, No. 2:12-cv-00038, 2012 WL 2317362, at *4 (D.Utah June 18, 2012) (“Bona fide error is an affirmative defense and is not properly raised in a motion to dismiss under Rule 12(b)(6).”). One exception to this rule is that an affirmative defense may be raised in a Rule 12(b)(6) motion “without resort to summary judgment procedure, if the defense appears on the face of the complaint.” In re Lehman Bros. Sec. & Erisa Litig., 799 F.Supp.2d 258, 317 (S.D.N.Y.2011) (internal quotation marks omitted); see also Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir.2010) (noting that “a district court may dismiss a complaint if the existence of a valid affirmative defense, such as

Jan. 13, 2010). Because exhaustion is an affirmative defense, a Rule 56 “summary judgment motion is the proper vehicle for considering a defendant’s claim that a plaintiff has failed to exhaust administrative remedies before filing a civil action.” Gunn v. Bluecross Blueshield of Tenn., Inc., No. 1:11-CV-183, 2012 WL 1711555, at *4 (E.D.Tenn. May 15, 2012); see also Soren v. Equable Ascent Fin., LLC, No. 2:12-cv-00038, 2012 WL 2317362, at *4 (D.Utah June 18, 2012) (“Bona fide error is an affirmative defense and is not properly raised in a motion to dismiss under Rule 12(b)(6).”). One exception to this rule is that an affirmative defense may be raised in a Rule 12(b)(6) motion “without resort to summary judgment procedure, if the defense appears on the face of the complaint.” In re Lehman Bros. Sec. & Erisa Litig., 799 F.Supp.2d 258, 317 (S.D.N.Y.2011) (internal quotation marks omitted); see also Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir.2010) (noting that “a district court may dismiss a complaint if the existence of a valid affirmative defense, such as the failure to exhaust, is ... plain from the face of the complaint”). Whether lack of exhaustion can be said to appear on the face of Plaintiffs Complaint is a close question, but the Court concludes that it does. Plaintiffs unconventional Complaint consists of a one-page form Summons and Complaint, which discloses nothing about Plaintiffs claim, and two letters. One letter, (dkt. # 1-1 at Page ID# 7), dated April 18, 2012, and addressed to Defendant Marie Tuschy, references a letter that Plaintiff received from Defendant Tuschy partially denying Plaintiffs claim. Plaintiff notes in his letter that Defendant Tuschy’s letter advises him that he has 180 days to appeal, and Plaintiff states that he has no more documents to submit and he “do[es] not see how another 180 days will make any different [sic].” (Id.) Plaintiff filed his Complaint in state court on April 25, 2012-one week after his April 18, 2012, letter to Defendant Tuschy. Moreover, in support of their motion, Defendants submit a copy of Defendant Tuschy’s April 12, 2012, letter to Plaintiff, which

the failure to exhaust, is ... plain from the face of the complaint”). Whether lack of exhaustion can be said to appear on the face of Plaintiffs Complaint is a close question, but the Court concludes that it does. Plaintiffs unconventional Complaint consists of a one-page form Summons and Complaint, which discloses nothing about Plaintiffs claim, and two letters. One letter, (dkt. # 1-1 at Page ID# 7), dated April 18, 2012, and addressed to Defendant Marie Tuschy, references a letter that Plaintiff received from Defendant Tuschy partially denying Plaintiffs claim. Plaintiff notes in his letter that Defendant Tuschy’s letter advises him that he has 180 days to appeal, and Plaintiff states that he has no more documents to submit and he “do[es] not see how another 180 days will make any different [sic].” (Id.) Plaintiff filed his Complaint in state court on April 25, 2012-one week after his April 18, 2012, letter to Defendant Tuschy. Moreover, in support of their motion, Defendants submit a copy of Defendant Tuschy’s April 12, 2012, letter to Plaintiff, which the Court may consider. See Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir.1997) (a court may consider documents attached to a motion to dismiss if they are referred to in the complaint and are central to the plaintiffs claim). In her letter, in addition to explaining the basis for the partial denial of Plaintiffs claim, Defendant Tuschy advised Plaintiff of the appeal procedure to initiate a second-level appeal of his claim and cautioned Plaintiff that he had 180 days to submit an appeal. (Defs.’ Br. Supp. Ex. A.) Considering both Defendant Tuschy’s April 12, 2012, letter to Plaintiff and Plaintiffs April 18, 2012, letter to Defendant Tuschy, as well as the fact that Plaintiff filed his Complaint one week after his letter to Defendant Tuschy, the Court concludes that Defendants’ Rule 12(c) motion is a proper means of presenting Defendants’ exhaustion defense. III. Discussion Although ERISA does not specifically contain an exhaustion requirement, the Sixth Circuit has held that “[t]he administrative scheme of ERISA requires a participant to exhaust his or her administrative remedies

the Court may consider. See Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir.1997) (a court may consider documents attached to a motion to dismiss if they are referred to in the complaint and are central to the plaintiffs claim). In her letter, in addition to explaining the basis for the partial denial of Plaintiffs claim, Defendant Tuschy advised Plaintiff of the appeal procedure to initiate a second-level appeal of his claim and cautioned Plaintiff that he had 180 days to submit an appeal. (Defs.’ Br. Supp. Ex. A.) Considering both Defendant Tuschy’s April 12, 2012, letter to Plaintiff and Plaintiffs April 18, 2012, letter to Defendant Tuschy, as well as the fact that Plaintiff filed his Complaint one week after his letter to Defendant Tuschy, the Court concludes that Defendants’ Rule 12(c) motion is a proper means of presenting Defendants’ exhaustion defense. III. Discussion Although ERISA does not specifically contain an exhaustion requirement, the Sixth Circuit has held that “[t]he administrative scheme of ERISA requires a participant to exhaust his or her administrative remedies prior to commencing suit in federal court.” Miller v. Metro. Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991) (citing 29 U.S.C. § 1133(2)). Exhaustion is excused “where resorting to the plan’s administrative procedure would simply be futile or the remedy inadequate.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 418 n. 4 (6th Cir.1998). “The standard for adjudging futility of resorting to the administrative remedies provided by a plan is whether a clear and positive indication of futility can be made.” Id. Exhaustion will be excused where the plaintiffs suit is directed to the legality of the plan, as opposed to an interpretation of the plan, Durand v. Hanover Ins. Group, Inc., 560 F.3d 436, 439 (6th Cir.2009), or when the defendant lacks the authority to take the action sought by the plaintiff. Dozier v. Sun Life Assurance Co. of Canada, 466 F.3d 532, 535 (6th Cir.2006). Plaintiff does not deny that he failed to appeal Defendant Tuschy’s initial denial of his claim to the second level. However, Plaintiff appears to argue futility in

prior to commencing suit in federal court.” Miller v. Metro. Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991) (citing 29 U.S.C. § 1133(2)). Exhaustion is excused “where resorting to the plan’s administrative procedure would simply be futile or the remedy inadequate.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 418 n. 4 (6th Cir.1998). “The standard for adjudging futility of resorting to the administrative remedies provided by a plan is whether a clear and positive indication of futility can be made.” Id. Exhaustion will be excused where the plaintiffs suit is directed to the legality of the plan, as opposed to an interpretation of the plan, Durand v. Hanover Ins. Group, Inc., 560 F.3d 436, 439 (6th Cir.2009), or when the defendant lacks the authority to take the action sought by the plaintiff. Dozier v. Sun Life Assurance Co. of Canada, 466 F.3d 532, 535 (6th Cir.2006). Plaintiff does not deny that he failed to appeal Defendant Tuschy’s initial denial of his claim to the second level. However, Plaintiff appears to argue futility in both his Response to Defendants’ motion and in his Motion for Dismissal of Defendants’ Motion and supporting brief, noting that he has tried to resolve his claim with Defendants for several years without success. Plaintiff suggests that seeking further administrative review of his claim would not produce a different result. Even strong doubts, however, are not enough invoke futility. “A plaintiff must show that it is certain that his claim will be denied on appeal, not merely that he doubts that an appeal will result in a different decision.” Coomer v. Bethesda Hosp., Inc. 370 F.3d 499, 505 (6th Cir.2004). “[T]he courts must allow the administrative process to take its course even when the outcome will almost certainly be adverse to the claimant.” Durand, 560 F.3d at 440. In this Court’s judgment, Plaintiff has not demonstrated a certainty that his appeal would be denied. Plaintiff does not argue that an appeal would be reviewed by the same person that denied his initial appeal or that he has any reason to believe that a second-level appeal

both his Response to Defendants’ motion and in his Motion for Dismissal of Defendants’ Motion and supporting brief, noting that he has tried to resolve his claim with Defendants for several years without success. Plaintiff suggests that seeking further administrative review of his claim would not produce a different result. Even strong doubts, however, are not enough invoke futility. “A plaintiff must show that it is certain that his claim will be denied on appeal, not merely that he doubts that an appeal will result in a different decision.” Coomer v. Bethesda Hosp., Inc. 370 F.3d 499, 505 (6th Cir.2004). “[T]he courts must allow the administrative process to take its course even when the outcome will almost certainly be adverse to the claimant.” Durand, 560 F.3d at 440. In this Court’s judgment, Plaintiff has not demonstrated a certainty that his appeal would be denied. Plaintiff does not argue that an appeal would be reviewed by the same person that denied his initial appeal or that he has any reason to believe that a second-level appeal would not receive an independent review. Accordingly, Plaintiff has not shown a sufficient basis for the Court to excuse exhaustion. Under appropriate circumstances, the Court would stay the case, rather than dismiss it, to allow Plaintiff an opportunity to exhaust his administrative remedies and return to this Court for review of the decision, if necessary. See Lindemann v. Mobil Oil Corp., 79 F.3d 647, 651 (7th Cir.1996) (noting that a district court has discretion to dismiss or stay a case pending completion of administrative review). However, Plaintiff can no longer exhaust his administrative remedies because the 180-day period for Plaintiff to file his appeal has now expired. A stay, therefore, is unnecessary. Rather, the appropriate result is dismissal with prejudice. See Bird v. GTX, Inc., No. 2:08-cv-02852, 2010 WL 883738, at *4 (W.D.Tenn. Mar. 5, 2010) (“Courts typically dismiss unexhausted ERISA claims with prejudice where the opportunity to pursue administrative remedies has expired.”). Accordingly, the Court will dismiss the Complaint with prejudice. III. Conclusion For the foregoing reasons, the Court will grant Defendants’ Motion for Judgment on the

would not receive an independent review. Accordingly, Plaintiff has not shown a sufficient basis for the Court to excuse exhaustion. Under appropriate circumstances, the Court would stay the case, rather than dismiss it, to allow Plaintiff an opportunity to exhaust his administrative remedies and return to this Court for review of the decision, if necessary. See Lindemann v. Mobil Oil Corp., 79 F.3d 647, 651 (7th Cir.1996) (noting that a district court has discretion to dismiss or stay a case pending completion of administrative review). However, Plaintiff can no longer exhaust his administrative remedies because the 180-day period for Plaintiff to file his appeal has now expired. A stay, therefore, is unnecessary. Rather, the appropriate result is dismissal with prejudice. See Bird v. GTX, Inc., No. 2:08-cv-02852, 2010 WL 883738, at *4 (W.D.Tenn. Mar. 5, 2010) (“Courts typically dismiss unexhausted ERISA claims with prejudice where the opportunity to pursue administrative remedies has expired.”). Accordingly, the Court will dismiss the Complaint with prejudice. III. Conclusion For the foregoing reasons, the Court will grant Defendants’ Motion for Judgment on the Pleadings, deny Plaintiffs Motion for Dismissal of Defendants’ Motion, and dismiss the Complaint with prejudice. An Order consistent with this Opinion will be entered. . Plaintiff named Assurant Employee Benefits and certain individuals as Defendants. The Policy attached as Exhibit C to Defendants' Notice of Removal indicates that the Policy was issued by Fortis Benefits Insurance Company, which apparently is now known as Union Security Insurance Company. For purposes of the instant motion, references to Fortis include Union Security Insurance Company. . The Fifth Circuit has also held that exhaustion in ERISA cases is an affirmative defense rather than a jurisdictional requirement. Crowell v. Shell Oil Co., 541 F.3d 295 (5th Cir.2008). . The Court notes that Defendants have sufficiently pled lack of exhaustion in their affirmative defenses. (Dkt. # 8, affirmative defense # 7.)

MEMORANDUM OPINION AND ORDER ROBERT M. DOW, JR., District Judge. Defendants investigated and prosecuted Plaintiffs for allegedly abusing their positions at the State’s Attorney’s Office in McHenry County, Illinois. Once Plaintiffs defeated the charges against them— through voluntary dismissal and acquittal at trial — they sued special prosecutors Thomas K. McQueen and Henry C. Tonigan and certain Quest employees hired to assist them with the investigation and prosecution. According to Plaintiffs’ fifteen-count amended complaint, Defendants’ investigation and prosecution violated Plaintiffs’ rights under federal and state law. Defendants have moved to dismiss based on absolute and qualified immunity. For the reasons stated below, Defendants’ motions to dismiss [73, 80] are granted. Plaintiffs’ federal claims (Counts I — VII) are dismissed with leave to re-plead within 28 days if Plaintiffs believe that an amended complaint could overcome the immunity obstacles set forth below. If Plaintiffs decide not to replead, Plaintiffs’ federal claims will be dismissed with prejudice and the Court will decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims (Counts VIII — XV) and dismiss those claims without prejudice. I. Background The facts are drawn from Plaintiffs’ amended complaint [70]. In deciding Defendants’ motion to dismiss, the Court accepts well-pleaded facts as true and draws all reasonable inferences in Plaintiffs’ favor. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir.2005). Bianchi is the State’s Attorney in McHenry County, Illinois. He first was elected in 2004. He ran again in 2008, and he was reelected following what he describes as “highly contentious” Republican primary. According to the complaint, the campaign to unseat him continued after the election: After failing in their efforts to legally remove Bianchi from office during the 2008 election, Bianchi’s political opponents initiated a politically motivated conspiracy to override the election and force Bianchi from office. The objective of this conspiracy was to arrest, indict, and publically smear Bianchi, thereby causing him to resign his office, irreparably tarnish his public reputation, and allow his political opponents to install a State’s Attorney who would do their bidding. Compl. ¶ 16. As it bears on this case, the alleged conspiracy to unseat Bianchi took the form of

prejudice. I. Background The facts are drawn from Plaintiffs’ amended complaint [70]. In deciding Defendants’ motion to dismiss, the Court accepts well-pleaded facts as true and draws all reasonable inferences in Plaintiffs’ favor. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir.2005). Bianchi is the State’s Attorney in McHenry County, Illinois. He first was elected in 2004. He ran again in 2008, and he was reelected following what he describes as “highly contentious” Republican primary. According to the complaint, the campaign to unseat him continued after the election: After failing in their efforts to legally remove Bianchi from office during the 2008 election, Bianchi’s political opponents initiated a politically motivated conspiracy to override the election and force Bianchi from office. The objective of this conspiracy was to arrest, indict, and publically smear Bianchi, thereby causing him to resign his office, irreparably tarnish his public reputation, and allow his political opponents to install a State’s Attorney who would do their bidding. Compl. ¶ 16. As it bears on this case, the alleged conspiracy to unseat Bianchi took the form of an investigation and prosecution by special prosecutor Tonigan (no longer a Defendant) and his assistant special prosecutor, Defendant McQueen. As Plaintiffs tell it, the story of this case begins in 2004, when Amy Dalby was a secretary in the State’s Attorney’s Office (“SAO”). Prior to resigning in 2006, Dalby “stole approximately 5000 documents from an SAO computer, including confidential and sensitive documents concerning pending investigations and prosecutions.” Compl. ¶ 18. In 2007, Dalby gave the stolen documents to Kristen Foley, apparently an ally of Bianchi’s primary opponent, Daniel Regna, to use in his campaign. Foley gave the documents to Regna and the media. Compl. ¶ 19-20. Bianchi petitioned a court to appoint a special prosecutor independent of the SAO to investigate and if necessary prosecute responsible parties. Compl. ¶ 21. Ultimately, Dalby was arrested and charged with six felonies. In June 2009, she pled guilty to computer tampering. Compl. ¶ 22. In April 2009, Dalby filed a petition for the appointment of a special prosecutor “to investigate her allegation that she performed political work while working in

an investigation and prosecution by special prosecutor Tonigan (no longer a Defendant) and his assistant special prosecutor, Defendant McQueen. As Plaintiffs tell it, the story of this case begins in 2004, when Amy Dalby was a secretary in the State’s Attorney’s Office (“SAO”). Prior to resigning in 2006, Dalby “stole approximately 5000 documents from an SAO computer, including confidential and sensitive documents concerning pending investigations and prosecutions.” Compl. ¶ 18. In 2007, Dalby gave the stolen documents to Kristen Foley, apparently an ally of Bianchi’s primary opponent, Daniel Regna, to use in his campaign. Foley gave the documents to Regna and the media. Compl. ¶ 19-20. Bianchi petitioned a court to appoint a special prosecutor independent of the SAO to investigate and if necessary prosecute responsible parties. Compl. ¶ 21. Ultimately, Dalby was arrested and charged with six felonies. In June 2009, she pled guilty to computer tampering. Compl. ¶ 22. In April 2009, Dalby filed a petition for the appointment of a special prosecutor “to investigate her allegation that she performed political work while working in the SAO from December of 2004 until July of 2006.” Compl. ¶ 24. In September 2009, McHenry County Circuit Court Judge Gordon Graham granted Dalby’s petition and appointed Tonigan and McQueen as special state’s attorneys to investigate and if necessary prosecute. See Compl. ¶¶ 5, 27, 86. In November 2009, after Tonigan’s and McQueen’s initial interviews with Dalby and others, Tonigan wrote to Judge Graham asking to “expand the order defining the role of our investigation.” Compl. ¶ 35. According to Plaintiffs, Tonigan’s letter “contained * * * blatantly false statements.” Compl. ¶ 36. The letter prompted Judge Graham to issue an order granting Tonigan and McQueen “the authority to investigate and prosecute Bianchi and ‘any and all persons’ relative to any misappropriation or theft from '2005 and thereafter.’ ” Compl. ¶ 37 (quoting Judge Graham’s order). “Around December or 2009,” Tonigan retained Defendant Quest to investigate Bianchi. Compl. ¶ 38. Quest employees Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, and Richard Stilling (collectively, “Quest Defendants,” also referred to in Plaintiffs’ complaint as “Quest Investigators” or

the SAO from December of 2004 until July of 2006.” Compl. ¶ 24. In September 2009, McHenry County Circuit Court Judge Gordon Graham granted Dalby’s petition and appointed Tonigan and McQueen as special state’s attorneys to investigate and if necessary prosecute. See Compl. ¶¶ 5, 27, 86. In November 2009, after Tonigan’s and McQueen’s initial interviews with Dalby and others, Tonigan wrote to Judge Graham asking to “expand the order defining the role of our investigation.” Compl. ¶ 35. According to Plaintiffs, Tonigan’s letter “contained * * * blatantly false statements.” Compl. ¶ 36. The letter prompted Judge Graham to issue an order granting Tonigan and McQueen “the authority to investigate and prosecute Bianchi and ‘any and all persons’ relative to any misappropriation or theft from '2005 and thereafter.’ ” Compl. ¶ 37 (quoting Judge Graham’s order). “Around December or 2009,” Tonigan retained Defendant Quest to investigate Bianchi. Compl. ¶ 38. Quest employees Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, and Richard Stilling (collectively, “Quest Defendants,” also referred to in Plaintiffs’ complaint as “Quest Investigators” or “Quest investigators”) were appointed as special investigators and participated in Tonigan’s and McQueen’s investigation of Bianchi and the SAO. After conducting interviews, the Quest Defendants “informed Tonigan and/or McQueen of information related during the interviews.” Compl. ¶ 44. After consulting with “Tonigan and/or McQueen” the Quest Defendants prepared reports summarizing their findings. According to the complaint, at Tonigan’s “and/or” McQueen’s behest, the reports “included false and manufactured information” about the statements of various current and former assistant state’s attorneys. Compl. ¶ 45 a-d (detailing alleged false statements in Defendants’ reports). Plaintiffs assert that “[a]ll of the former and current ASAs described in paragraph 45(a-d) have confirmed that they did not make any of the statements attributed to them.” Compl. ¶ 46. In April 2010, Judge Graham convened a grand jury and appointed the Quest Defendants as agents of the grand jury. Compl. ¶ 47. Plaintiffs allege that the Quest Defendants did not follow Illinois law in serving search warrants, subpoenas, and subpoenas duces tecum. Compl. ¶ 49. Based on those subpoenas, numerous witnesses produced documents to

“Quest investigators”) were appointed as special investigators and participated in Tonigan’s and McQueen’s investigation of Bianchi and the SAO. After conducting interviews, the Quest Defendants “informed Tonigan and/or McQueen of information related during the interviews.” Compl. ¶ 44. After consulting with “Tonigan and/or McQueen” the Quest Defendants prepared reports summarizing their findings. According to the complaint, at Tonigan’s “and/or” McQueen’s behest, the reports “included false and manufactured information” about the statements of various current and former assistant state’s attorneys. Compl. ¶ 45 a-d (detailing alleged false statements in Defendants’ reports). Plaintiffs assert that “[a]ll of the former and current ASAs described in paragraph 45(a-d) have confirmed that they did not make any of the statements attributed to them.” Compl. ¶ 46. In April 2010, Judge Graham convened a grand jury and appointed the Quest Defendants as agents of the grand jury. Compl. ¶ 47. Plaintiffs allege that the Quest Defendants did not follow Illinois law in serving search warrants, subpoenas, and subpoenas duces tecum. Compl. ¶ 49. Based on those subpoenas, numerous witnesses produced documents to Tonigan and McQueen and testified before the grand jury. Compl. ¶ 50. Plaintiffs allege that Defendants McQueen, Scigalski, and Jerger made false statements to the grand jury. In September 2010, the grand jury returned indictments against Bianchi for conspiracy to commit official misconduct and obstruction of justice, nineteen counts of official misconduct, and unlawful communication with a witness and against Synek for conspiracy to commit official misconduct and obstruction of justice, four counts of perjury, and obstruction of justice. Compl. ¶¶ 57-58. An arrest warrant was issued and Bianchi and Synek were arrested. Compl. ¶ 64. Shortly after obtaining the first indictment, McQueen filed a petition to expand the investigation of Bianchi and SAO employees. Compl. ¶83. In October 2010, Judge Graham “signed an order appointing Defendants McQueen and Tonigan as special state’s attorneys to investigate and prosecute individuals for using their official position in the SAO to give benefits in criminal prosecutions to friends, relatives, and supporters.” Compl. ¶ 86. Defendants again served subpoenas and, again, witnesses appeared and testified before the grand jury. Compl.

Tonigan and McQueen and testified before the grand jury. Compl. ¶ 50. Plaintiffs allege that Defendants McQueen, Scigalski, and Jerger made false statements to the grand jury. In September 2010, the grand jury returned indictments against Bianchi for conspiracy to commit official misconduct and obstruction of justice, nineteen counts of official misconduct, and unlawful communication with a witness and against Synek for conspiracy to commit official misconduct and obstruction of justice, four counts of perjury, and obstruction of justice. Compl. ¶¶ 57-58. An arrest warrant was issued and Bianchi and Synek were arrested. Compl. ¶ 64. Shortly after obtaining the first indictment, McQueen filed a petition to expand the investigation of Bianchi and SAO employees. Compl. ¶83. In October 2010, Judge Graham “signed an order appointing Defendants McQueen and Tonigan as special state’s attorneys to investigate and prosecute individuals for using their official position in the SAO to give benefits in criminal prosecutions to friends, relatives, and supporters.” Compl. ¶ 86. Defendants again served subpoenas and, again, witnesses appeared and testified before the grand jury. Compl. ¶ 96. In February 2011, the grand jury returned indictments against Bianchi for three counts of official misconduct for improperly intervening in criminal cases on behalf of friends and political supporters, against Salgado for official misconduct for intervening in a criminal case on behalf of his nephew, and against McCleary for official misconduct related to improper use of a county vehicle. Compl. ¶¶ 99, 100, 110. As a result of the indictments, warrants were issued, and Bianchi, Salgado, and McCleary were arrested. Compl. ¶¶ 102, 103, 111. Shortly after the return of the second indictment, Tonigan, McQueen, and Scigalski held a press conference where McQueen repeated the allegations contained in the indictments against Bianchi, Salgado, and McCleary. According to the complaint, McQueen also said things about Plaintiffs that went beyond the indictments, such as that “after the return of the first indictment Scigalski received calls from a number of lawyers regarding cases handled by Bianchi and that those cases suggested that the equal protection rights of all defendants were not being upheld because of favoritism.” Compl. ¶

¶ 96. In February 2011, the grand jury returned indictments against Bianchi for three counts of official misconduct for improperly intervening in criminal cases on behalf of friends and political supporters, against Salgado for official misconduct for intervening in a criminal case on behalf of his nephew, and against McCleary for official misconduct related to improper use of a county vehicle. Compl. ¶¶ 99, 100, 110. As a result of the indictments, warrants were issued, and Bianchi, Salgado, and McCleary were arrested. Compl. ¶¶ 102, 103, 111. Shortly after the return of the second indictment, Tonigan, McQueen, and Scigalski held a press conference where McQueen repeated the allegations contained in the indictments against Bianchi, Salgado, and McCleary. According to the complaint, McQueen also said things about Plaintiffs that went beyond the indictments, such as that “after the return of the first indictment Scigalski received calls from a number of lawyers regarding cases handled by Bianchi and that those cases suggested that the equal protection rights of all defendants were not being upheld because of favoritism.” Compl. ¶ 113. After the McHenry County Circuit Court judges recused themselves, the Illinois Supreme Court appointed Judge Joseph McGraw from the Seventeenth Judicial Circuit to preside over the cases against Plaintiffs. Compl. ¶ 77. In March 2011, after a two day bench trial, Judge McGraw granted Bianchi’s and Synek’s Motion for a Directed Finding and acquitted them of all charges in the first indictment. On June 3, 2011, Judge McGraw dismissed the charges of official misconduct against Salgado “based on the failure of the charge to state an offense” against him. Compl. ¶ 120. On June 29, 2011, the charge of official misconduct was dismissed against McCleary “based on the failure of the charge to state an offense” against him. Compl. ¶ 121. In August 2011, after a second bench trial, Judge McGraw granted Bianchi’s motion for a directed finding and acquitted Bianchi of the remaining charges. Compl. ¶ 123. Following the dismissals, Plaintiffs filed this suit against Tonigan, McQueen, the Quest Defendants, Quest Consultants International, Ltd., Tonigan’s law firm, and unknown coconspirators. Tonigan and his law firm

113. After the McHenry County Circuit Court judges recused themselves, the Illinois Supreme Court appointed Judge Joseph McGraw from the Seventeenth Judicial Circuit to preside over the cases against Plaintiffs. Compl. ¶ 77. In March 2011, after a two day bench trial, Judge McGraw granted Bianchi’s and Synek’s Motion for a Directed Finding and acquitted them of all charges in the first indictment. On June 3, 2011, Judge McGraw dismissed the charges of official misconduct against Salgado “based on the failure of the charge to state an offense” against him. Compl. ¶ 120. On June 29, 2011, the charge of official misconduct was dismissed against McCleary “based on the failure of the charge to state an offense” against him. Compl. ¶ 121. In August 2011, after a second bench trial, Judge McGraw granted Bianchi’s motion for a directed finding and acquitted Bianchi of the remaining charges. Compl. ¶ 123. Following the dismissals, Plaintiffs filed this suit against Tonigan, McQueen, the Quest Defendants, Quest Consultants International, Ltd., Tonigan’s law firm, and unknown coconspirators. Tonigan and his law firm are now out of the case. Against the remaining Defendants, Plaintiffs assert fifteen claims under federal and state law. Defendants have moved to dismiss. II. Motion to Dismiss Legal Standard The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi, 910 F.2d 1510, 1520 (7th Cir.1990). In reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiffs complaint and draws all reasonable inferences in his favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.2007). To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief’ (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,

are now out of the case. Against the remaining Defendants, Plaintiffs assert fifteen claims under federal and state law. Defendants have moved to dismiss. II. Motion to Dismiss Legal Standard The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi, 910 F.2d 1510, 1520 (7th Cir.1990). In reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiffs complaint and draws all reasonable inferences in his favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.2007). To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief’ (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the “speculative level,” assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). However, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (ellipsis in

127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the “speculative level,” assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). However, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi, 631 F.3d 823, 832 (7th Cir.2011); cf. Scott v. City of Chi, 195 F.3d 950, 952 (7th Cir.1999) (“Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.”). III. Analysis A. Federal Claims Plaintiffs assert seven claims under 42 U.S.C. § 1983 for alleged violations of their federal constitutional rights by state officials acting under color of state law. Counts I — III are for false arrest. Counts IV-V allege that Defendants conspired to violate Plaintiffs’ due process rights by fabricating evidence and failing to disclose exculpatory evidence. Counts VI-VII assert that Defendants conspired to charge and prosecute Plaintiffs as retaliation for Bianchi’s decision to “seek and hold” public office. Defendants claim absolute and qualified immunity. Section 1983 creates a private right of action to vindicate violations of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. See Rehberg v. Paulk, - U.S. -, 132 S.Ct. 1497, 1502, 182

original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi, 631 F.3d 823, 832 (7th Cir.2011); cf. Scott v. City of Chi, 195 F.3d 950, 952 (7th Cir.1999) (“Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.”). III. Analysis A. Federal Claims Plaintiffs assert seven claims under 42 U.S.C. § 1983 for alleged violations of their federal constitutional rights by state officials acting under color of state law. Counts I — III are for false arrest. Counts IV-V allege that Defendants conspired to violate Plaintiffs’ due process rights by fabricating evidence and failing to disclose exculpatory evidence. Counts VI-VII assert that Defendants conspired to charge and prosecute Plaintiffs as retaliation for Bianchi’s decision to “seek and hold” public office. Defendants claim absolute and qualified immunity. Section 1983 creates a private right of action to vindicate violations of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. See Rehberg v. Paulk, - U.S. -, 132 S.Ct. 1497, 1502, 182 L.Ed.2d 593 (2012). By its terms, it applies to “[e]very person” who acts under color of state law to violate those rights. See Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). “Despite the broad terms of § 1983, [the Supreme Court has] long recognized that the statute was not meant to effect a radical departure from ordinary tort law and the common-law immunities applicable in tort suits.” Rehberg, 132 S.Ct. at 1502 (citing cases). In deciding what immunities apply in § 1983 cases, the Supreme Court has “consulted the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed ‘with independence and without fear of consequences.’ ” Rehberg, 132 S.Ct. at 1502 (quoting Bradley v. Fisher, 13 Wall. 335, 350 n. 59, 20 L.Ed. 646 (1872)). Relevant to this case, the Supreme Court has held that witnesses before a grand jury,

L.Ed.2d 593 (2012). By its terms, it applies to “[e]very person” who acts under color of state law to violate those rights. See Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). “Despite the broad terms of § 1983, [the Supreme Court has] long recognized that the statute was not meant to effect a radical departure from ordinary tort law and the common-law immunities applicable in tort suits.” Rehberg, 132 S.Ct. at 1502 (citing cases). In deciding what immunities apply in § 1983 cases, the Supreme Court has “consulted the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed ‘with independence and without fear of consequences.’ ” Rehberg, 132 S.Ct. at 1502 (quoting Bradley v. Fisher, 13 Wall. 335, 350 n. 59, 20 L.Ed. 646 (1872)). Relevant to this case, the Supreme Court has held that witnesses before a grand jury, witnesses at trial, and prosecutors acting in furtherance of their prosecutorial duties are entitled to absolute immunity. Id. at 1503, 1506. Those acting under color of state law in an investigatory role, including prosecutors, may claim only qualified immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 270, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Whether a prosecutor is acting within the scope of his prosecutorial duties, and is therefore entitled to absolute immunity, “hinges on whether the prosecutor is, at the time, acting as an officer of the court, as well as on his action’s relatedness to the judicial phase of the criminal process.” Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir.2012). Prosecutorial immunity “extends beyond an individual prosecutor’s decision to indict or try a case.” Id. (citing Van de Kamp v. Goldstein, 555 U.S. 335, 344-48, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009)). It protects the “functioning of the public office” and so “encompasses any action directly relevant to a prosecutor’s ability to conduct a trial.” Id. But when a prosecutor is functioning like

witnesses at trial, and prosecutors acting in furtherance of their prosecutorial duties are entitled to absolute immunity. Id. at 1503, 1506. Those acting under color of state law in an investigatory role, including prosecutors, may claim only qualified immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 270, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Whether a prosecutor is acting within the scope of his prosecutorial duties, and is therefore entitled to absolute immunity, “hinges on whether the prosecutor is, at the time, acting as an officer of the court, as well as on his action’s relatedness to the judicial phase of the criminal process.” Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir.2012). Prosecutorial immunity “extends beyond an individual prosecutor’s decision to indict or try a case.” Id. (citing Van de Kamp v. Goldstein, 555 U.S. 335, 344-48, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009)). It protects the “functioning of the public office” and so “encompasses any action directly relevant to a prosecutor’s ability to conduct a trial.” Id. But when a prosecutor is functioning like a detective, “searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested,” then the prosecutor is acting as a detective and is not entitled to greater immunity. See Buckley, 509 U.S. at 273, 276, 113 S.Ct. 2606. “In other words, ‘[w]hen the functions of prosecutors and detectives are the same * * * the immunity that protects them is also the same.’ ” Lewis v. Mills, 677 F.3d 324, 330 (7th Cir.2012) (quoting Buckley, 509 U.S. at 276, 113 S.Ct. 2606). Qualified immunity “protects government officials from liability for civil damages if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Viilo v. Eyre, 547 F.3d 707, 709 (7th Cir.2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity is immunity from suit rather than merely a defense to liability. Scott v. Harris, 550 U.S. 372, 376 n. 2, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The qualified

a detective, “searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested,” then the prosecutor is acting as a detective and is not entitled to greater immunity. See Buckley, 509 U.S. at 273, 276, 113 S.Ct. 2606. “In other words, ‘[w]hen the functions of prosecutors and detectives are the same * * * the immunity that protects them is also the same.’ ” Lewis v. Mills, 677 F.3d 324, 330 (7th Cir.2012) (quoting Buckley, 509 U.S. at 276, 113 S.Ct. 2606). Qualified immunity “protects government officials from liability for civil damages if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Viilo v. Eyre, 547 F.3d 707, 709 (7th Cir.2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity is immunity from suit rather than merely a defense to liability. Scott v. Harris, 550 U.S. 372, 376 n. 2, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The qualified immunity analysis comprises a two-part inquiry: (i) “whether the facts alleged show that the state actor violated a constitutional right,” and (ii) “whether the right was clearly established.” Hanes v. Zurich 578 F.3d 491, 493 (7th Cir.2009). 1. Thomas K. McQueen Plaintiffs first argue that McQueen is not entitled to absolute immunity because he was not actually a special prosecutor. This line of argument is something of a surprise because Plaintiffs’ complaint repeatedly describes McQueen as a special state’s attorney or as someone vested with the same legal authority as a state’s attorney. For instance, the complaint begins this way: This action is brought pursuant to the First, Fourth and Fourteenth Amendments to the United States Constitution and under Illinois state Law. Plaintiff Louis A. Bianchi, the State’s Attorney of McHenry County (hereinafter “Bianchi”), and three of his employees were the victims of politically and financially motivated criminal investigations and prosecutions orchestrated by Defendants Henry C. Tonigan, III and Thomas K. McQueen, in their roles as taxpayer funded special state’s attorneys in McHenry County, in concert with their

immunity analysis comprises a two-part inquiry: (i) “whether the facts alleged show that the state actor violated a constitutional right,” and (ii) “whether the right was clearly established.” Hanes v. Zurich 578 F.3d 491, 493 (7th Cir.2009). 1. Thomas K. McQueen Plaintiffs first argue that McQueen is not entitled to absolute immunity because he was not actually a special prosecutor. This line of argument is something of a surprise because Plaintiffs’ complaint repeatedly describes McQueen as a special state’s attorney or as someone vested with the same legal authority as a state’s attorney. For instance, the complaint begins this way: This action is brought pursuant to the First, Fourth and Fourteenth Amendments to the United States Constitution and under Illinois state Law. Plaintiff Louis A. Bianchi, the State’s Attorney of McHenry County (hereinafter “Bianchi”), and three of his employees were the victims of politically and financially motivated criminal investigations and prosecutions orchestrated by Defendants Henry C. Tonigan, III and Thomas K. McQueen, in their roles as taxpayer funded special state’s attorneys in McHenry County, in concert with their co-Defendant private investigators, acting as special state’s attorney investigators. A few paragraphs later, the complaint explains that At all relevant times [Tonigan and McQueen] were attorneys, appointed as a taxpayer funded McHenry County special state’s attorney and an assistant to the special state’s attorney, respectively, and were acting under the color of law and with the same power and authority as a duly elected state’s attorney with respect to matters committed to their discretion. Compl. ¶ 5. See also Compl. ¶ 86 (“Judge Gordon Graham signed an order appointing Defendants McQueen and Tonigan as special state’s attorneys to investigate and prosecute individuals for using their official position in the SAO to give benefits in criminal prosecutions to friends, relatives, and supporters”). At this stage, the Court is focused on Plaintiffs’ complaint. As the quoted passages indicate, apart from their response to Defendants’ motion to dismiss, Plaintiffs consistently have alleged that McQueen misused his appointment and authority as a special prosecutor to violate their constitutional rights. In deciding Defendants’ motion to dismiss, the Court must hold Plaintiffs to those

co-Defendant private investigators, acting as special state’s attorney investigators. A few paragraphs later, the complaint explains that At all relevant times [Tonigan and McQueen] were attorneys, appointed as a taxpayer funded McHenry County special state’s attorney and an assistant to the special state’s attorney, respectively, and were acting under the color of law and with the same power and authority as a duly elected state’s attorney with respect to matters committed to their discretion. Compl. ¶ 5. See also Compl. ¶ 86 (“Judge Gordon Graham signed an order appointing Defendants McQueen and Tonigan as special state’s attorneys to investigate and prosecute individuals for using their official position in the SAO to give benefits in criminal prosecutions to friends, relatives, and supporters”). At this stage, the Court is focused on Plaintiffs’ complaint. As the quoted passages indicate, apart from their response to Defendants’ motion to dismiss, Plaintiffs consistently have alleged that McQueen misused his appointment and authority as a special prosecutor to violate their constitutional rights. In deciding Defendants’ motion to dismiss, the Court must hold Plaintiffs to those assertions. See, e.g., Odom v. Sheriff and Staff 2007 WL 1238723, at *2 (C.D.Ill. Apr. 26, 2007) (it is “well established that a plaintiff cannot amend his complaint by statements made in briefs filed in opposition to a motion to dismiss”) (citing Perkins v. Silverstein, 939 F.2d 463, 471 n. 6 (7th Cir.1991)); Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996). Although in certain circumstances the Court may consider additional facts consistent with a complaint in deciding a motion to dismiss, it cannot consider facts that contradict the complaint — as any claim that McQueen was not a special prosecutor surely would. See, e.g., Flying J, Inc. v. City of New Haven, 549 F.3d 538, 542 n. 1 (7th Cir. 2008); Help At Home, Inc. v. Medical Capital, LLC, 260 F.3d 748, 752-53 (7th Cir.2001) (courts may consider facts in a brief opposing a motion to dismiss “if the facts are consistent with the allegations of the complaint”); UNA Worldwide, LLC v. Orsello, 2012 WL 6115661, at *3 (N.D.Ill. Dec. 10, 2012). That

assertions. See, e.g., Odom v. Sheriff and Staff 2007 WL 1238723, at *2 (C.D.Ill. Apr. 26, 2007) (it is “well established that a plaintiff cannot amend his complaint by statements made in briefs filed in opposition to a motion to dismiss”) (citing Perkins v. Silverstein, 939 F.2d 463, 471 n. 6 (7th Cir.1991)); Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996). Although in certain circumstances the Court may consider additional facts consistent with a complaint in deciding a motion to dismiss, it cannot consider facts that contradict the complaint — as any claim that McQueen was not a special prosecutor surely would. See, e.g., Flying J, Inc. v. City of New Haven, 549 F.3d 538, 542 n. 1 (7th Cir. 2008); Help At Home, Inc. v. Medical Capital, LLC, 260 F.3d 748, 752-53 (7th Cir.2001) (courts may consider facts in a brief opposing a motion to dismiss “if the facts are consistent with the allegations of the complaint”); UNA Worldwide, LLC v. Orsello, 2012 WL 6115661, at *3 (N.D.Ill. Dec. 10, 2012). That said, McQueen is not entitled to absolute immunity just because he was employed as a prosecutor at the times relevant to this case. What matters for absolute immunity is whether the conduct that Plaintiffs allege violated their rights was within the scope of McQueen’s prosecutorial duties. Plaintiffs believe that McQueen (individually and in concert with others) violated their federal rights in three ways: (1) by causing their false arrest (Counts I, II, and III), (2) violating their due process rights (Counts IV and V), and (3) prosecuting them in retaliation for Bianchi’s decision to run for and remain in office (Counts VI and VII). Since the conduct supporting each claim is somewhat different, the Court considers each theory separately. False Arrest. Plaintiffs were arrested after they were indicted by a grand jury and warrants were issued based on the indictments. McQueen cannot be liable for false arrest if Plaintiffs were arrested because of witness testimony or his presentation of witness testimony before the grand jury. A prosecutor’s conduct before a grand jury is absolutely immune. The

said, McQueen is not entitled to absolute immunity just because he was employed as a prosecutor at the times relevant to this case. What matters for absolute immunity is whether the conduct that Plaintiffs allege violated their rights was within the scope of McQueen’s prosecutorial duties. Plaintiffs believe that McQueen (individually and in concert with others) violated their federal rights in three ways: (1) by causing their false arrest (Counts I, II, and III), (2) violating their due process rights (Counts IV and V), and (3) prosecuting them in retaliation for Bianchi’s decision to run for and remain in office (Counts VI and VII). Since the conduct supporting each claim is somewhat different, the Court considers each theory separately. False Arrest. Plaintiffs were arrested after they were indicted by a grand jury and warrants were issued based on the indictments. McQueen cannot be liable for false arrest if Plaintiffs were arrested because of witness testimony or his presentation of witness testimony before the grand jury. A prosecutor’s conduct before a grand jury is absolutely immune. The Supreme Court explained this settled law in Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), a § 1983 case involving a prosecutor’s claim of absolute immunity for his conduct at a probable cause hearing: Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceeding), and also for eliciting false and defamatory testimony from witnesses. See, e.g., Yaselli v. Goff, 12 F.2d 396, 401-02 (2d Cir.1926), summarily aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927) [additional citations omitted]. See also King v. Skinner, Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B.1772), where Lord Mansfield observed that “neither party, witness, counsel, jury, or Judge can be put to answer civilly or criminally, for words spoken in office.” This immunity extended to “any hearing before a tribunal which performed] a judicial function.” W. Prosser, Law of Torts, § 94, pp. 826-27 (1941) [additional citations omitted].

Supreme Court explained this settled law in Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), a § 1983 case involving a prosecutor’s claim of absolute immunity for his conduct at a probable cause hearing: Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceeding), and also for eliciting false and defamatory testimony from witnesses. See, e.g., Yaselli v. Goff, 12 F.2d 396, 401-02 (2d Cir.1926), summarily aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927) [additional citations omitted]. See also King v. Skinner, Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B.1772), where Lord Mansfield observed that “neither party, witness, counsel, jury, or Judge can be put to answer civilly or criminally, for words spoken in office.” This immunity extended to “any hearing before a tribunal which performed] a judicial function.” W. Prosser, Law of Torts, § 94, pp. 826-27 (1941) [additional citations omitted]. In Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), for example, this Court affirmed a decision by the Circuit Court of Appeals for the Second Circuit in which the court had held that the common-law immunity extended to a prosecutor’s conduct before a grand jury. [Additional citations omitted.] As this and other cases indicate, pretrial court appearances by the prosecutor in support of taking criminal action against a suspect present a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor. Id. at 489-92, 111 S.Ct. 1934. Of course, if a prosecutor manufactured incriminating evidence while investigating a case, presented that manufactured evidence to the grand jury, and the grand jury returned an indictment, he could not claim absolute immunity for what he did during the investigation. A judicial proceeding does not automatically immunize misconduct that happened before it. See Buckley, 509 U.S. at 276, 113 S.Ct. 2606 (“A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after

In Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), for example, this Court affirmed a decision by the Circuit Court of Appeals for the Second Circuit in which the court had held that the common-law immunity extended to a prosecutor’s conduct before a grand jury. [Additional citations omitted.] As this and other cases indicate, pretrial court appearances by the prosecutor in support of taking criminal action against a suspect present a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor. Id. at 489-92, 111 S.Ct. 1934. Of course, if a prosecutor manufactured incriminating evidence while investigating a case, presented that manufactured evidence to the grand jury, and the grand jury returned an indictment, he could not claim absolute immunity for what he did during the investigation. A judicial proceeding does not automatically immunize misconduct that happened before it. See Buckley, 509 U.S. at 276, 113 S.Ct. 2606 (“A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as ‘preparation’ for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.”); Whitlock v. Brueggemann, 682 F.3d 567, 578 (7th Cir.2012); Fields, 672 F.3d at 514. But, by the same token, just because a prosecutor was involved in a case in an investigatory role does not mean that he is deprived of immunity for what he did as a prosecutor. “[T]he question of immunity turns on the capacity or function that the prosecutor was performing at the time of the alleged wrongful conduct.” Whitlock, 682 F.3d at 579 (emphasis added). In this case, at least for Plaintiffs’ false arrest claims, the only allegations against McQueen are that he interviewed witnesses and reviewed Quest Defendants’ reports of interviews with witnesses and that those witnesses and Quest Defendants testified and produced documents to the grand jury. McQueen, too, is alleged to have testified before the grand jury. The

a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as ‘preparation’ for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.”); Whitlock v. Brueggemann, 682 F.3d 567, 578 (7th Cir.2012); Fields, 672 F.3d at 514. But, by the same token, just because a prosecutor was involved in a case in an investigatory role does not mean that he is deprived of immunity for what he did as a prosecutor. “[T]he question of immunity turns on the capacity or function that the prosecutor was performing at the time of the alleged wrongful conduct.” Whitlock, 682 F.3d at 579 (emphasis added). In this case, at least for Plaintiffs’ false arrest claims, the only allegations against McQueen are that he interviewed witnesses and reviewed Quest Defendants’ reports of interviews with witnesses and that those witnesses and Quest Defendants testified and produced documents to the grand jury. McQueen, too, is alleged to have testified before the grand jury. The claim is therefore that (1) witnesses gave false or misleading testimony to the grand jury that included rumor, hearsay, and manufactured and/or fabricated evidence, (2) that testimony persuaded the grand jury to issue an indictment, and (3) that indictment caused an arrest. Plaintiffs’ false arrest claim against McQueen thus is an attack on grand jury testimony and a prosecutor’s conduct before a grand jury (as a witness and a lawyer). This is not a case where a prosecutor is claiming immunity for investigatory conduct just because it was part of a series of events that led to a judicial proceeding. Here, it is plainly conduct at a judicial proceeding — grand jury testimony — that Plaintiffs claim caused their injuries related to the allegedly false arrest. In order to find that the indictment, and so the arrest, was improper, the Court would have to scrutinize grand jury transcripts and decide whether witnesses (including McQueen) perjured themselves before the grand jury. That, however, is precisely what the Court cannot do in deciding a claim for money damages

claim is therefore that (1) witnesses gave false or misleading testimony to the grand jury that included rumor, hearsay, and manufactured and/or fabricated evidence, (2) that testimony persuaded the grand jury to issue an indictment, and (3) that indictment caused an arrest. Plaintiffs’ false arrest claim against McQueen thus is an attack on grand jury testimony and a prosecutor’s conduct before a grand jury (as a witness and a lawyer). This is not a case where a prosecutor is claiming immunity for investigatory conduct just because it was part of a series of events that led to a judicial proceeding. Here, it is plainly conduct at a judicial proceeding — grand jury testimony — that Plaintiffs claim caused their injuries related to the allegedly false arrest. In order to find that the indictment, and so the arrest, was improper, the Court would have to scrutinize grand jury transcripts and decide whether witnesses (including McQueen) perjured themselves before the grand jury. That, however, is precisely what the Court cannot do in deciding a claim for money damages against a prosecutor. Especially following the Supreme Court’s recent decision in Rehberg, the Court is not persuaded by Plaintiffs’ argument that they are seeking damages for a conspiracy to present false testimony or a conspiracy to prepare witnesses to give false testimony. The rule that witnesses before a grand jury enjoy absolute immunity may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution. Were it otherwise, “a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves” Buckley, 509 U.S. at 283, 113 S.Ct. 2606 (Kennedy, J. concurring in part and dissenting in part) [additional citations omitted]. In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of

against a prosecutor. Especially following the Supreme Court’s recent decision in Rehberg, the Court is not persuaded by Plaintiffs’ argument that they are seeking damages for a conspiracy to present false testimony or a conspiracy to prepare witnesses to give false testimony. The rule that witnesses before a grand jury enjoy absolute immunity may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution. Were it otherwise, “a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves” Buckley, 509 U.S. at 283, 113 S.Ct. 2606 (Kennedy, J. concurring in part and dissenting in part) [additional citations omitted]. In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity so easily frustrated. 132 S.Ct. at 1506-07. That does not immunize all preparation or turn all investigation into preparation. But that is not what is going on here. Here, the relevant allegations are that evidence was presented to a grand jury and that the evidence was reviewed before it was presented. Plaintiffs cannot “reframe” their challenge to (allegedly) false or repudiated grand jury testimony by pointing to alleged misconduct at the outset of the investigation. It was not the mere existence of an investigation that caused Plaintiffs’ arrest; testimony before the grand jury did that. Plaintiffs have not stated a plausible claim that improper actions by McQueen outside the scope of his duties as a prosecutor infected the grand jury proceedings and so somehow caused Plaintiffs’ arrests. One more time, recall the alleged causal chain. Amy Dalby, an SAO employee, shared confidential documents with Bianchi’s Republican primary opponent and the media. Bianchi got a special prosecutor appointed. Dalby was investigated and eventually pled guilty to

his intended testimony. We decline to endorse a rule of absolute immunity so easily frustrated. 132 S.Ct. at 1506-07. That does not immunize all preparation or turn all investigation into preparation. But that is not what is going on here. Here, the relevant allegations are that evidence was presented to a grand jury and that the evidence was reviewed before it was presented. Plaintiffs cannot “reframe” their challenge to (allegedly) false or repudiated grand jury testimony by pointing to alleged misconduct at the outset of the investigation. It was not the mere existence of an investigation that caused Plaintiffs’ arrest; testimony before the grand jury did that. Plaintiffs have not stated a plausible claim that improper actions by McQueen outside the scope of his duties as a prosecutor infected the grand jury proceedings and so somehow caused Plaintiffs’ arrests. One more time, recall the alleged causal chain. Amy Dalby, an SAO employee, shared confidential documents with Bianchi’s Republican primary opponent and the media. Bianchi got a special prosecutor appointed. Dalby was investigated and eventually pled guilty to computer tampering. Dalby then petitioned Judge Graham to appoint a special prosecutor to investigate Bianchi, alleging that he abused his position at the SAO. Judge Graham granted Dalby’s petition and appointed Tonigan and McQueen as special prosecutors. Tonigan and McQueen interviewed Dalby and others and asked for Judge Graham to expand the scope of their investigation. Judge Graham granted that request, and there were more interviews and documents produced. A grand jury convened and witnesses (including McQueen) appeared before it. The grand jury indicted Plaintiffs, and the indictments led to their arrests. Where is McQueen’s misconduct outside his role as a prosecutor (or before the grand jury)? Plaintiffs point to the Tonigan letter (referenced above) through which they allege that Tonigan and McQueen manipulated Judge Graham to have their mandate expanded. But that did not cause Plaintiffs’ arrests. At most, that led to interviews, and those interviews did not violate the Fourth Amendment. Plaintiffs (quite properly) are not claiming a right not to be investigated or talked about. Individuals were interviewed and then testified before

computer tampering. Dalby then petitioned Judge Graham to appoint a special prosecutor to investigate Bianchi, alleging that he abused his position at the SAO. Judge Graham granted Dalby’s petition and appointed Tonigan and McQueen as special prosecutors. Tonigan and McQueen interviewed Dalby and others and asked for Judge Graham to expand the scope of their investigation. Judge Graham granted that request, and there were more interviews and documents produced. A grand jury convened and witnesses (including McQueen) appeared before it. The grand jury indicted Plaintiffs, and the indictments led to their arrests. Where is McQueen’s misconduct outside his role as a prosecutor (or before the grand jury)? Plaintiffs point to the Tonigan letter (referenced above) through which they allege that Tonigan and McQueen manipulated Judge Graham to have their mandate expanded. But that did not cause Plaintiffs’ arrests. At most, that led to interviews, and those interviews did not violate the Fourth Amendment. Plaintiffs (quite properly) are not claiming a right not to be investigated or talked about. Individuals were interviewed and then testified before the grand jury. In the context of this case at least, interviewing a witness before his or her testimony before a grand jury is conduct within the scope of McQueen’s role as a prosecutor and so is absolutely immune. See Rehberg, 132 S.Ct. at 1506-07. Testimony before the grand jury is absolutely immune. Id. And, as has long been the rule, a prosecutor’s conduct before a grand jury is absolutely immune. Burns, 500 U.S. at 489-92, 111 S.Ct. 1934. Finally, even if McQueen were not entitled to absolute immunity, he would be entitled to qualified immunity, because there was no violation of Plaintiffs’ rights against false arrest. False arrest is detention without legal process. See Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Abur-Shawish v. United States, 2011 WL 3687618, at *6 (E.D.Wis. Aug. 22, 2011) (“false arrest and false imprisonment occur only when a person is detained without legal process”). In this case, Plaintiffs’ arrests were supported by grand jury indictments and warrants. By definition, therefore, no false arrest

the grand jury. In the context of this case at least, interviewing a witness before his or her testimony before a grand jury is conduct within the scope of McQueen’s role as a prosecutor and so is absolutely immune. See Rehberg, 132 S.Ct. at 1506-07. Testimony before the grand jury is absolutely immune. Id. And, as has long been the rule, a prosecutor’s conduct before a grand jury is absolutely immune. Burns, 500 U.S. at 489-92, 111 S.Ct. 1934. Finally, even if McQueen were not entitled to absolute immunity, he would be entitled to qualified immunity, because there was no violation of Plaintiffs’ rights against false arrest. False arrest is detention without legal process. See Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Abur-Shawish v. United States, 2011 WL 3687618, at *6 (E.D.Wis. Aug. 22, 2011) (“false arrest and false imprisonment occur only when a person is detained without legal process”). In this case, Plaintiffs’ arrests were supported by grand jury indictments and warrants. By definition, therefore, no false arrest could have occurred. See Abu-Shawish, 2011 WL 3687618, at *6. The unlawful procurement of process could be a different tort — malicious prosecution, perhaps — but it is not false arrest. See id. at *6 n. 2. Due Process. McQueen is alleged to have violated Plaintiffs’ due process rights by “causing [Plaintiffs’] wrongful charging and continued prosecution.” In opposing McQueen’s motion to dismiss, Plaintiffs explain their claim against McQueen as “based on the fact that McQueen deliberately fabricated false evidence and withheld exculpatory evidence which directly caused the wrongful charging and prosecution of Plaintiffs and denied their rights to a fair trial.” To the extent that this claim attacks the grand jury indictments and subsequent arrests, Plaintiffs’ due process claims fail for the same reasons as their Fourth Amendment claims. See also Imbler, 424 U.S. at 422, 96 S.Ct. 984. To the extent that these claims challenge the prosecution itself, McQueen is absolutely immune. Id. at 427, 96 S.Ct. 984; Fields, 672 F.3d at 512. Plaintiffs’ attempt to avoid the obvious immunity problems with their due

could have occurred. See Abu-Shawish, 2011 WL 3687618, at *6. The unlawful procurement of process could be a different tort — malicious prosecution, perhaps — but it is not false arrest. See id. at *6 n. 2. Due Process. McQueen is alleged to have violated Plaintiffs’ due process rights by “causing [Plaintiffs’] wrongful charging and continued prosecution.” In opposing McQueen’s motion to dismiss, Plaintiffs explain their claim against McQueen as “based on the fact that McQueen deliberately fabricated false evidence and withheld exculpatory evidence which directly caused the wrongful charging and prosecution of Plaintiffs and denied their rights to a fair trial.” To the extent that this claim attacks the grand jury indictments and subsequent arrests, Plaintiffs’ due process claims fail for the same reasons as their Fourth Amendment claims. See also Imbler, 424 U.S. at 422, 96 S.Ct. 984. To the extent that these claims challenge the prosecution itself, McQueen is absolutely immune. Id. at 427, 96 S.Ct. 984; Fields, 672 F.3d at 512. Plaintiffs’ attempt to avoid the obvious immunity problems with their due process claims against McQueen by arguing that their case is just like Whitlock, where evi dence was fabricated prior to the prosecutor’s assumption of his prosecutorial role. 682 F.3d at 579-80. In this case, unlike Whitlock, Plaintiffs’ due process claims concern alleged misconduct before the grand jury and the events that followed. The complaint recites a variety of allegedly untrue statements that McQueen (and other witnesses) made to the grand jury. For instance: Defendant McQueen improperly testified as a witness to the following and unsworn false statements of fact: i) that County employees were given “comp time” for attending parades and evening public events which were political in nature; ii) that Thomas Carroll, a former ASA, was directly told that he was expected to participate in political activities when he was hired as chief of the civil division; iii) that political pressure was brought to bear on SAO employees during Bianchi’s tenure; iv) that all of the documents McQueen presented to the special grand jury, which came from the hard drive of a computer used by Joyce Synek, were political

process claims against McQueen by arguing that their case is just like Whitlock, where evi dence was fabricated prior to the prosecutor’s assumption of his prosecutorial role. 682 F.3d at 579-80. In this case, unlike Whitlock, Plaintiffs’ due process claims concern alleged misconduct before the grand jury and the events that followed. The complaint recites a variety of allegedly untrue statements that McQueen (and other witnesses) made to the grand jury. For instance: Defendant McQueen improperly testified as a witness to the following and unsworn false statements of fact: i) that County employees were given “comp time” for attending parades and evening public events which were political in nature; ii) that Thomas Carroll, a former ASA, was directly told that he was expected to participate in political activities when he was hired as chief of the civil division; iii) that political pressure was brought to bear on SAO employees during Bianchi’s tenure; iv) that all of the documents McQueen presented to the special grand jury, which came from the hard drive of a computer used by Joyce Synek, were political in nature; and v) that Joan Hoffman, an administrative assistant in the SAO, provided McQueen political documents from her SAO computer. Compl. ¶ 51. That is an attack on a prosecutor’s (or a witness’) conduct before the grand jury. Even if the complaint does accurately recount what McQueen said, and even if what he said was false, he is not answerable in damages for his conduct before the grand jury. The Supreme Court has admonished that prosecutorial immunity has a downside — namely, that it can “leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” Imbler, 424 U.S. at 427-28, 96 S.Ct. 984. This Court offers no opinion on whether Plaintiffs were “genuinely wronged”; for the purposes of the immunity questions presented at this stage of the case, that

in nature; and v) that Joan Hoffman, an administrative assistant in the SAO, provided McQueen political documents from her SAO computer. Compl. ¶ 51. That is an attack on a prosecutor’s (or a witness’) conduct before the grand jury. Even if the complaint does accurately recount what McQueen said, and even if what he said was false, he is not answerable in damages for his conduct before the grand jury. The Supreme Court has admonished that prosecutorial immunity has a downside — namely, that it can “leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” Imbler, 424 U.S. at 427-28, 96 S.Ct. 984. This Court offers no opinion on whether Plaintiffs were “genuinely wronged”; for the purposes of the immunity questions presented at this stage of the case, that inquiry is irrelevant. What matters is that Plaintiffs’ claims are against a prosecutor for prosecuting a case. If these claims were not barred by prosecutorial immunity, they still would be subject to dismissal because McQueen would be entitled to qualified immunity. If Plaintiffs’ due process claims are that McQueen’s fabrication of evidence caused their arrests, then Plaintiffs fail to state a claim, for it would be “nothing more than a recast of [their] Fourth Amendment false arrest claim.” McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir.2003). “The Supreme Court has made it clear that a substantive due process claim may not be maintained when a specific constitutional provision (here the Fourth Amendment) protects the right allegedly violated.” Id. “Moreover, to the extent [Plaintiffs] maintain[] that [McQueen] denied [them] due process by causing [them] to suffer ‘[a] deprivation of liberty from a prosecution * * * deliberately obtained from the use of false evidence,’ [their] claim is essentially one for malicious prosecution.” Id. And “the existence of a tort claim under state law knocks out any

inquiry is irrelevant. What matters is that Plaintiffs’ claims are against a prosecutor for prosecuting a case. If these claims were not barred by prosecutorial immunity, they still would be subject to dismissal because McQueen would be entitled to qualified immunity. If Plaintiffs’ due process claims are that McQueen’s fabrication of evidence caused their arrests, then Plaintiffs fail to state a claim, for it would be “nothing more than a recast of [their] Fourth Amendment false arrest claim.” McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir.2003). “The Supreme Court has made it clear that a substantive due process claim may not be maintained when a specific constitutional provision (here the Fourth Amendment) protects the right allegedly violated.” Id. “Moreover, to the extent [Plaintiffs] maintain[] that [McQueen] denied [them] due process by causing [them] to suffer ‘[a] deprivation of liberty from a prosecution * * * deliberately obtained from the use of false evidence,’ [their] claim is essentially one for malicious prosecution.” Id. And “the existence of a tort claim under state law knocks out any constitutional theory of malicious prosecution.” Id. (quoting Newsome v. McCabe, 256 F.3d 747, 750 (7th Cir.2001)). To the extent that the claim is based on nondisclosure of exculpatory evidence — a Brady related claim — then, because the prosecutions ended in acquittals, Plaintiffs “would need to show that ‘the decision to go to trial would have been altered by the desired disclosure.’ ” Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir.2010) (quoting Bielanski v. County of Kane, 550 F.3d 632, 644 (7th Cir.2008)). In this case, however, the prosecutors were not “bilked” into bringing charges. See Buckley v. Fitzsimmons, 20 F.3d 789, 797 (7th Cir.1994); Fields, 672 F.3d at 518. McQueen was a prosecutor and he was not tricked by his own alleged deceptions and failures to disclose. And Plaintiffs’ complaint does not support a claim that McQueen “bilked” Tonigan. As already explained, Plaintiffs’ complaint alleges that McQueen and Tonigan were both vested with authority as prosecutors and that they both reviewed witness interviews and prosecuted the cases. Retaliatory Prosecution. Plaintiffs allege that

constitutional theory of malicious prosecution.” Id. (quoting Newsome v. McCabe, 256 F.3d 747, 750 (7th Cir.2001)). To the extent that the claim is based on nondisclosure of exculpatory evidence — a Brady related claim — then, because the prosecutions ended in acquittals, Plaintiffs “would need to show that ‘the decision to go to trial would have been altered by the desired disclosure.’ ” Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir.2010) (quoting Bielanski v. County of Kane, 550 F.3d 632, 644 (7th Cir.2008)). In this case, however, the prosecutors were not “bilked” into bringing charges. See Buckley v. Fitzsimmons, 20 F.3d 789, 797 (7th Cir.1994); Fields, 672 F.3d at 518. McQueen was a prosecutor and he was not tricked by his own alleged deceptions and failures to disclose. And Plaintiffs’ complaint does not support a claim that McQueen “bilked” Tonigan. As already explained, Plaintiffs’ complaint alleges that McQueen and Tonigan were both vested with authority as prosecutors and that they both reviewed witness interviews and prosecuted the cases. Retaliatory Prosecution. Plaintiffs allege that McQueen, “individually, jointly and in conspiracy with [the other Defendants] caused the wrongful charging and continued prosecution” of Plaintiffs. But “[a] Bivens (or § 1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute.” Hartman v. Moore, 547 U.S. 250, 261-62, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). Moreover, it is worth noting that the complaint does not allege that McQueen had retaliatory animus against Bianchi. It certainly alleges that Bianchi’s Republican opponents wanted to unseat him, but it does not say why McQueen— appointed by Judge Graham — should be counted among those political opponents. In fact, the complaint is devoid of any allegation that either Tonigan or McQueen (or any other Defendant) even knew any of the Plaintiffs prior to their appointment by Judge Graham, much less had any political axe to grind or other animus toward them. According to the complaint, Bianchi’s “political enemies” were Dalby, Kristen Foley, an Assistant State’s Attorney whom Bianchi had demoted, and Daniel Regna,

McQueen, “individually, jointly and in conspiracy with [the other Defendants] caused the wrongful charging and continued prosecution” of Plaintiffs. But “[a] Bivens (or § 1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute.” Hartman v. Moore, 547 U.S. 250, 261-62, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). Moreover, it is worth noting that the complaint does not allege that McQueen had retaliatory animus against Bianchi. It certainly alleges that Bianchi’s Republican opponents wanted to unseat him, but it does not say why McQueen— appointed by Judge Graham — should be counted among those political opponents. In fact, the complaint is devoid of any allegation that either Tonigan or McQueen (or any other Defendant) even knew any of the Plaintiffs prior to their appointment by Judge Graham, much less had any political axe to grind or other animus toward them. According to the complaint, Bianchi’s “political enemies” were Dalby, Kristen Foley, an Assistant State’s Attorney whom Bianchi had demoted, and Daniel Regna, Bianchi’s 2008 opponent in the primary election for State’s Attorney (Cmplt. ¶¶ 1, 17-24)—none of whom is a Defendant in this case. Accepting Bianchi’s characterization that he had “political enemies,” it does not follow that the Court must assume that every action against him is improperly motivated. 2. Quest Defendants Judge Graham authorized Tonigan and McQueen to employ the Quest Defendants as “special state’s attorney investigators.” Compl. at page 2. According to Plaintiffs’ complaint, the Quest Defendants were directed by McQueen “and/or” Tonigan “to conduct certain interviews for the purpose of manufacturing and fabricating evidence.” Compl. ¶ 42. “After conducting interviews, the Defendant Quest Investigators informed Tonigan and/or McQueen of information related during the interviews.” Compl. ¶ 44; see also compl. ¶ 90 (“The interviews conducted by Defendants Scigalski and Hanretty occurred at the direction of Defendants Tonigan and/or McQueen. After they were completed, the Defendant Quest Investigators informed Defendants Tonigan and/or McQueen of the substance of several interviews.”). “After consulting with Defendants Tonigan and/or McQueen, the Defendant Quest In vestigators prepared reports regarding certain interviews.” Compl.

Bianchi’s 2008 opponent in the primary election for State’s Attorney (Cmplt. ¶¶ 1, 17-24)—none of whom is a Defendant in this case. Accepting Bianchi’s characterization that he had “political enemies,” it does not follow that the Court must assume that every action against him is improperly motivated. 2. Quest Defendants Judge Graham authorized Tonigan and McQueen to employ the Quest Defendants as “special state’s attorney investigators.” Compl. at page 2. According to Plaintiffs’ complaint, the Quest Defendants were directed by McQueen “and/or” Tonigan “to conduct certain interviews for the purpose of manufacturing and fabricating evidence.” Compl. ¶ 42. “After conducting interviews, the Defendant Quest Investigators informed Tonigan and/or McQueen of information related during the interviews.” Compl. ¶ 44; see also compl. ¶ 90 (“The interviews conducted by Defendants Scigalski and Hanretty occurred at the direction of Defendants Tonigan and/or McQueen. After they were completed, the Defendant Quest Investigators informed Defendants Tonigan and/or McQueen of the substance of several interviews.”). “After consulting with Defendants Tonigan and/or McQueen, the Defendant Quest In vestigators prepared reports regarding certain interviews.” Compl. ¶ 45. In furtherance of the alleged conspiracy with McQueen and Tonigan against Plaintiffs, the Quest Defendants are accused of knowingly including falsehoods in their reports. “After the special grand jury was convened, Defendants Tonigan and/or McQueen continued to lead the politically motivated investigation by interviewing witnesses personally and directing the Quest investigators who to interview, what questions to ask, and what information to document.” Compl. ¶ 48. “The Defendant Quest Investigators served search warrants, subpoenas, and subpoenas duces tecum at the direction of Defendants Tonigan and McQueen.” Compl. ¶ 49. Those subpoenas were allegedly “unilaterally issued” by Tonigan and McQueen, in violation of Illinois law. Witnesses then produced documents and appeared before the grand jury. Compl. ¶¶ 49-50. The Quest Defendants were among the witnesses who allegedly testified falsely against Plaintiffs. See, e.g., Compl. ¶¶ 53-56, 73; see also Compl. ¶¶ 95-97 (alleged misconduct before grand jury at the direction of Tonigan and McQueen). In this way, and as described in Section I, above, the Quest Defendants were instrumental in Plaintiffs’ investigation and prosecution. The Quest

¶ 45. In furtherance of the alleged conspiracy with McQueen and Tonigan against Plaintiffs, the Quest Defendants are accused of knowingly including falsehoods in their reports. “After the special grand jury was convened, Defendants Tonigan and/or McQueen continued to lead the politically motivated investigation by interviewing witnesses personally and directing the Quest investigators who to interview, what questions to ask, and what information to document.” Compl. ¶ 48. “The Defendant Quest Investigators served search warrants, subpoenas, and subpoenas duces tecum at the direction of Defendants Tonigan and McQueen.” Compl. ¶ 49. Those subpoenas were allegedly “unilaterally issued” by Tonigan and McQueen, in violation of Illinois law. Witnesses then produced documents and appeared before the grand jury. Compl. ¶¶ 49-50. The Quest Defendants were among the witnesses who allegedly testified falsely against Plaintiffs. See, e.g., Compl. ¶¶ 53-56, 73; see also Compl. ¶¶ 95-97 (alleged misconduct before grand jury at the direction of Tonigan and McQueen). In this way, and as described in Section I, above, the Quest Defendants were instrumental in Plaintiffs’ investigation and prosecution. The Quest Defendants argue that they are entitled to qualified immunity for their conduct as private investigators temporarily employed by the state, see Filarsky v. Delia, - U.S. -, 132 S.Ct. 1657, 1665-68, 182 L.Ed.2d 662 (2012) (private party temporarily employed by government entitled to seek qualified immunity for conduct as investigator), and absolute immunity for their grand jury testimony, see, e.g., Rehberg, 132 S.Ct. at 1506. The Court agrees. With regard to investigatory conduct, the Quest Defendants could not have committed a constitutional tort by simply interviewing witnesses and preparing reports. See, e.g., Buckley, 509 U.S. at 281, 113 S.Ct. 2606 (Scalia, J., concurring) (Justice Scalia was “aware of no authority for the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise harms him, violates the Constitution”). An investigator could commit a constitutional tort by fabricating evidence and tricking a prosecutor into bringing charges. Here, however, there was no trick. According to the complaint, McQueen and Tonigan guided the Quest

Defendants argue that they are entitled to qualified immunity for their conduct as private investigators temporarily employed by the state, see Filarsky v. Delia, - U.S. -, 132 S.Ct. 1657, 1665-68, 182 L.Ed.2d 662 (2012) (private party temporarily employed by government entitled to seek qualified immunity for conduct as investigator), and absolute immunity for their grand jury testimony, see, e.g., Rehberg, 132 S.Ct. at 1506. The Court agrees. With regard to investigatory conduct, the Quest Defendants could not have committed a constitutional tort by simply interviewing witnesses and preparing reports. See, e.g., Buckley, 509 U.S. at 281, 113 S.Ct. 2606 (Scalia, J., concurring) (Justice Scalia was “aware of no authority for the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise harms him, violates the Constitution”). An investigator could commit a constitutional tort by fabricating evidence and tricking a prosecutor into bringing charges. Here, however, there was no trick. According to the complaint, McQueen and Tonigan guided the Quest Defendants’ actions and were told what the Quest Defendants learned in their interviews. The alleged constitutional tort, then, is not the investigators’ conduct, but the prosecutors’ one-sided presentation of the evidence, including false testimony before the grand jury. McQueen, the remaining prosecutor-Defendant, is entitled to absolute immunity for his presentation of evidence to the grand jury and at trial. The Quest Defendants did not commit a constitutional tort by giving the prosecutors information that they (allegedly) chose to distort. See Fields, 672 F.3d at 516-17. Insofar as Plaintiffs’ claims depend on the Quest Defendants’ allegedly false grand jury testimony, they are entitled to absolute immunity. See, e.g., Rehberg, 132 S.Ct. at 1506. Based on the foregoing discussion, all of Plaintiffs’ claims, at least as currently cast, are subject to dismissal. Although Plaintiffs’ operative first amended complaint [70] runs forty-nine pages in length and Defendants’ immunity defenses may be difficult to overcome, the Court will not enter a dismissal with prejudice at this time. Plaintiffs who meet resistance to their complaint through a successful Rule 12(b)(6) motion

Defendants’ actions and were told what the Quest Defendants learned in their interviews. The alleged constitutional tort, then, is not the investigators’ conduct, but the prosecutors’ one-sided presentation of the evidence, including false testimony before the grand jury. McQueen, the remaining prosecutor-Defendant, is entitled to absolute immunity for his presentation of evidence to the grand jury and at trial. The Quest Defendants did not commit a constitutional tort by giving the prosecutors information that they (allegedly) chose to distort. See Fields, 672 F.3d at 516-17. Insofar as Plaintiffs’ claims depend on the Quest Defendants’ allegedly false grand jury testimony, they are entitled to absolute immunity. See, e.g., Rehberg, 132 S.Ct. at 1506. Based on the foregoing discussion, all of Plaintiffs’ claims, at least as currently cast, are subject to dismissal. Although Plaintiffs’ operative first amended complaint [70] runs forty-nine pages in length and Defendants’ immunity defenses may be difficult to overcome, the Court will not enter a dismissal with prejudice at this time. Plaintiffs who meet resistance to their complaint through a successful Rule 12(b)(6) motion generally are allowed at least one opportunity to replead, and that is an especially prudent course to follow where, as here (see pp. 828-29, supra), there is some tension between the version of the facts alleged in the complaint itself and another version of the facts set out in the brief in opposition to the motion to dismiss. See, e.g., Smith v. Union Pac. R. Co., 474 Fed.Appx. 478, 481 (7th Cir.2012) (“Facts raised for the first time in plaintiffs opposition papers should be considered when determining whether to grant leave to amend or dismiss the complaint with or without prejudice”) (citing Broam v. Bogan, 320 F.3d 1023, 1026 n. 2 (9th Cir.2003)). Plaintiffs therefore are given 28 days to replead if they believe that an amended complaint could overcome the immunity obstacles set forth above or otherwise state a claim for relief. The discussion below addresses the disposition of Plaintiffs’ state law claims in the event that (1) Plaintiffs do not replead or (2) no federal claim in Plaintiffs’ second amended complaint survives a

generally are allowed at least one opportunity to replead, and that is an especially prudent course to follow where, as here (see pp. 828-29, supra), there is some tension between the version of the facts alleged in the complaint itself and another version of the facts set out in the brief in opposition to the motion to dismiss. See, e.g., Smith v. Union Pac. R. Co., 474 Fed.Appx. 478, 481 (7th Cir.2012) (“Facts raised for the first time in plaintiffs opposition papers should be considered when determining whether to grant leave to amend or dismiss the complaint with or without prejudice”) (citing Broam v. Bogan, 320 F.3d 1023, 1026 n. 2 (9th Cir.2003)). Plaintiffs therefore are given 28 days to replead if they believe that an amended complaint could overcome the immunity obstacles set forth above or otherwise state a claim for relief. The discussion below addresses the disposition of Plaintiffs’ state law claims in the event that (1) Plaintiffs do not replead or (2) no federal claim in Plaintiffs’ second amended complaint survives a renewed motion to dismiss. B. State Law Claims Plaintiffs have not stated a federal claim, and the Court must now decide whether to retain jurisdiction over Plaintiffs state law claims. See 28 U.S.C. § 1367(c)(3). The Seventh Circuit, animated by the principle of comity, consistently has stated that “it is the well-established law of this circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce v. Eli Lilly, 193 F.3d 496, 501 (7th Cir.1999); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir.1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.1993); see also Wright v. Associated Ins. Co., Inc., 29 F.3d 1244, 1251 (7th Cir.1994) (“When all federal claims have been dismissed prior to trial, the principle of comity encourages federal courts to relinquish supplemental jurisdiction * * * ”); see also Horton v. Schultz, 2010 WL 1541265, at *4 (N.D.Ill. Apr. 16, 2010). In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir.1994), the Seventh

renewed motion to dismiss. B. State Law Claims Plaintiffs have not stated a federal claim, and the Court must now decide whether to retain jurisdiction over Plaintiffs state law claims. See 28 U.S.C. § 1367(c)(3). The Seventh Circuit, animated by the principle of comity, consistently has stated that “it is the well-established law of this circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce v. Eli Lilly, 193 F.3d 496, 501 (7th Cir.1999); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir.1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.1993); see also Wright v. Associated Ins. Co., Inc., 29 F.3d 1244, 1251 (7th Cir.1994) (“When all federal claims have been dismissed prior to trial, the principle of comity encourages federal courts to relinquish supplemental jurisdiction * * * ”); see also Horton v. Schultz, 2010 WL 1541265, at *4 (N.D.Ill. Apr. 16, 2010). In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir.1994), the Seventh Circuit noted that there occasionally are “unusual cases in which the balance of factors to be considered under the pendent jurisdiction doctrine judicial economy, convenience, fairness, and comity-will point to a federal decision of the state-law claims on the merits.” The first example that the Court discussed occurs “when the statute of limitations has run on the pendent claim, precluding the filing of a separate suit in state court.” Id. at 1251. That concern is not present here, however, because Illinois law gives Plaintiff one year from the dismissal on jurisdictional grounds of state law claims in federal court in which to re-file those claims in state court. See 735 ILCS 5/13-217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir.2008). Dismissal without prejudice of the state law claims also is appropriate here because the case is only at the motion to dismiss stage and substantial judicial resources have not been committed to the eight state law counts in Plaintiffs’ complaint. Wright, 29 F.3d at 1251. Finding no justification for departing from that “usual

Circuit noted that there occasionally are “unusual cases in which the balance of factors to be considered under the pendent jurisdiction doctrine judicial economy, convenience, fairness, and comity-will point to a federal decision of the state-law claims on the merits.” The first example that the Court discussed occurs “when the statute of limitations has run on the pendent claim, precluding the filing of a separate suit in state court.” Id. at 1251. That concern is not present here, however, because Illinois law gives Plaintiff one year from the dismissal on jurisdictional grounds of state law claims in federal court in which to re-file those claims in state court. See 735 ILCS 5/13-217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir.2008). Dismissal without prejudice of the state law claims also is appropriate here because the case is only at the motion to dismiss stage and substantial judicial resources have not been committed to the eight state law counts in Plaintiffs’ complaint. Wright, 29 F.3d at 1251. Finding no justification for departing from that “usual practice” in this case, the Court dismisses without prejudice Plaintiffs state law claims without discussing their merit under state law. IV. Conclusion For the reasons stated above, Defendants’ motions to dismiss [73, 80] are granted. Plaintiffs’ federal claims (Counts I — VII) are dismissed with leave to re-plead within 28 days. If Plaintiffs decide not to replead, Plaintiffs’ federal claims will be dismissed with prejudice and the Court will decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims (Counts VIII — XV) and dismiss those claims without prejudice. . Although Plaintiffs assert that "Defendants Tonigan and McQueen” sought to expand their investigative authority (Cmplt. ¶ 33), the factual support for that allegation is a letter to Judge Graham sent by Tonigan on the letterhead of his law firm (id. ¶¶ 34-36). . For example, according to the complaint, the Quest Defendants "informed Tonigan and/or McQueen of information related during [witness] interviews.” Compl. ¶ 44. And, after consulting with "Tonigan and/or McQueen” the Quest Defendants prepared reports summarizing their findings. Again, according to the complaint, at Tonigan’s "and/ or”

practice” in this case, the Court dismisses without prejudice Plaintiffs state law claims without discussing their merit under state law. IV. Conclusion For the reasons stated above, Defendants’ motions to dismiss [73, 80] are granted. Plaintiffs’ federal claims (Counts I — VII) are dismissed with leave to re-plead within 28 days. If Plaintiffs decide not to replead, Plaintiffs’ federal claims will be dismissed with prejudice and the Court will decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims (Counts VIII — XV) and dismiss those claims without prejudice. . Although Plaintiffs assert that "Defendants Tonigan and McQueen” sought to expand their investigative authority (Cmplt. ¶ 33), the factual support for that allegation is a letter to Judge Graham sent by Tonigan on the letterhead of his law firm (id. ¶¶ 34-36). . For example, according to the complaint, the Quest Defendants "informed Tonigan and/or McQueen of information related during [witness] interviews.” Compl. ¶ 44. And, after consulting with "Tonigan and/or McQueen” the Quest Defendants prepared reports summarizing their findings. Again, according to the complaint, at Tonigan’s "and/ or” McQueen’s behest, the reports "included false and manufactured information” about the statements of various current and former assistant state's attorneys. Compl. ¶ 45. . Defendants’ motions to dismiss [41, 47] the original complaint [1] are stricken as moot. Former Defendants Henry C. Tonigan, III, and Kelleher & Buckley, LLC’s motions to dismiss [43, 85] are also stricken as moot. Plaintiffs' Motion to Strike [a] Portion of Thomas' McQueen's Reply Brief or in the Alternative for Leave to File a Sur-Reply [125] is granted in part and denied in part. The motion to strike is denied, the motion to for leave to file a sur-reply is granted and the attached sur-reply [125-1] was considered in deciding Defendants’ motions.

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT GERALD E. ROSEN, Chief Judge. I. INTRODUCTION Plaintiff Tegra Hall commenced this suit in a Michigan court on January 14, 2009, filing what Defendants have aptly termed a “kitchen sink” complaint against her former employer, Defendant Sky Chefs, Inc., and ten of her former co-workers and supervisors at Sky Chefs. In this 143 paragraph, 17 count complaint, Plaintiff asserts claims of race, gender, and religious discrimination and harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2101 et seq., as well as claims of retaliatory discharge under Title VII, the ELCRA, the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and Michigan’s Workers’ Disability Compensation Act (‘WDCA”), Mich. Comp. Laws § 418.101 et seq., and a common-law tort claim of intentional infliction of emotional distress. Defendant Sky Chefs removed the case to this Court on February 20, 2009, citing Plaintiffs assertion of claims arising under federal law. See 28 U.S.C. §§ 1441(a), 1331. By motion filed on March 1, 2010, Defendant Sky Chef and individual Defendants Eric Coleman, Justin Lathem, Jose Venegas, and Karen Damerow seek summary judgment in their favor on each of the claims asserted in Plaintiffs complaint. Among other contentions raised in this motion, Defendants argue (i) that Plaintiff has failed to establish a prima facie case of discrimination based on her race, gender, or religion, (ii) that Plaintiff likewise has failed to establish one or more of the elements of a prima facie case of hostile work environment harassment, (iii) that Plaintiffs claims of retaliatory discharge fail for lack of evidence of a causal connection between any protected activity and her discharge, and because Defendants have identified a legitimate, non-retaliatory reason for terminating Plaintiffs employment, and (iv) that Plaintiff has failed to identify any basis whatsoever for charging Defendant Karen Damerow, Sky Chefs human resources manager, with liability under any of the theories advanced in Plaintiffs complaint. Plaintiff filed a response in opposition to this motion on April

law. See 28 U.S.C. §§ 1441(a), 1331. By motion filed on March 1, 2010, Defendant Sky Chef and individual Defendants Eric Coleman, Justin Lathem, Jose Venegas, and Karen Damerow seek summary judgment in their favor on each of the claims asserted in Plaintiffs complaint. Among other contentions raised in this motion, Defendants argue (i) that Plaintiff has failed to establish a prima facie case of discrimination based on her race, gender, or religion, (ii) that Plaintiff likewise has failed to establish one or more of the elements of a prima facie case of hostile work environment harassment, (iii) that Plaintiffs claims of retaliatory discharge fail for lack of evidence of a causal connection between any protected activity and her discharge, and because Defendants have identified a legitimate, non-retaliatory reason for terminating Plaintiffs employment, and (iv) that Plaintiff has failed to identify any basis whatsoever for charging Defendant Karen Damerow, Sky Chefs human resources manager, with liability under any of the theories advanced in Plaintiffs complaint. Plaintiff filed a response in opposition to this motion on April 5, 2010, addressing several of the points raised in Defendants’ motion and evidently continuing to maintain that all 17 counts of the complaint remain viable following discovery, but leaving some of Defendants’ challenges unanswered. Defendants then filed an April 16, 2010 reply in further support of their motion. Having reviewed the parties’ briefs in support of and opposition to Defendants’ motion, as well as their accompanying exhibits and the record as a whole, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendants’ motion “on the briefs.” See Local Rule 7. 1(f)(2), U.S. District Court, Eastern District of Michigan. For the reasons set forth below, the Court finds that this motion should be granted. II. FACTUAL BACKGROUND Defendant Sky Chefs, Inc. provides catering services to various airlines. Plaintiff Tegra Hall is an African-American female who was hired by Sky Chefs in May of 2005. Plaintiff was employed as a utility worker in Sky Chef

5, 2010, addressing several of the points raised in Defendants’ motion and evidently continuing to maintain that all 17 counts of the complaint remain viable following discovery, but leaving some of Defendants’ challenges unanswered. Defendants then filed an April 16, 2010 reply in further support of their motion. Having reviewed the parties’ briefs in support of and opposition to Defendants’ motion, as well as their accompanying exhibits and the record as a whole, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendants’ motion “on the briefs.” See Local Rule 7. 1(f)(2), U.S. District Court, Eastern District of Michigan. For the reasons set forth below, the Court finds that this motion should be granted. II. FACTUAL BACKGROUND Defendant Sky Chefs, Inc. provides catering services to various airlines. Plaintiff Tegra Hall is an African-American female who was hired by Sky Chefs in May of 2005. Plaintiff was employed as a utility worker in Sky Chef s sanitation department at Detroit Metropolitan Airport, where she performed such tasks as loading, unloading, washing and sanitizing food service trolleys. During her employment with Sky Chefs, Plaintiff was a member of Local 24 of the H.E.R.E. union. A. Plaintiffs Complaints About and Difficulties with Her Co-Workers and Supervisors Between her hiring by Sky Chefs in May of 2005 and her discharge on November 30, 2007, Plaintiff was involved in a number of incidents with co-workers and supervisors, and she lodged a number of complaints about occurrences in the workplace. Sky Chefs human resources manager, Defendant Karen Damerow, testified at her deposition (with some degree of understatement) that Plaintiff “made multiple complaints on multiple issues” during her tenure at Sky Chefs, (see Defendants’ Motion, Damerow Dep. at 48), and Defendants state without contradiction in the brief in support of their motion that “over 2,600 pages of documentation [were] compiled” in investigating and addressing these complaints, (see Defendants’ Motion, Br. in Support at 3). For present purposes, it is not necessary to exhaustively recount these incidents, and a brief

s sanitation department at Detroit Metropolitan Airport, where she performed such tasks as loading, unloading, washing and sanitizing food service trolleys. During her employment with Sky Chefs, Plaintiff was a member of Local 24 of the H.E.R.E. union. A. Plaintiffs Complaints About and Difficulties with Her Co-Workers and Supervisors Between her hiring by Sky Chefs in May of 2005 and her discharge on November 30, 2007, Plaintiff was involved in a number of incidents with co-workers and supervisors, and she lodged a number of complaints about occurrences in the workplace. Sky Chefs human resources manager, Defendant Karen Damerow, testified at her deposition (with some degree of understatement) that Plaintiff “made multiple complaints on multiple issues” during her tenure at Sky Chefs, (see Defendants’ Motion, Damerow Dep. at 48), and Defendants state without contradiction in the brief in support of their motion that “over 2,600 pages of documentation [were] compiled” in investigating and addressing these complaints, (see Defendants’ Motion, Br. in Support at 3). For present purposes, it is not necessary to exhaustively recount these incidents, and a brief summary will suffice. In September of 2006, Plaintiff claimed that coworker (and Defendant) Jose Venegas deliberately rammed the trolleys into trash cans, causing the cans to strike Plaintiff on her legs. (See Plaintiffs Dep. at 195, 209-12.) Plaintiff testified that a supervisor and a lead worker, Defendants Eric Coleman and Derrick Taylor, observed this but took no action. Plaintiff regarded this as an assault and reported the incident to the police. (See Plaintiffs Dep. at 213-14; see also Defendant’s Motion, Ex. E.) Defendant Damerow investigated this incident, and Venegas was disciplined for using inappropriate language. (See Damerow Dep. at 50-54.) About a month later, in October of 2006, Plaintiff claimed that she was run over by a flatbed cart pushed by a co-worker identified only as “Nimur.” (See Plaintiffs Dep. at 62-63, 72-73.) She required medical attention, and once again reported the incident to the police, (see Defendant’s Motion, Ex. F), as well as to an employee hotline, (see Plaintiffs Dep. at 78-79.) Plaintiff also filed a claim for worker’s compensation benefits arising from this incident. Throughout

summary will suffice. In September of 2006, Plaintiff claimed that coworker (and Defendant) Jose Venegas deliberately rammed the trolleys into trash cans, causing the cans to strike Plaintiff on her legs. (See Plaintiffs Dep. at 195, 209-12.) Plaintiff testified that a supervisor and a lead worker, Defendants Eric Coleman and Derrick Taylor, observed this but took no action. Plaintiff regarded this as an assault and reported the incident to the police. (See Plaintiffs Dep. at 213-14; see also Defendant’s Motion, Ex. E.) Defendant Damerow investigated this incident, and Venegas was disciplined for using inappropriate language. (See Damerow Dep. at 50-54.) About a month later, in October of 2006, Plaintiff claimed that she was run over by a flatbed cart pushed by a co-worker identified only as “Nimur.” (See Plaintiffs Dep. at 62-63, 72-73.) She required medical attention, and once again reported the incident to the police, (see Defendant’s Motion, Ex. F), as well as to an employee hotline, (see Plaintiffs Dep. at 78-79.) Plaintiff also filed a claim for worker’s compensation benefits arising from this incident. Throughout this period in 2005-06, and perhaps into 2007, Plaintiff has testified that she was subjected to sexual harassment from her co-workers and supervisors. She testified, for example, that one of her supervisors, Defendant Tracy Steele, “would try to brush his body parts up against mine” and would “tell me what he would like to do to me sexually.” (Plaintiffs Dep. at 108.) Another supervisor, Defendant Darrin Simmons, reportedly “brushed his penis up against [Plaintiffs] bottom” and told her “what type of way he would like to have sex with” her. (Id. at 117.) A lead worker, Defendant Justin Lathem, sang a song, “Shake Your Laffy Taffy,” to Plaintiff, and Defendant Venegas stared, at Plaintiff and made sexually suggestive remarks to her. (Id. at 120-21.) Plaintiff has also testified as to race- and religion-based harassment. She testified, for example, that a number of co-workers frequently called her a “black b*tch,” that Defendants Lathem and Venegas used the “N” word in reference to her, and that several co-workers commented on the color of her skin. (See id. at

this period in 2005-06, and perhaps into 2007, Plaintiff has testified that she was subjected to sexual harassment from her co-workers and supervisors. She testified, for example, that one of her supervisors, Defendant Tracy Steele, “would try to brush his body parts up against mine” and would “tell me what he would like to do to me sexually.” (Plaintiffs Dep. at 108.) Another supervisor, Defendant Darrin Simmons, reportedly “brushed his penis up against [Plaintiffs] bottom” and told her “what type of way he would like to have sex with” her. (Id. at 117.) A lead worker, Defendant Justin Lathem, sang a song, “Shake Your Laffy Taffy,” to Plaintiff, and Defendant Venegas stared, at Plaintiff and made sexually suggestive remarks to her. (Id. at 120-21.) Plaintiff has also testified as to race- and religion-based harassment. She testified, for example, that a number of co-workers frequently called her a “black b*tch,” that Defendants Lathem and Venegas used the “N” word in reference to her, and that several co-workers commented on the color of her skin. (See id. at 96,166, 174-77.) Plaintiff further testified that her co-workers called her a “fake-*ss Christian” and made other derogatory comments about her when they saw her reading her Bible on her lunch break. (See id. at 180-82.) Finally, Plaintiff has testified about mistreatment she suffered in retaliation against her protected activities. She testified that she made complaints of discrimination and harassment to her supervisors and to human resources, but that nothing was done or that, in some instances, the mistreatment intensified. Plaintiff further testified that after she filed a charge of discrimination with the EEOC on October 31, 2007, she was told by supervisor (and Defendant) Tony Hines that her complaint “wasn’t going to go anywhere and that [she] was going to be out of there soon.” (Id. at 89.) In addition, after Plaintiff took FMLA leave from May to September of' 2007 for an injury she sustained while pushing a trolley, she testified that the harassment and mistreatment worsened because her co-workers and supervisors thought she was “gone for good” and they “were not pleased” when she

96,166, 174-77.) Plaintiff further testified that her co-workers called her a “fake-*ss Christian” and made other derogatory comments about her when they saw her reading her Bible on her lunch break. (See id. at 180-82.) Finally, Plaintiff has testified about mistreatment she suffered in retaliation against her protected activities. She testified that she made complaints of discrimination and harassment to her supervisors and to human resources, but that nothing was done or that, in some instances, the mistreatment intensified. Plaintiff further testified that after she filed a charge of discrimination with the EEOC on October 31, 2007, she was told by supervisor (and Defendant) Tony Hines that her complaint “wasn’t going to go anywhere and that [she] was going to be out of there soon.” (Id. at 89.) In addition, after Plaintiff took FMLA leave from May to September of' 2007 for an injury she sustained while pushing a trolley, she testified that the harassment and mistreatment worsened because her co-workers and supervisors thought she was “gone for good” and they “were not pleased” when she returned from this medical leave. (Id. at 219.) Similarly, she attributed some of the write-ups, discipline, and unfavorable treatment she received to the fact that she had filed claims for worker’s compensation benefits. (See id. at 89, 93.) B. Plaintiffs Disciplinary Record and Termination Over the course of her employment with Sky Chefs, Plaintiff was issued a number of verbal and written advisories and disciplinary notices regarding her conduct in the workplace, culminating in her discharge on November 30, 2007. Again, it is not necessary to comprehensively recount Plaintiffs disciplinary record, and a brief summary will suffice. First, Plaintiff was issued a verbal advisory for personal conduct arising from the September 2006 incident in which a coworker reportedly rammed her with a trolley. The documentation for this advisory states that Plaintiff “became loud and argumentative” when approached by management about the incident, and that her manner “was insolent at best, and bordered on insubordination,” and Plaintiff was cautioned that “[b]ehavior of this type ... cannot be tolerated.” (Defendants’ Motion, Ex. H.) In this documentation, it was further observed

returned from this medical leave. (Id. at 219.) Similarly, she attributed some of the write-ups, discipline, and unfavorable treatment she received to the fact that she had filed claims for worker’s compensation benefits. (See id. at 89, 93.) B. Plaintiffs Disciplinary Record and Termination Over the course of her employment with Sky Chefs, Plaintiff was issued a number of verbal and written advisories and disciplinary notices regarding her conduct in the workplace, culminating in her discharge on November 30, 2007. Again, it is not necessary to comprehensively recount Plaintiffs disciplinary record, and a brief summary will suffice. First, Plaintiff was issued a verbal advisory for personal conduct arising from the September 2006 incident in which a coworker reportedly rammed her with a trolley. The documentation for this advisory states that Plaintiff “became loud and argumentative” when approached by management about the incident, and that her manner “was insolent at best, and bordered on insubordination,” and Plaintiff was cautioned that “[b]ehavior of this type ... cannot be tolerated.” (Defendants’ Motion, Ex. H.) In this documentation, it was further observed that Plaintiff had made “approximately 18 complaints, charges and grievances regarding roughly 22 different co-workers and management” in the past several months, and that while “[a]ll complaints have been investigated and will continue to be monitored,” many of the allegations Plaintiff had made in these complaints “could not be validated.” (Id.) On December 7, 2006, Plaintiff was issued a first written advisory for failure to comply with Sky Chefs’ attendance policy, based on several instances of tardiness and an early departure. (See Defendants’ Motion, Ex. I.) In this advisory, Plaintiff was cautioned that “[a]ny future infractions may lead to further disciplinary action u[p] to an[d] including termination.” (Id.) Written advisories also were issued (i) on December 22, 2006 for a security violation, (Defendants’ Motion, Ex. J); (ii) in March of 2007 for personal conduct and for lack of adherence to company standards, with Plaintiff being suspended pending an investigation based upon “witness statements that d[id] not support” allegations she had made against a supervisor, (Defendants’ Motion, Exs. K, M); (iii) again in March of 2007 for

that Plaintiff had made “approximately 18 complaints, charges and grievances regarding roughly 22 different co-workers and management” in the past several months, and that while “[a]ll complaints have been investigated and will continue to be monitored,” many of the allegations Plaintiff had made in these complaints “could not be validated.” (Id.) On December 7, 2006, Plaintiff was issued a first written advisory for failure to comply with Sky Chefs’ attendance policy, based on several instances of tardiness and an early departure. (See Defendants’ Motion, Ex. I.) In this advisory, Plaintiff was cautioned that “[a]ny future infractions may lead to further disciplinary action u[p] to an[d] including termination.” (Id.) Written advisories also were issued (i) on December 22, 2006 for a security violation, (Defendants’ Motion, Ex. J); (ii) in March of 2007 for personal conduct and for lack of adherence to company standards, with Plaintiff being suspended pending an investigation based upon “witness statements that d[id] not support” allegations she had made against a supervisor, (Defendants’ Motion, Exs. K, M); (iii) again in March of 2007 for continued unsafe behavior in the workplace that had resulted in safety incidents and injuries, (Defendants’ Motion, Ex. L); (iv) on April 17, 2007 for tardiness, (Defendants’ Motion, Ex. N); and (v) in May of 2007 for personal conduct, based on a verbal confrontation with a female co-worker that “continued even after you were separated and sent back to work,” (Defendants’ Motion, Ex. O). In the last of these disciplinary notices, Plaintiff was expressly informed that she had been issued “a repeat final advisory,” and she was again warned that “[f]urther incidents will result in discipline up to and including termination.” (Id.) On November 11, 2007, Plaintiff was involved in an incident that resulted in a final disciplinary notice and her termination. According to Plaintiff, a co-worker, Defendant Dexter Thomas, was using profanity with a lead worker, Ahmed Babuka, and also directed some of this language toward Plaintiff, purportedly calling Plaintiff a “black b*tch” and threatening to “f*ck [her] up.” (Plaintiffs Dep. at 227.) When Plaintiff complained to Babuka, he told Plaintiff not to worry about it,

continued unsafe behavior in the workplace that had resulted in safety incidents and injuries, (Defendants’ Motion, Ex. L); (iv) on April 17, 2007 for tardiness, (Defendants’ Motion, Ex. N); and (v) in May of 2007 for personal conduct, based on a verbal confrontation with a female co-worker that “continued even after you were separated and sent back to work,” (Defendants’ Motion, Ex. O). In the last of these disciplinary notices, Plaintiff was expressly informed that she had been issued “a repeat final advisory,” and she was again warned that “[f]urther incidents will result in discipline up to and including termination.” (Id.) On November 11, 2007, Plaintiff was involved in an incident that resulted in a final disciplinary notice and her termination. According to Plaintiff, a co-worker, Defendant Dexter Thomas, was using profanity with a lead worker, Ahmed Babuka, and also directed some of this language toward Plaintiff, purportedly calling Plaintiff a “black b*tch” and threatening to “f*ck [her] up.” (Plaintiffs Dep. at 227.) When Plaintiff complained to Babuka, he told Plaintiff not to worry about it, and sent Thomas to work at a different location. (See id. at 227-28.) Plaintiff then complained to a supervisor, Dorothy Gonzales, who asked Babuka about this incident and was told that it was “no big deal.” (Id. at 228.) Director of Operations Toni-no Palladinelli subsequently looked into this incident, and was told by Babuka (i) that he had not heard Thomas use profanity, and (ii) that Plaintiff approached him after the incident and said, “What kind of man are you?” and “How are you supposed] to be the lead?” (Defendants’ Motion, Ex. Q.) Following this incident, Plaintiff was issued a final written advisory on November 30, 2007 for personal conduct and ability to work with others, and she was informed that her employment had been terminated. (See Defendants’ Motion, Ex. R.) This advisory stated in part: On more than one occasion you have been counseled on personal conduct. Despite multiple conversations in which expectations have been discussed you continue to: Leave your workstation, often to pursue issues that have been or are already being addressed through the

and sent Thomas to work at a different location. (See id. at 227-28.) Plaintiff then complained to a supervisor, Dorothy Gonzales, who asked Babuka about this incident and was told that it was “no big deal.” (Id. at 228.) Director of Operations Toni-no Palladinelli subsequently looked into this incident, and was told by Babuka (i) that he had not heard Thomas use profanity, and (ii) that Plaintiff approached him after the incident and said, “What kind of man are you?” and “How are you supposed] to be the lead?” (Defendants’ Motion, Ex. Q.) Following this incident, Plaintiff was issued a final written advisory on November 30, 2007 for personal conduct and ability to work with others, and she was informed that her employment had been terminated. (See Defendants’ Motion, Ex. R.) This advisory stated in part: On more than one occasion you have been counseled on personal conduct. Despite multiple conversations in which expectations have been discussed you continue to: Leave your workstation, often to pursue issues that have been or are already being addressed through the internal complaint, and or hotline process. In doing so you are violating the confidentiality surrounding issues that are being investigated, as well as your signed confidentiality agreement. In August 2006 you were provided a Code of Conduct during a counseling session. Since that time you continue to violate the code of conduct repeatedly leaving your workstations for nonemergency situations and to complain about the work performed by other employees.... Additionally you have made unsubstantiated accusations against many of your peers. (For example on 11/12/2007 you complained that an employee used profanity toward a lead. When questioned neither the lead nor the employee sup ported your accusations. As a result you yelled at the lead and were disrespectful in front of your co-workers.) Additionally you do not get along with the employees and many have come forward with complaints of feeling singled out and harassed by you. You have been rude, and insolent toward members of management, lead employees and your peers. These ongoing behavior issues violate both the Code of Conduct and the [Master National

internal complaint, and or hotline process. In doing so you are violating the confidentiality surrounding issues that are being investigated, as well as your signed confidentiality agreement. In August 2006 you were provided a Code of Conduct during a counseling session. Since that time you continue to violate the code of conduct repeatedly leaving your workstations for nonemergency situations and to complain about the work performed by other employees.... Additionally you have made unsubstantiated accusations against many of your peers. (For example on 11/12/2007 you complained that an employee used profanity toward a lead. When questioned neither the lead nor the employee sup ported your accusations. As a result you yelled at the lead and were disrespectful in front of your co-workers.) Additionally you do not get along with the employees and many have come forward with complaints of feeling singled out and harassed by you. You have been rude, and insolent toward members of management, lead employees and your peers. These ongoing behavior issues violate both the Code of Conduct and the [Master National Agreement], You are being terminated effective immediately. (Id.) Plaintiff filed a grievance through her union challenging her discharge, but the grievance was denied. She then commenced this suit in January of 2009, asserting a laundry list of claims of discrimination, harassment, and retaliation against her former employer, Sky Chefs, and ten of her former supervisors and co-workers. Sky Chef and four of these individual Defendants now seek summary judgment in their favor on each of these claims. III. ANALYSIS A. The Standards Governing Defendants’ Motion Through the present motion, Defendant Sky Chefs and four of the individual Defendants- — Erie Coleman, Justin Lathem, Jose Venegas, and Karen Damerow — seek summary judgment in their favor on each of Plaintiffs seventeen claims. Under the pertinent Federal Rule, summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). As the Supreme Court has explained, “the plain language of

Agreement], You are being terminated effective immediately. (Id.) Plaintiff filed a grievance through her union challenging her discharge, but the grievance was denied. She then commenced this suit in January of 2009, asserting a laundry list of claims of discrimination, harassment, and retaliation against her former employer, Sky Chefs, and ten of her former supervisors and co-workers. Sky Chef and four of these individual Defendants now seek summary judgment in their favor on each of these claims. III. ANALYSIS A. The Standards Governing Defendants’ Motion Through the present motion, Defendant Sky Chefs and four of the individual Defendants- — Erie Coleman, Justin Lathem, Jose Venegas, and Karen Damerow — seek summary judgment in their favor on each of Plaintiffs seventeen claims. Under the pertinent Federal Rule, summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). As the Supreme Court has explained, “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir.2006). Yet, the nonmoving party “may not rely merely on allegations or denials in its own pleading,” but “must — by affidavits or as otherwise provided in [Rule 56] — set out specific facts showing a genuine issue for trial.” Fed. R.Civ.P. 56(e)(2). Moreover, any supporting or opposing affidavits “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.”

Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir.2006). Yet, the nonmoving party “may not rely merely on allegations or denials in its own pleading,” but “must — by affidavits or as otherwise provided in [Rule 56] — set out specific facts showing a genuine issue for trial.” Fed. R.Civ.P. 56(e)(2). Moreover, any supporting or opposing affidavits “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(e)(1). Finally, “the mere existence of a scintilla of evidence that supports the non-moving party’s claims is insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and citation omitted). B. Plaintiff Has Failed to Establish a Prima Facie Case of Discrimination Based on Her Race, Gender, or Religion. In six of the seventeen counts of her complaint, Plaintiff has asserted claims of race, gender, and religious discrimination under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2101 et seq. Through the present motion, Defendants seek summary judgment in their favor on each of these claims, arguing that Plaintiff has failed to establish a prima facie case of any of these forms of discrimination. Moreover, even assuming Plaintiff had established a prima facie case, Defendants contend that Plaintiffs employer, Sky Chefs, has articulated a legitimate, non-discriminatory reason for Plaintiffs discharge, and that Plaintiff has failed to produce any evidence suggesting that this stated

Fed.R.Civ.P. 56(e)(1). Finally, “the mere existence of a scintilla of evidence that supports the non-moving party’s claims is insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and citation omitted). B. Plaintiff Has Failed to Establish a Prima Facie Case of Discrimination Based on Her Race, Gender, or Religion. In six of the seventeen counts of her complaint, Plaintiff has asserted claims of race, gender, and religious discrimination under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2101 et seq. Through the present motion, Defendants seek summary judgment in their favor on each of these claims, arguing that Plaintiff has failed to establish a prima facie case of any of these forms of discrimination. Moreover, even assuming Plaintiff had established a prima facie case, Defendants contend that Plaintiffs employer, Sky Chefs, has articulated a legitimate, non-discriminatory reason for Plaintiffs discharge, and that Plaintiff has failed to produce any evidence suggesting that this stated reason was a pretext for unlawful discrimination. The Court agrees. In this case, Plaintiff does not claim to have produced any direct evidence of discrimination in the decision to terminate her employment, but instead expressly acknowledges that her claims of disparate treatment are properly analyzed under the familiar burden-shifting approach adopted by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). (See Plaintiff’s Response Br. at 11.) Under the first step of this tripartite approach, Plaintiff must establish a prima facie case consisting of four elements: (i) that she was a member of a protected class; (ii) that she was qualified for her position; (iii) that she suffered an adverse employment action; and (iv) that she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside the protected class. See Johnson v. University of Cincinnati, 215 F.3d 561, 572-73 (6th Cir.2000); Town v. Michigan Bell Telephone Co., 455 Mich. 688, 568 N.W.2d 64, 68

reason was a pretext for unlawful discrimination. The Court agrees. In this case, Plaintiff does not claim to have produced any direct evidence of discrimination in the decision to terminate her employment, but instead expressly acknowledges that her claims of disparate treatment are properly analyzed under the familiar burden-shifting approach adopted by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). (See Plaintiff’s Response Br. at 11.) Under the first step of this tripartite approach, Plaintiff must establish a prima facie case consisting of four elements: (i) that she was a member of a protected class; (ii) that she was qualified for her position; (iii) that she suffered an adverse employment action; and (iv) that she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside the protected class. See Johnson v. University of Cincinnati, 215 F.3d 561, 572-73 (6th Cir.2000); Town v. Michigan Bell Telephone Co., 455 Mich. 688, 568 N.W.2d 64, 68 (1997). For present purposes, at least, Defendants concede that Plaintiff has established the first three elements of her prima facie case, and they challenge only her showing that she was treated differently from similarly situated individuals outside the protected classes of which she is a member. As the Sixth Circuit has explained, a plaintiff satisfies this element of a prima facie case by “demonstrating] that he or she is similarly-situated to the non-protected employee in all relevant respects,” yet was treated differently. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.1998); see also Town, 568 N.W.2d at 70 (applying the same standard under Michigan law). “[T]o be deemed ‘similarly-situated’ in the disciplinary context, the individuals with whom the plaintiff seeks to compare his/ her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Ercegovich, 154 F.3d at 352 (internal quotation

(1997). For present purposes, at least, Defendants concede that Plaintiff has established the first three elements of her prima facie case, and they challenge only her showing that she was treated differently from similarly situated individuals outside the protected classes of which she is a member. As the Sixth Circuit has explained, a plaintiff satisfies this element of a prima facie case by “demonstrating] that he or she is similarly-situated to the non-protected employee in all relevant respects,” yet was treated differently. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.1998); see also Town, 568 N.W.2d at 70 (applying the same standard under Michigan law). “[T]o be deemed ‘similarly-situated’ in the disciplinary context, the individuals with whom the plaintiff seeks to compare his/ her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Ercegovich, 154 F.3d at 352 (internal quotation marks and citation omitted). Plaintiffs effort to establish this prong of a prima facie case rests almost entirely on conelusory assertions that are unsupported by citation to the record. Regarding her claim of gender discrimina tion, she points exclusively to the different treatment purportedly given to her and coworker Dexter Thomas in the incident that led to her termination. This example of different treatment of similarly situated employees, however, is flawed on several grounds. First, Plaintiffs claim that no action was taken against Thomas evidently rests solely on her own deposition testimony that “nothing was done,” (see Plaintiffs Dep. at 229-30), but there is no indication in the record that Plaintiff has personal knowledge about any disciplinary measures that might have been imposed on Thomas as a result of this incident. In addition, while Plaintiff invites the Court to assume that she and Thomas were similarly situated in the relevant respects— e.g., that they reported to the same supervisor and were subject to the same standards of conduct — no effort has been made to identify

marks and citation omitted). Plaintiffs effort to establish this prong of a prima facie case rests almost entirely on conelusory assertions that are unsupported by citation to the record. Regarding her claim of gender discrimina tion, she points exclusively to the different treatment purportedly given to her and coworker Dexter Thomas in the incident that led to her termination. This example of different treatment of similarly situated employees, however, is flawed on several grounds. First, Plaintiffs claim that no action was taken against Thomas evidently rests solely on her own deposition testimony that “nothing was done,” (see Plaintiffs Dep. at 229-30), but there is no indication in the record that Plaintiff has personal knowledge about any disciplinary measures that might have been imposed on Thomas as a result of this incident. In addition, while Plaintiff invites the Court to assume that she and Thomas were similarly situated in the relevant respects— e.g., that they reported to the same supervisor and were subject to the same standards of conduct — no effort has been made to identify evidentiary support for this proposition. Indeed, in one respect, it seems virtually certain that Plaintiff and Thomas were not similarly situated. As discussed at length in the Court’s recitation of the pertinent facts, Plaintiffs disciplinary record with Sky Chefs featured an extensive series of verbal and written advisories — with several of the latter designated as “final” written advisories — and she was expressly warned in writing on multiple occasions that further infractions could lead to her dismissal. (See, e.g., Defendants’ Motion, Exs. I, L, O.) Nothing in the record suggests that Thomas had a comparable disciplinary record. Even assuming, then, that Plaintiff and Thomas engaged in precisely the same conduct in the November 11, 2007 incident at issue, the disparities in the disciplinary records of these two individuals defeats any inference of gender discrimination that might otherwise arise from Sky Chefs’ decision to terminate Plaintiff but not Thomas. See Russell v. University of Toledo, 537 F.3d 596, 607-08 (6th Cir.2008) (finding that the plaintiff in that case was not similarly situated to coworkers who lacked

evidentiary support for this proposition. Indeed, in one respect, it seems virtually certain that Plaintiff and Thomas were not similarly situated. As discussed at length in the Court’s recitation of the pertinent facts, Plaintiffs disciplinary record with Sky Chefs featured an extensive series of verbal and written advisories — with several of the latter designated as “final” written advisories — and she was expressly warned in writing on multiple occasions that further infractions could lead to her dismissal. (See, e.g., Defendants’ Motion, Exs. I, L, O.) Nothing in the record suggests that Thomas had a comparable disciplinary record. Even assuming, then, that Plaintiff and Thomas engaged in precisely the same conduct in the November 11, 2007 incident at issue, the disparities in the disciplinary records of these two individuals defeats any inference of gender discrimination that might otherwise arise from Sky Chefs’ decision to terminate Plaintiff but not Thomas. See Russell v. University of Toledo, 537 F.3d 596, 607-08 (6th Cir.2008) (finding that the plaintiff in that case was not similarly situated to coworkers who lacked prior disciplinary records). Because Thomas is the only coworker identified by Plaintiff as a similarly situated male employee who was treated differently, and because she has failed to show that she and Thomas were similarly situated as this term is defined in the case law, Plaintiff cannot establish the fourth and final element of a prima facie case of gender discrimination. Plaintiffs efforts to establish this element of a prima facie case of race or religious discrimination warrant little discussion. With regard to Plaintiffs claim of race discrimination, the sum total of her argument — again, without citation to the record — is that Sky Chefs’ human resources manager, Defendant Damerow, “admitted that she was aware of Defendant Lathem’s (who is Caucasian) use of the term ‘nigga’ and that he admitted he sang a lewd song about female anatomy, but he was not disciplined for any violation of policy.” (Plaintiffs Response Br. at 12.) First, Plaintiffs assertion about Damerow’s awareness of co-worker Lathem’s use of the “N” word is utterly unsupported by citation to the record,

prior disciplinary records). Because Thomas is the only coworker identified by Plaintiff as a similarly situated male employee who was treated differently, and because she has failed to show that she and Thomas were similarly situated as this term is defined in the case law, Plaintiff cannot establish the fourth and final element of a prima facie case of gender discrimination. Plaintiffs efforts to establish this element of a prima facie case of race or religious discrimination warrant little discussion. With regard to Plaintiffs claim of race discrimination, the sum total of her argument — again, without citation to the record — is that Sky Chefs’ human resources manager, Defendant Damerow, “admitted that she was aware of Defendant Lathem’s (who is Caucasian) use of the term ‘nigga’ and that he admitted he sang a lewd song about female anatomy, but he was not disciplined for any violation of policy.” (Plaintiffs Response Br. at 12.) First, Plaintiffs assertion about Damerow’s awareness of co-worker Lathem’s use of the “N” word is utterly unsupported by citation to the record, and the Court declines Plaintiffs invitation to search for evidentiary support for this assertion. Next, with regard to the lewd song, Defendants note the evidence in the record that Lathem was, in fact, verbally instructed to stop singing this song. (See Damerow Dep. at 59-60; Lathem Dep. at 19.) Finally, and most importantly, Plaintiff fails to suggest how any purportedly different treatment of a white co-worker for offensive speech at some unspecified point in the past might give rise to an inference that Plaintiffs November 2007 termination — which, after all, is the sole adverse action giving rise to Plaintiffs claims of discrimination — was motivated by racial animus. Accordingly, Plaintiff has not established a prima facie case of race discrimination. Turning next to Plaintiffs claim of discrimination on account of her religion, her effort to establish a privia facie case rests solely upon the terse — and, once again, unsupported — assertions that she was “treated differently than similarly situated non-religious or non-Christian employees” (who Plaintiff does not identify), and that unspecified “Muslim employees were

and the Court declines Plaintiffs invitation to search for evidentiary support for this assertion. Next, with regard to the lewd song, Defendants note the evidence in the record that Lathem was, in fact, verbally instructed to stop singing this song. (See Damerow Dep. at 59-60; Lathem Dep. at 19.) Finally, and most importantly, Plaintiff fails to suggest how any purportedly different treatment of a white co-worker for offensive speech at some unspecified point in the past might give rise to an inference that Plaintiffs November 2007 termination — which, after all, is the sole adverse action giving rise to Plaintiffs claims of discrimination — was motivated by racial animus. Accordingly, Plaintiff has not established a prima facie case of race discrimination. Turning next to Plaintiffs claim of discrimination on account of her religion, her effort to establish a privia facie case rests solely upon the terse — and, once again, unsupported — assertions that she was “treated differently than similarly situated non-religious or non-Christian employees” (who Plaintiff does not identify), and that unspecified “Muslim employees were allowed [unspecified] special treatment to observe their religion.” (Plaintiffs Response Br. at 12.) These contentions, in addition to being utterly bereft of factual support, are so woefully inadequate to raise an inference of discrimination in Plaintiffs discharge as to constitute an abandonment of Plaintiffs claim of discrimination on account of her religion. Finally, even assuming that Plaintiff had established a prima facie case of discriminatory discharge on account of her gender, race, or religion, Defendant Sky Chefs has articulated a legitimate, nondiscriminatory reason for terminating Plaintiffs employment — namely, that despite several prior final written advisories, she violated the Sky Chefs code of conduct in the November 12, 2007 incident by making unsubstantiated accusations against a eo-worker and yelling at and being disrespectful to a lead worker. (See Defendants’ Motion, Ex. R.) Thus, under the third step of the McDonnell Douglas burden-shifting approach, Plaintiff must produce evidence that the reason identified by Defendants is a pretext for unlawful discrimination. See Russell, 537 F.3d at 604; Towi, 568 N.W.2d at 68. Plaintiff has manifestly failed to satisfy

allowed [unspecified] special treatment to observe their religion.” (Plaintiffs Response Br. at 12.) These contentions, in addition to being utterly bereft of factual support, are so woefully inadequate to raise an inference of discrimination in Plaintiffs discharge as to constitute an abandonment of Plaintiffs claim of discrimination on account of her religion. Finally, even assuming that Plaintiff had established a prima facie case of discriminatory discharge on account of her gender, race, or religion, Defendant Sky Chefs has articulated a legitimate, nondiscriminatory reason for terminating Plaintiffs employment — namely, that despite several prior final written advisories, she violated the Sky Chefs code of conduct in the November 12, 2007 incident by making unsubstantiated accusations against a eo-worker and yelling at and being disrespectful to a lead worker. (See Defendants’ Motion, Ex. R.) Thus, under the third step of the McDonnell Douglas burden-shifting approach, Plaintiff must produce evidence that the reason identified by Defendants is a pretext for unlawful discrimination. See Russell, 537 F.3d at 604; Towi, 568 N.W.2d at 68. Plaintiff has manifestly failed to satisfy this burden, as she does not address the question of pretext whatsoever in her response to Defendants’ motion. In any event, while Plaintiff might dispute the determination by Sky Chefs’ management, following an investigation, (see Defendants’ Motion, Ex. Q), that she engaged in insubordinate conduct toward lead worker Ahmed Babuka and that, contrary to her accusation, co-worker Dexter Thomas had not sworn at this lead worker, Sky Chefs was entitled to act upon the results of this investigation and discharge Plaintiff so long as it took steps to be “reasonably informed” before making this decision, and so long as this decision rested upon an “honest belief’ that Plaintiff had engaged in the misconduct cited in her final disciplinary notice. See Harrison, 612 F.Supp.2d at 864-65 (internal quotation marks and citations omitted). Plaintiff has not suggested any basis for challenging the decisionmaking or investigative process leading up to her termination, nor has she endeavored to explain why Sky Chefs’ management should not have credited the account given by lead worker Babuka that he did not hear co-worker

this burden, as she does not address the question of pretext whatsoever in her response to Defendants’ motion. In any event, while Plaintiff might dispute the determination by Sky Chefs’ management, following an investigation, (see Defendants’ Motion, Ex. Q), that she engaged in insubordinate conduct toward lead worker Ahmed Babuka and that, contrary to her accusation, co-worker Dexter Thomas had not sworn at this lead worker, Sky Chefs was entitled to act upon the results of this investigation and discharge Plaintiff so long as it took steps to be “reasonably informed” before making this decision, and so long as this decision rested upon an “honest belief’ that Plaintiff had engaged in the misconduct cited in her final disciplinary notice. See Harrison, 612 F.Supp.2d at 864-65 (internal quotation marks and citations omitted). Plaintiff has not suggested any basis for challenging the decisionmaking or investigative process leading up to her termination, nor has she endeavored to explain why Sky Chefs’ management should not have credited the account given by lead worker Babuka that he did not hear co-worker Thomas use profanity and that Plaintiff had questioned his authority and leadership. (See Defendants’ Motion, Ex. Q.) In addition, and as discussed earlier, even if Plaintiff and co-worker Thomas had en gaged in precisely the same misconduct, Plaintiffs prior disciplinary record provided ample reason for Sky Chefs to determine that her discharge was warranted, and any purportedly disparate treatment of Plaintiff and Thomas would not support the inference that Sky Chefs’ stated basis for terminating Plaintiffs employment was a pretext for discrimination. Accordingly, for this and the other reasons stated earlier, Defendants are entitled to summary judgment in their favor on Plaintiffs federal and state-law claims of discrimination. C. Plaintiff Has Failed to Establish a Prima Facie Case of Harassment Based on Her Race, Gender, or Religion. Next, in six more counts of her complaint, Plaintiff has asserted claims under Title VII and Michigan’s ELCRA of hostile work environment harassment based on her sex, race, and religion. In the present motion, Defendants contend that Plaintiff has failed to establish a prima facie case of any of these

Thomas use profanity and that Plaintiff had questioned his authority and leadership. (See Defendants’ Motion, Ex. Q.) In addition, and as discussed earlier, even if Plaintiff and co-worker Thomas had en gaged in precisely the same misconduct, Plaintiffs prior disciplinary record provided ample reason for Sky Chefs to determine that her discharge was warranted, and any purportedly disparate treatment of Plaintiff and Thomas would not support the inference that Sky Chefs’ stated basis for terminating Plaintiffs employment was a pretext for discrimination. Accordingly, for this and the other reasons stated earlier, Defendants are entitled to summary judgment in their favor on Plaintiffs federal and state-law claims of discrimination. C. Plaintiff Has Failed to Establish a Prima Facie Case of Harassment Based on Her Race, Gender, or Religion. Next, in six more counts of her complaint, Plaintiff has asserted claims under Title VII and Michigan’s ELCRA of hostile work environment harassment based on her sex, race, and religion. In the present motion, Defendants contend that Plaintiff has failed to establish a prima facie case of any of these forms of harassment. The Court agrees. As a threshold matter, before turning to the merits of Plaintiffs claims of harassment, the Court observes that most or all of her claims brought under Title VII appear to be time-barred. “[T]he courts have recognized that the filing of a timely charge with the EEOC is a prerequisite to a Title VII action.” Marquis v. Tecumseh Products Co., 206 F.R.D. 132, 169 (E.D.Mich.2002). Moreover, “[t]o be deemed timely under Title VII, an EEOC charge must be filed ‘within three hundred days after the alleged unlawful employment practice occurred.’ ” Marquis, 206 F.R.D. at 169 (quoting 42 U.S.C. § 2000e-5(e)(1)); see also Boykin v. Michigan Department of Corrections, No. 99-1345, 2000 WL 491512, at *1 (6th Cir. Apr. 18, 2000). In this case, Plaintiff evidently filed her first EEOC charge on October 31, 2007, (see Plaintiffs Response, Ex. F), so it follows that she presumptively cannot complain here of any employment practices that occurred prior to January 4, 2007. While Plaintiffs deposition testimony is not altogether clear as to when

forms of harassment. The Court agrees. As a threshold matter, before turning to the merits of Plaintiffs claims of harassment, the Court observes that most or all of her claims brought under Title VII appear to be time-barred. “[T]he courts have recognized that the filing of a timely charge with the EEOC is a prerequisite to a Title VII action.” Marquis v. Tecumseh Products Co., 206 F.R.D. 132, 169 (E.D.Mich.2002). Moreover, “[t]o be deemed timely under Title VII, an EEOC charge must be filed ‘within three hundred days after the alleged unlawful employment practice occurred.’ ” Marquis, 206 F.R.D. at 169 (quoting 42 U.S.C. § 2000e-5(e)(1)); see also Boykin v. Michigan Department of Corrections, No. 99-1345, 2000 WL 491512, at *1 (6th Cir. Apr. 18, 2000). In this case, Plaintiff evidently filed her first EEOC charge on October 31, 2007, (see Plaintiffs Response, Ex. F), so it follows that she presumptively cannot complain here of any employment practices that occurred prior to January 4, 2007. While Plaintiffs deposition testimony is not altogether clear as to when she was subjected to the various forms of harassment giving rise to her claims, every date that she specified in this testimony extended, at the latest, to the end of 2006. (See, e.g., Plaintiffs Dep. at 108, 121-23, 131, 144-45, 165, 180-81.) To be sure, a claim may encompass incidents outside of this 300-day limit, but only upon a “showing that the current violation, falling within the limitations period, is indicative of a pattern of similar discriminatory acts continuing from the period prior to the limitations period.” Marquis, 206 F.R.D. at 169 (internal quotation marks and citations omitted); see also Boykin, 2000 WL 491512, at *2. This “continuing violation doctrine,” however, is “intended to reach the situation where, by virtue of the nature of the alleged discrimination, the worker did not — and could not — become aware of the need to take legal action to vindicate her rights until a period of time had elapsed.” Marquis, 206 F.R.D. at 169 (internal quotation marks and citations omitted). In this case, Plaintiff has testified that she lodged

she was subjected to the various forms of harassment giving rise to her claims, every date that she specified in this testimony extended, at the latest, to the end of 2006. (See, e.g., Plaintiffs Dep. at 108, 121-23, 131, 144-45, 165, 180-81.) To be sure, a claim may encompass incidents outside of this 300-day limit, but only upon a “showing that the current violation, falling within the limitations period, is indicative of a pattern of similar discriminatory acts continuing from the period prior to the limitations period.” Marquis, 206 F.R.D. at 169 (internal quotation marks and citations omitted); see also Boykin, 2000 WL 491512, at *2. This “continuing violation doctrine,” however, is “intended to reach the situation where, by virtue of the nature of the alleged discrimination, the worker did not — and could not — become aware of the need to take legal action to vindicate her rights until a period of time had elapsed.” Marquis, 206 F.R.D. at 169 (internal quotation marks and citations omitted). In this case, Plaintiff has testified that she lodged both verbal and written complaints about the harassment she was experiencing. (See, e.g., Plaintiffs Dep. at 96-100,102-03,108- 10, 122-23, 131, 135-36, 139, 143-45, 165-66, 175-76, 178-79, 182, 190.) The courts have held that such contemporaneous complaints evidence an employee’s “awareness of and duty to assert his or her rights,” thereby defeating the employee’s appeal to the continuing violation doctrine. Boykin, 2000 WL 491512, at *2 (internal quotation marks and citations omitted); see also Marquis, 206 F.R.D. at 170. Accordingly, it appears that Plaintiffs Title VII claims of harassment are largely (if not entirely) time-barred. Nonetheless, to the extent that they are not, and to the extent that Plaintiff is pursuing her claims of harassment under Michigan’s ELCRA, Plaintiff must first establish the elements of a prima facie case. To establish a prima facie case of hostile work environment harassment under Title VII, Plaintiff must show (i) that she is a member of a protected class, (ii) that she was subjected to unwelcome harassment of a sexual, racial, or religious nature, (iii) that this harassment was based

both verbal and written complaints about the harassment she was experiencing. (See, e.g., Plaintiffs Dep. at 96-100,102-03,108- 10, 122-23, 131, 135-36, 139, 143-45, 165-66, 175-76, 178-79, 182, 190.) The courts have held that such contemporaneous complaints evidence an employee’s “awareness of and duty to assert his or her rights,” thereby defeating the employee’s appeal to the continuing violation doctrine. Boykin, 2000 WL 491512, at *2 (internal quotation marks and citations omitted); see also Marquis, 206 F.R.D. at 170. Accordingly, it appears that Plaintiffs Title VII claims of harassment are largely (if not entirely) time-barred. Nonetheless, to the extent that they are not, and to the extent that Plaintiff is pursuing her claims of harassment under Michigan’s ELCRA, Plaintiff must first establish the elements of a prima facie case. To establish a prima facie case of hostile work environment harassment under Title VII, Plaintiff must show (i) that she is a member of a protected class, (ii) that she was subjected to unwelcome harassment of a sexual, racial, or religious nature, (iii) that this harassment was based on her protected status, whether her gender, race, or religion, (iv) that the harassment had the effect of unreasonably interfering with her work performance by creating a hostile work environment, and (v) that there is a basis for charging Sky Chefs with liability' for this harassment. See Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 600 (6th Cir.2007); Harrison, 612 F.Supp.2d at 855. The standards under Michigan’s Elliott— Larsen Act are similar, except that an employer may be held liable for the creation of a hostile work environment only if it “failed to take prompt and adequate remedial action after having been reasonably put on notice of the harassment.” Chambers v. Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910, 915-16 (2000). In their present motion, Defendants challenge only the last two elements of this prima facie case. This Court recently described the showing necessary to establish the fourth element of this standard: As the Sixth Circuit has explained, a hostile work environment exists — and, thus, the fourth prong of a prima facie case is established

on her protected status, whether her gender, race, or religion, (iv) that the harassment had the effect of unreasonably interfering with her work performance by creating a hostile work environment, and (v) that there is a basis for charging Sky Chefs with liability' for this harassment. See Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 600 (6th Cir.2007); Harrison, 612 F.Supp.2d at 855. The standards under Michigan’s Elliott— Larsen Act are similar, except that an employer may be held liable for the creation of a hostile work environment only if it “failed to take prompt and adequate remedial action after having been reasonably put on notice of the harassment.” Chambers v. Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910, 915-16 (2000). In their present motion, Defendants challenge only the last two elements of this prima facie case. This Court recently described the showing necessary to establish the fourth element of this standard: As the Sixth Circuit has explained, a hostile work environment exists — and, thus, the fourth prong of a prima facie case is established — only where a plaintiff is subjected to conduct that is “sufficiently severe or pervasive to alter the conditions of [his] employment.” Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 (6th Cir.1998) (internal quotation marks and citations omitted). The conduct in question “must be judged by both an objective and a subjective standard” — that is, “[t]he conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.” Abeita, 159 F.3d at 251 (internal quotation marks and citations omitted). Among the factors to be considered in determining the existence of a hostile work environment are “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Clark [v. United Parcel Service, 400 F.3d 341, 351 (6th Cir.2005) ] (internal quotation marks and citation omitted). “The harassment should be ongoing, rather than a set of isolated or

— only where a plaintiff is subjected to conduct that is “sufficiently severe or pervasive to alter the conditions of [his] employment.” Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 (6th Cir.1998) (internal quotation marks and citations omitted). The conduct in question “must be judged by both an objective and a subjective standard” — that is, “[t]he conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.” Abeita, 159 F.3d at 251 (internal quotation marks and citations omitted). Among the factors to be considered in determining the existence of a hostile work environment are “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Clark [v. United Parcel Service, 400 F.3d 341, 351 (6th Cir.2005) ] (internal quotation marks and citation omitted). “The harassment should be ongoing, rather than a set of isolated or sporadic incidents.” Clark, 400 F.3d at 351. Harrison, 612 F.Supp.2d at 855-56. Plaintiff and her counsel have made very little effort to address this element of a prima facie case or to identify supporting evidence in the record. Turning first to her claim of sexual harassment, Plaintiff states (without citation to the record or supporting details) that she “was subjected to near-constant harassment from multiple supervisors and co-workers, who would physically touch or rub up against Plaintiff and make obscene remarks about her body and various sexual acts they would like to engage in with her.” (Plaintiffs Response Br. at 14.) She further asserts that her showing of a hostile work environment is bolstered by her testimony as to her “awareness of other female employees being harassed in the same manner that she was.” (Id.) Assuming, for present purposes, that these vague and unsupported assertions in Plaintiffs response brief could satisfy the objective prong of the standard for establishing a hostile work environment, Plaintiff has not even attempted to identify any evidence in the record that she subjectively

sporadic incidents.” Clark, 400 F.3d at 351. Harrison, 612 F.Supp.2d at 855-56. Plaintiff and her counsel have made very little effort to address this element of a prima facie case or to identify supporting evidence in the record. Turning first to her claim of sexual harassment, Plaintiff states (without citation to the record or supporting details) that she “was subjected to near-constant harassment from multiple supervisors and co-workers, who would physically touch or rub up against Plaintiff and make obscene remarks about her body and various sexual acts they would like to engage in with her.” (Plaintiffs Response Br. at 14.) She further asserts that her showing of a hostile work environment is bolstered by her testimony as to her “awareness of other female employees being harassed in the same manner that she was.” (Id.) Assuming, for present purposes, that these vague and unsupported assertions in Plaintiffs response brief could satisfy the objective prong of the standard for establishing a hostile work environment, Plaintiff has not even attempted to identify any evidence in the record that she subjectively regarded the conduct of her co-workers and supervisors as abusive. To the contrary, she testified at her deposition that she regarded the name-calling in the workplace as “lesser offenses to me,” a “lighter thing,” and “like high school junk to me,” and she contrasted this with workplace incidents that rendered her “not ... able to do my production.” (Plaintiffs Dep. at 176-77.) More generally, Plaintiff has not pointed to any evidence in the record, whether in her deposition testimony or elsewhere, that she perceived the harassing conduct of her co-workers and supervisors as interfering with her work performance, altering the conditions of her employment, or giving rise to a hostile or abusive work environment. Under this record, while Plaintiff might well have viewed this conduct as unwelcome, it cannot be said that she “subjectively regarded it as so severe or pervasive as to create an abusive or hostile work environment.” Harrison, 612 F.Supp.2d at 856. This same analysis applies as well to (and defeats) Plaintiffs claims of harassment based on her race and religion, where Plaintiff

regarded the conduct of her co-workers and supervisors as abusive. To the contrary, she testified at her deposition that she regarded the name-calling in the workplace as “lesser offenses to me,” a “lighter thing,” and “like high school junk to me,” and she contrasted this with workplace incidents that rendered her “not ... able to do my production.” (Plaintiffs Dep. at 176-77.) More generally, Plaintiff has not pointed to any evidence in the record, whether in her deposition testimony or elsewhere, that she perceived the harassing conduct of her co-workers and supervisors as interfering with her work performance, altering the conditions of her employment, or giving rise to a hostile or abusive work environment. Under this record, while Plaintiff might well have viewed this conduct as unwelcome, it cannot be said that she “subjectively regarded it as so severe or pervasive as to create an abusive or hostile work environment.” Harrison, 612 F.Supp.2d at 856. This same analysis applies as well to (and defeats) Plaintiffs claims of harassment based on her race and religion, where Plaintiff again has made essentially no effort to establish the subjective prong of the “hostile work environment” standard with respect to these claims. Regarding her claim of race-based harassment, Plaintiff offers only the conclusory assertion that “the harassment was severe and pervasive as it occurred on a daily basis from many different employees,” and she points broadly — and, once again, without citation to the record — to her testimony that “instead of calling her by her name, most of the time she was called ‘black bitch.’ ” (Plaintiffs Response Br. at 15.) As for her claim of religion-based harassment, Plaintiff does not offer even so much as an unsupported assertion that the remarks and conduct about which she complains were sufficiently severe and pervasive to create a hostile work environment. (See id. at 16.) Yet, beyond her counsel’s generalized characterizations of the conduct engaged in by Plaintiffs coworkers and supervisors, and counsel’s ipse dixit labeling of this conduct as “severe and pervasive,” Plaintiff has made no attempt to identify any specific evidence in the record

again has made essentially no effort to establish the subjective prong of the “hostile work environment” standard with respect to these claims. Regarding her claim of race-based harassment, Plaintiff offers only the conclusory assertion that “the harassment was severe and pervasive as it occurred on a daily basis from many different employees,” and she points broadly — and, once again, without citation to the record — to her testimony that “instead of calling her by her name, most of the time she was called ‘black bitch.’ ” (Plaintiffs Response Br. at 15.) As for her claim of religion-based harassment, Plaintiff does not offer even so much as an unsupported assertion that the remarks and conduct about which she complains were sufficiently severe and pervasive to create a hostile work environment. (See id. at 16.) Yet, beyond her counsel’s generalized characterizations of the conduct engaged in by Plaintiffs coworkers and supervisors, and counsel’s ipse dixit labeling of this conduct as “severe and pervasive,” Plaintiff has made no attempt to identify any specific evidence in the record indicating that she subjectively regarded the conduct and remarks of her co-workers as so severe or pervasive as to give rise to an abusive or hostile work environment. It follows that she has failed to establish a prima facie case of hostile work environment harassment based on her gender, race, or religion, whether under Title VII or the ELCRA. Before turning to the remaining claims asserted in Plaintiffs complaint, one point bears emphasis. In determining whether Defendants are entitled to summary judgment in their favor on Plaintiffs claims of hostile work environment harassment, the Court must view the evidence in a light most favorable to Plaintiff, and must, in particular, credit Plaintiffs deposition testimony regarding the many inappropriate comments directed at her and the inappropriate conduct engaged in by her co-workers and supervisors. In resolving Defendants’ motion, the Court has not been called upon to decide whether the comments and conduct identified in this deposition testimony would satisfy the objective prong of the “hostile work environment” standard — that is, whether this behavior was “severe or

indicating that she subjectively regarded the conduct and remarks of her co-workers as so severe or pervasive as to give rise to an abusive or hostile work environment. It follows that she has failed to establish a prima facie case of hostile work environment harassment based on her gender, race, or religion, whether under Title VII or the ELCRA. Before turning to the remaining claims asserted in Plaintiffs complaint, one point bears emphasis. In determining whether Defendants are entitled to summary judgment in their favor on Plaintiffs claims of hostile work environment harassment, the Court must view the evidence in a light most favorable to Plaintiff, and must, in particular, credit Plaintiffs deposition testimony regarding the many inappropriate comments directed at her and the inappropriate conduct engaged in by her co-workers and supervisors. In resolving Defendants’ motion, the Court has not been called upon to decide whether the comments and conduct identified in this deposition testimony would satisfy the objective prong of the “hostile work environment” standard — that is, whether this behavior was “severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive.” Harrison, 612 F.Supp.2d at 856 (internal quotation marks and citation omitted). Rather, the Court has considered Plaintiffs showing only as to the subjective prong of this standard — that is, whether Plaintiff subjectively regarded her work environment as hostile or abusive. Harrison, 612 F.Supp.2d at 856. Once Defendants advanced this challenge, it was Plaintiffs obligation under Rule 56 to marshal the evidence in the record which, if credited and viewed in her favor, would establish this element of a prima facie case of hostile work environment harassment. As is repeatedly the case throughout Plaintiffs brief in response to Defendants’ motion, Plaintiff and her counsel have sought to satisfy this obligation through terse, conclusory, and question-begging assertions that the harassment in her former workplace was “severe and pervasive,” (see Plaintiffs Response Br. at 14, 15), and through broad and generalized characterizations of the conduct engaged in by her co-workers, with these latter passages in her brief utterly lacking in specific details or

pervasive enough to create an environment that a reasonable person would find hostile or abusive.” Harrison, 612 F.Supp.2d at 856 (internal quotation marks and citation omitted). Rather, the Court has considered Plaintiffs showing only as to the subjective prong of this standard — that is, whether Plaintiff subjectively regarded her work environment as hostile or abusive. Harrison, 612 F.Supp.2d at 856. Once Defendants advanced this challenge, it was Plaintiffs obligation under Rule 56 to marshal the evidence in the record which, if credited and viewed in her favor, would establish this element of a prima facie case of hostile work environment harassment. As is repeatedly the case throughout Plaintiffs brief in response to Defendants’ motion, Plaintiff and her counsel have sought to satisfy this obligation through terse, conclusory, and question-begging assertions that the harassment in her former workplace was “severe and pervasive,” (see Plaintiffs Response Br. at 14, 15), and through broad and generalized characterizations of the conduct engaged in by her co-workers, with these latter passages in her brief utterly lacking in specific details or citation to the record. This approach is manifestly inadequate — particularly, as explained earlier, under Rule 56 as recently amended, but also under the Rule prior to these amendments — to meet the non-moving party’s burden to “set out specific facts showing a genuine issue for trial.” Fed. R.Civ.P. 56(e)(2). Whatever might be said about whether the record in this case could, if properly marshaled, establish each of the elements of a prima facie case of hostile work environment harassment, the Court readily concludes that the effort put forward by Plaintiff and her counsel does not suffice to satisfy the burden placed on the non-moving party under Rule 56. Having so determined, the Court’s inquiry is at an end. There is no place in this inquiry for fashioning arguments or gathering evidence on a party’s behalf. Neither should the Court’s ruling be viewed as any sort of determination on the merits that the workplace conduct identified in Plaintiffs deposition testimony is beyond the reach of federal or state anti-discrimination law. D. Plaintiff Has Failed to Establish