Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

James F. Holderman Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 601 DATE 9/24/2012

CASE

TITLE

Michael Harris vs. Town of Cicero et al.

DOCKET ENTRY TEXT

For the reasons explained in the Statement section of the order, the defendants’ “Motion to Dismiss Pursuant to

Rule 12(b)(6)” [21] is granted in part and denied in part. Counts IV and V of plaintiff Michael Harris’s First

Amended Complaint [10] are dismissed. All other counts will stand. The defendants’ answer to Counts I, II, and

III is due October 8, 2012. Counsel are to confer pursuant to Rule 26(f) and jointly file a Form 52 on or before

October 22, 2012. The case is set for status and entry of a scheduling order at 9:00 AM on October 25, 2012. 

The parties are encouraged to discuss settlement. 

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff Michael Harris is an African-American male who previously served as an employee of the Town

of Cicero (the “Town”) Police Department. (Dkt. No. 10 (“First Am. Compl.”) ¶¶ 6-7.) Harris alleges that on

February 1, 2008, the Police Department brought disciplinary charges against him seeking his termination. (Id.

¶ 14.) Harris elected to have the charges heard by an independent arbitrator under the collective bargaining

agreement between the Town and the Illinois Fraternal Order of Police Labor Council, a union of which Harris

was a member. (Id. ¶ 15.) The arbitrator ruled in Harris’s favor, after which Lori Lelis, the Cicero Superintendent

of Police, filed further disciplinary charges seeking to terminate Harris due to his alleged misconduct in applying

for disability benefits. (Id. ¶¶ 16-17.) Although Harris denied that he committed any misconduct, Larry

Dominick, the President of the Town, suspended Harris without pay pending the outcome of the disciplinary

proceeding. (Id. ¶¶ 18-19.) Thereafter, Harris’s employment was terminated. (Id. ¶ 25.) 

Harris alleges that the defendants are liable for improperly terminating him from his position because of

his race and because of his election to have the disciplinary charges heard by the arbitrator. Specifically, Harris

claims that all defendants are liable for terminating him on the basis of race under 42 U.S.C. § 1983 (Count II)

and 42 U.S.C. § 1981 (Count III), for retaliating against him in violation of his First Amendment rights because

he brought the disciplinary charges before a union arbitrator (Count IV), and for retaliating against him in

violation of the Illinois Public Labor Relations Act (Count V). Harris also alleges that the Town is liable under

Title VII of the Civil Rights Act of 1964 for terminating him on the basis of race (Count I). Currently pending

before the court is the defendants’ Motion to Dismiss (Dkt. No. 21), which the court grants in part and denies

in part. 

LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint need only contain “a short and plain statement

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STATEMENT

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While “detailed factual

allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555. The complaint must “include sufficient facts ‘to state a claim

for relief that is plausible on its face.’” Cole v. Milwaukee Area Tech. College Dist., 634 F.3d 901, 903 (7th Cir.

2011) (quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In ruling on a Rule

12(b)(6) motion, the court “construe[s] the . . . [c]omplaint in the light most favorable to Plaintiff, accepting as

true all well-pleaded facts and drawing all possible inferences in his favor.” Cole, 634 F.3d at 903.

ANALYSIS

I. Count I (Title VII)

The defendants have withdrawn their motion insofar as it relates to Count I (Dkt. No. 26, at 1), so the

court need not address the contentions relating to Count I.

II. Counts II and III (§ 1983 & § 1981)

The Town contends that Counts II and III should be dismissed because Harris alleged only that the

Town’s unlawful discriminatory motive was a “motivating factor” of his termination, and not a “but-for cause,”

which is a required element of a claim of discrimination under § 1983 and § 1981. See Fairley v. Andrews, 578

F.3d 518, 525-26 (7th Cir. 2009) (“[U]nless a statute . . . provides otherwise, demonstrating but-for causation is

part of the plaintiff’s burden in all suits under federal law.”). As the Town acknowledges, however, the Seventh

Circuit recently clarified that showing but-for causation is the plaintiff’s burden of proof at trial, and that at the

summary judgment stage, the plaintiff need only show that the unlawful discrimination was a motivating factor

of any adverse action. See Kidwell v. Eisenhauer, 679 F.3d 957, 964-65 (7th Cir. 2012). The Town has cited no

cases requiring an allegation at the pleading stage that the defendant’s discriminatory motive was a but-for cause.

Such a requirement would make no sense, for such statements about causation are legal conclusions, which are

not required at the pleading stage. Ryan v. Ill. Dep’t of Children & Family Servs., 185 F.3d 751, 764 (7th

Cir.1999) (“While a plaintiff may plead facts that show she has no claim, she cannot plead herself out of court

by citing to the wrong legal theory or failing to cite any theory at all.” (citation omitted)). The court thus declines

to apply the plaintiff’s evidentiary burden of proof at the pleading stage. Cf. Swierkiewicz v. Sorema N. A., 534

U.S. 506, 511 (2002) (“This Court has never indicated that the requirements for establishing a prima facie case

under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a

motion to dismiss.”).

III. Counts II, III, and IV Against the Town and the Individual Defendants in Their Official Capacity

Next, the defendants contend that Harris has failed to state a claim against the Town and against the

individual defendants in their official capacity in Counts II, III, and IV because he has not made sufficient

allegations to support the liability of a municipality under Monell v. Department of Social Services of the City

of New York, 436 U.S. 658 (1978). Under Monell, the Supreme Court has “required a plaintiff seeking to impose

liability on a municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s

injury.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997). One way to do so is to show

that the injury was caused by an official who has final policymaking authority for the municipality. See Jett v.

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Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Here, Harris has alleged that the adverse employment

decisions against him were taken by Dominick and Lelis, and he has alleged that they are the President of the

Town of Cicero and the Superintendent of the Cicero Police Department, respectively. (First Am. Compl. ¶¶ 9-

10.) 

The ultimate determination of whether Dominick and Lelis are final policymakers for the Town “is itself

a legal question to be resolved by the trial judge before the case is submitted to the jury,” and it is a question that

must be resolved on the basis of state and local law. Jett, 491 U.S. at 737; see also City of St. Louis v.

Praprotnik, 485 U.S. 112, 124 n.1 (1988). At the motion to dismiss stage, Harris’s allegations are sufficient to

state a claim, and the defendants have not carried their burden of showing that Dominick and Lelis are not final

policymakers for the Town. As the Seventh Circuit has explained: 

The defendants have the burden on a motion to dismiss to establish the legal insufficiency of the

complaint. Absent a clear showing by the defendants that Mr. Nicholas was not . . . a “final

policymaking authority” . . ., we must conclude that it was error for the district court to dismiss

the complaint. On remand, if the defendants elect to renew their motion to dismiss, they must

establish that, as a matter of “state and local positive law,” or as a matter of “ ‘ “custom or usage”

having the force of law,’ ” neither individual defendant was a final policymaker.

Yeksigian v. Nappi, 900 F.2d 101, 104-05 (7th Cir. 1990) (citations omitted). Here, the defendants have not even

discussed state or local law, yet alone carried that burden, so their motion to dismiss the claims against the Town

and the individual defendants in their official capacity fail.

IV. Count IV (Retaliation)

The defendants also argue that Count IV’s retaliation claim must be dismissed because Harris did not

sufficiently allege that his protected speech related to a matter of public concern. A public employee may not

be fired for exercising his free speech rights if his speech addressed a matter of public concern and “the

government’s interest as an employer in providing effective and efficient services outweighs the employee’s

interest as a citizen in commenting upon the matter of public concern.” Sullivan v. Ramirez, 360 F.3d 692, 698

(7th Cir. 2004). The court must make the determination of whether speech addresses a matter of public concern

“based on the content, form, and context of a given statement as revealed by the whole record.” Marshall v.

Porter Cnty. Plan Comm’n, 32 F.3d 1215, 1219 (7th Cir. 1994) (citation and quotation marks omitted). 

Here Harris alleges that he was fired because he elected to have the disciplinary charges against him heard

by an independent arbitrator pursuant to the collective bargaining agreement between Cicero and Harris’s union,

an action the complaint describes as “engaging in union activity.” (Dkt. No. 10 ¶¶ 15, 62, 66.) Harris is correct

that engaging in “union activity” can be speech on a matter of public concern. Hanover Twp. Fed’n of Teachers,

Local 1954 (AFL-CIO) v. Hanover Cmty. Sch. Corp., 457 F.2d 456, 460 (7th Cir. 1972). As the Seventh Circuit

explained, “[i]t does not follow, however, that all activities of a union or its members are constitutionally

protected.” Id. Here, Harris’s speech did not relate to the quintessential protected union activities, which are

“advocacy and persuasion in organizing the union and enlarging its membership, and also in the expression of

its views to employees and to the public.” Id. Instead, it related only to his own private disciplinary dispute with

the Town. The process for disciplining police officers is, of course, of some interest to the public in a broad sense.

That does not mean, however, that Harris’s speech about a single disciplinary process, related to himself

personally and communicated only to an arbitrator, addresses a matter of public concern. Marshall, 32 F.3d at

1219 (“If the speech concerns a subject of public interest but the expression addresses only the personal effect

upon the employee, then as a matter of law the speech is not of public concern.”). Harris has not alleged facts

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indicating that his speech went beyond his own personal situation to address the discipline of police officers

generally, or any other facts demonstrating that his speech was a matter of public concern. Accordingly, the court

holds that Harris has not alleged that he was terminated for speech addressing a matter of public concern. If he

can plead such facts, Harris may seek leave to file an amended complaint, but in the meantime Count IV is

dismissed. 

V. Count V

Finally, the defendants allege that Harris’s claim under the Illinois Public Labor Relations Act is

preempted because the Act requires such claims to be brought before the Illinois Public Labor Relations Baord

under 5 ILCS 315/11. The defendants’ argument, to which Harris does not respond, is correct. See Ryherd v. Gen.

Cable Co., 530 N.E.2d 431, 434 (1988). Count V is dismissed. 

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