UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

MARIE MARRERO, 

 

 Plaintiff, 

v.

FRATERNAL ORDER OF POLICE 

CHICAGO LODGE NO. 7,

Defendant.

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Case No. 12-cv-5280

Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Plaintiff, Marie Marrero, filed a five-count Third Amended Complaint against Defendant, 

Fraternal Order of Police Chicago Lodge No. 7, alleging sex discrimination, sexual harassment, 

and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. 

§ 2000e et seq., and the Illinois Human Rights Act (“IHRA”), 75 ILCS 5/1-101 et seq., and 

violation of the Family Medical Leave Act of 1993 (“the FMLA”). Defendant has, in turn, 

asserted a counterclaim against Marrero for fraudulent misrepresentation. Marrero has moved to 

dismiss Defendant’s counterclaim for failure to state a claim under Federal Rule of Civil 

Procedure 12(b)(6) and for failure to plead fraud with particularity under Federal Rule of Civil 

Procedure Rule 9(b). 

BACKGROUND

The following facts are drawn from Defendant’s counterclaim and are accepted as true

for purposes of the Motion to Dismiss. See Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 

763 (7th Cir. 2010); see also, e.g., Organ Recovery Sys. v. Preservation Solutions, Inc., No. 11 C 

4041, 2012 WL 2577500, at * 1 (N.D. Ill. July 4, 2012) (internal citations omitted) (“In 

considering each party’s motion to dismiss, the Court takes as true the facts alleged by the party 

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whose complaint or counterclaim is challenged.”). Marrero began working for the Defendant in 

May 2007 as a legal secretary for attorneys employed by Defendant. (Countercl. ¶ 4.) In 

November 2010, two attorneys employed by Defendant submitted written memoranda 

identifying problems with Marrero’s work performance. On December 6, 2010, Defendant met 

with Marrero to discuss her performance. (Id. ¶ 5-6.) Marrero claimed that the two attorneys 

had sexually harassed her. On January 31, 2011, Marrero represented that she had received a 

dictation tape containing a sexually harassing message from one of the attorneys, Paul Geiger; 

she subsequently provided that dictation tape to Defendant. (Id. ¶¶ 7-9.) The dictation tape was 

analyzed by Defendant’s forensic analyst, who determined that the tape was made before 

Marrero was employed by Defendant and that the tape had been dubbed and carefully 

manipulated. (Id. ¶ 11.) 

Defendant alleges that Marrero re-recorded the sexually harassing message onto the tape 

left for her to transcribe and that she falsely and intentionally misrepresented the tape as 

evidence to support her false claims of sexual harassment. (Id. ¶ 13.) Defendant further claims 

it acted in reliance on the truth of the tape and incurred injury in the amounts of attorney fees and 

forensic expert fees. (Id. ¶¶ 16-17.) 

LEGAL STANDARD

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint . . . .” 

Christensen v. County of Boone, 483 F.3d 454, 458 (7th Cir. 2007). Under the federal notice 

pleading standards, “[a] plaintiff’s complaint need only provide a short and plain statement of the 

claim showing that the pleader is entitled to relief, sufficient to provide the defendant with fair 

notice of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) 

(internal quotations omitted). 

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When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed in 

the light most favorable to the plaintiff; all well-pleaded factual allegations are accepted as true, 

and all reasonable inferences are construed in the plaintiff’s favor. Id. However, a complaint 

must allege “enough facts to state a claim to relief that is plausible on its face” to survive a 

motion to dismiss. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). For a claim to 

have facial plausibility, a plaintiff must plead “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). “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Id. Rather, the plaintiff’s allegations 

must “plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 

‘speculative level’; if they do not, the plaintiff pleads itself out of court.” E.E.O.C. v. Concentra 

Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Twombly, 550 U.S. at 555). 

ANALYSIS

To state a claim for fraudulent misrepresentation under Illinois law, the plaintiff must 

allege: (1) the defendant made a false statement of material fact, (2) with knowledge or belief 

that the statement is false, (3) intending to induce the plaintiff to act, (4) that the plaintiff acted in 

reliance on the truth of the statement, and (5) that the plaintiff suffered damages as a result of the 

reliance. Connick v. Suzuki Motor Co., 675 N.E.2d 584, 591 (Ill. 1996). Furthermore, under the 

heightened pleading standard of Rule 9(b), the plaintiff must state with “particularity” the 

“circumstances constituting fraud or mistake.” Fed. R. of Civ. Pro. 9(b). Such circumstances 

include “the identity of the person making the misrepresentation, the time, place and content of 

the misrepresentation, and the method by which the misrepresentation was communicated.” 

Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir. 2006) (internal quotations and citations omitted); 

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see also DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990) (the circumstances must be 

pleaded in detail, and “[t]his means the who, what, when, where, and how.”). 

Plausibility

Marrero first argues that Defendant’s counterclaim should be dismissed because its 

allegations are not plausible under the standard articulated in Twombly, 550 U.S. 544 and Iqbal, 

556 U.S. 662. Marrero contends that, because Defendant implicitly acknowledged that Marrero

received a dictation tape with an offensive sexual message from Geiger, its claim for fraud is 

highly implausible and it has pled itself out of court. 

The essence of Defendant’s fraud claim is that Marrero obtained an earlier recorded 

message by Geiger with offensive sexual comments, and that she manipulated the recording and 

re-recorded it onto a dictation tape in order to bolster her claims of sexual harassment and 

discrimination. Defendant further claims that its forensic analyst’s examination of the tape 

supports that it was dubbed from a recording made before Marrero was hired. Given the forensic 

analysis that the tape was manipulated, it is not so highly implausible that Marrero may have 

altered the tape and used it as evidence against her bosses and in support of her claims. 

Consequently, the Defendant’s counterclaim is not dismissed for lack of plausibility under the 

standard of Twombly, 550 U.S. 544, and Iqbal, 556 U.S. 662. 

Particularity

Marrero next argues that Defendant has failed to state its claim with particularity, as 

required by Rule 9(b). In its counterclaim, Defendant has failed to provide specific details about 

the alleged fraud. For example, Defendant does not identify to whom Marrero “falsely 

represented that she had a dictation tape” (see Countercl. ¶ 8), or to whom Marrero allegedly 

provided the manipulated tape (see Countercl. ¶13). Instead, Defendant refers generically to the 

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“FOP” (the Fraternal Order of the Police) and fails to identify specific individuals who heard or 

witnessed Marrero’s alleged fraudulent misrepresentations. (See Countercl. ¶¶ 6, 8, 9.) 

Furthermore, Defendant provides no specifics on what Marrero said about the manipulated tape. 

In short, Defendant has failed to allege the circumstances in detail, “the who, what when, where, 

and how” of the alleged fraud. See DiLeo, 901 F.2d at 627.1

 Consequently, Defendant’s

Counterclaim must be dismissed for failing to comply with Rule 9(b). 

CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to Dismiss Defendant’s 

Counterclaim [21] is granted. Defendant’s counterclaim is dismissed without prejudice. 

Defendant may re-plead its counterclaim within thirty days if it can do so in accordance with the 

heightened pleading requirements under Federal Rule of Civil Procedure 9(b). 

Date: June 25, 2013 ______________________________

JOHN W. DARRAH

United States District Court Judge

 1 It bears noting that in its opposition to Plaintiff’s motion, Defendant has included 

certain factual assertions, such as the assertion that the tape was an “inside joke,” that are not 

supported by its counterclaim. Such unsupported facts have been disregarded and, in any event, 

do not provide the particularity required by Rule 9(b). 

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