recover punitive damages against Cook County). Therefore, the County’s motion to
dismiss Plaintiffs’ claim to the extent that Plaintiffs seek punitive damages against the
County is granted.

Punitive damages may be available against public officials in certain instances,
Newport, 453 U.S. at 269-270, but a suit against a public official in his or her official
capacity is generally the same as a suit against the government entity that the official
represents. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Hernandez v.
O'Malley, 98 F.3d 293, 296 (7th Cir. 1996); Rascon v. Hardiman, 803 F.2d 269, 274
(7th Cir. 1986). Therefore we shall treat the claims against Eugene Moore and
Christine Boardman in their official capacity as redundant claims against the County
and Union.

The County also seeks to dismiss Plaintiffs’ claim against Eugene Moore in his
individual capacity. In order to bring a claim against a public official in his or her
individual capacity, facts must be shown that the public official had “sufficient
personal involvement.” Black v. Lane, 22 F.3d 1395, 1401, n. 8 (7th Cir. 1994)(stating
that for individual capacity claim against corrections institution administrator, plaintiff
had to do more than allege that the administrator was in charge of the institution) ; see
also Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th. Cir. 1983)(stating that official

cannot be individually liable “unless he caused or participated in an alleged

-13-



LEGAL STANDARD

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of a complaint. Triad Associates, Inc. v. Chicago Hous. Auth., 892 F.2d
583, 586 (7th Cir, 1989). In ruling on a motion to dismiss, the court must construe the
allegations of the complaint in the light most favorable to the plaintiff, and all well-
pleaded facts and allegations in the complaint must be accepted as true. Bontkowsi v.
First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). The allegations of a
complaint should not be dismissed for a failure to state a claim “unless it appears
beyond a doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Conley vy. Gibson, 355 U.S. 41, 45-46 (1957).
Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts
sufficiently setting forth the essential elements of the cause of action. Lucien v.
Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992) With these principles in mind, we tum
to the instant motion.
DISCUSSION
I. Conspiracy Claim
To properly allege a civil conspiracy a plaintiff must include facts in the
complaint rather than mere conclusions. Rose v. Mony Life Insurance Co., 2001 WL

214200, *5 (N.D. II. 2001). To establish a civil conspiracy a plaintiff must plead facts

-4-



made complaints to the County and Union concerning the “temporary employee”
designation, 2) a Union representative reprimanded Collins for seeking positions not
available to “temporary employees”, and 3) a Union representative told Webb that she
was not entitled to join the Union because she was a “temporary employee.” Mere
knowledge on the part of both Defendants, however, is not sufficient. Plaintiffs must
do more that offer a conclusory accusation that Defendants have conspired against
them. Even if the County did use the “temporary employee” designation to cheat
employees of their rights it does not necessarily follow that the Union’s refusal to
protect Plaintiffs’ rights under the CBA was part of an agreement with the County.
Plaintiffs have failed to offer any alleged facts which if found to be true would show
that the County and Union were acting in concert under an agreement, Therefore, the
motions of both Defendants to dismiss Count III are granted.
IL. First Amendment Claim and Remaining Issues

As Plaintiffs have moved to dismiss counts J and TI and we have disposed of
count III above, we are left only with Count IV to deal with. We note that count IV
includes the term “conspiracy” within it, but as indicated above Plaintiffs have failed
to sufficiently plead a conspiracy claim. Aside from the conspiracy language in Count

IV, the Count alleges that Defendants violated Plaintiffs’ rights under the First

Amendment and Section 1983.



In the instant case Plaintiffs have indicated the roles of Defendants in the alleged
conspiracy. According to Plaintiffs the County designated Plaintiffs as “temporary
employees” in order to deny them rights and benefits owed to non-temporary
employees. The Union on the other hand, allegedly abided by the County “temporary
employee” policy and used the designation as an excuse not to fight for Plaintiff’s
tights under the CBA.

The County argues that the conspiracy claim is deficient because Plaintiffs fail
to allege an underlying wrong upon which the conspiracy is based. Plaintiffs have not
alleged facts sufficient to show any violation of an Illinois statute or common law.
Defendants are correct to point out that the “temporary employee statute” referred to
by Plaintiffs in the complaint, 55 TLCS 5/3-12002 is nothing more than a definitions
section for terms found in Division 3-12 of the Counties Code. Division 3-12 involves
a merit employment system and a Personnel Policy Commission that can only be
created in a county having a population of 350,000 or more but less than 1,000,000
inhabitants... .” 55 ILCS 5/3-12001,

Count TIT does not specifically refer to any underlying wrong for the conspiracy
claim. Plaintiffs merely make references in Count III to Counts I and II which the
Plaintiffs have acknowledged should be dismissed, The only federal statute referred
to in the complaint is the National Labor Relations Act (““NLRA”) which is included

-6-



establishing the following elements: (1) a combination of two or more persons; (2) for
the purpose of accomplishing by some concerted action; (3) either an unlawful purpose
or a lawful purpose by unlawful means. Rose, 2001 WL 213200 at *5 ; Adcock v.
Brakegate, Lid., 645 N.E.2d 888, 894 (Ill. 1994). The facts alleged must indicate the
role of each defendant in the conspiracy, Cohabaco Cigar Co. v. United States
Tobacco Co., 1998 WL 773696, *6 (N.D. Ill. 1998), and establish the existence of an
agreement between the alleged conspirators to perform the alleged wrong. Rose, 2001
WL 214200 at *5; Herion v. Village of Bensenville, 2000 WL 1648937, *7 (N.D. Ill.
2000). As stated above the purpose of the conspiracy or the means by which the
conspiracy 1s executed must be unlawful. Thus, a conspiracy claim cannot stand alone.
In addition to the conspiracy there must also be alleged be some underlying wrong
which is the unlawful objective or means of the conspiracy. Servpro Industries, Inc.
y, Schmidt, 905 F.Supp. 470, 474 (N.D. ILL. 1995)(indicating that “an underlying wrong
must exist for an action for conspiracy to exist.”); See also North American Plywood
Corp. v. Oshkosh Trunk & Luggage Co., 263 F.2d.543, 545 (7th Cir. 1959)(stating that
“a defective count in tort cannot be made effective merely by injecting into it a charge
of conspiracy to commit the tortious acts alleged.”). This Court has required that civil
conspiracy be pled with particularity under Federal Rule of Civil Procedure 9(b).

Rose, 2001 WL 214200 at *5; Cohabaco Cigar Co., 1998 WL 773696 at *6.

-5-



employment scheme. The alleged wrongful conduct of Defendants involving
politically motivated hiring and Plaintiffs First Amendment rights was restricted to
circumstances surrounding Plaintiffs’ access to open County positions. The facts
alleged in the complaint involving other harms to Plaintiffs such as lost wages, lost
vacation benefits, and denial of medical insurance were not tied into the First
Amendment argument and are therefore not relevant to this case as there is no
underlying wrong by which they can be tied to a conspiracy claim. We cannot address
those allegations under supplemental jurisdiction as Plaintiffs suggest because
Plaintiffs have failed to plead a cause of action which incorporates those allegations,
Thus, although Plaintiffs have alleged an underlying offense to support the conspiracy
claim, many of the allegations listed in the complaint are superfluous.

The main problem with Plaintiffs’ conspiracy claim is that they have not
provided alleged facts to establish that there was any sort of agreement between the
Defendants. As stated above, an agreement between the conspirators is essential to a
conspiracy claim. Plaintiffs have not provided alleged facts to establish that there was
any sort of agreement between the Defendants. Plaintiffs have alleged only that the
County and the Union had knowledge of the “temporary employee” policy, that it was
not in accordance with the CBA, and that the policy was part of a political patronage

scheme. To establish that Defendants had such knowledge Plaintiffs claim: 1) they

-8-



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge “OT! Sitting Judge if Other
noe Magisrate Judes Charles P. Kocoras than Assigned Judge
CASE NUMBER 02 C 3279 DATE 9/12/2002
CASE Webb et al vs. Local 73 et al
TITLE

[tn the fullowing box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (h) state briefly the nature
af the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) D Filed motion of [ use listing in “Motion” box above.]

(2) im} Brief in support of motion due _

3) Oo Answer brief to motion due___. Reply to answer briefdue___.

(4) a Ruling/Hearingon eset fort

(5) a Status hearing set for 9/25/2002 at 9:30 A.M.

(6) Qo Pretrial conference[held/continued to] [set for/re-sct for]on__set for__ at
(7) ao Trial[set for/re-sct for]on at

(8) Q (BenchJury trial] [Hearing] held/continucd to | .___ at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

ORRCP4(Gn) Cl Local Rule 41,1 O FRCP41{a)(1) 0 FRCP41(a)(2).

ao) i (Other docketentry] Ruling held. Defendants’ motions (Docs 7-1, 14-1, 16-1 and 19-1) to dismiss
are granted. We grant the Union’s motion to dismiss Counts I, II, UJ, and IV. We grant the County’s
motion to dismiss Counts [1, IM, and Count IV to the extent that Plaintiffs seek equitable relief and
punitive damages. We also grant the Union’s motion to dismiss all claims against Christine Boardman
in her individual capacity and the County’s motion to dismiss all claims against Eugene Moore in his
individual capacity. We shall treat the claims against Chnstine Boardman and Eugene Moore in their
official capacity as redundant claims against the County and Union. The County is granted leave to file
additional briefing concerning Plaintiffs’ claim for non-equitable relief and the class certification issue.

dal @ {For further detail see order attached to the original minute order.]

cui
Nuiiher

No notices required, advised in open court

No notices required. number of notices

Notices mailed by judge's staff. SEP 7 3 2nn7

Notified counsel by telephone. eats dare dockered

wv | Docketing to mail notices.

Mail AO 450 form oe
canara judge.

* courtroam

SCT deputy’s
initials

date muiled notice

Date/time received in
central Clerk's Oftice mailing deputy initials



In this case Plaintiffs point to the alleged conspiracy between the County and

Union to show that the Union was acting under the color of state law. However, to
survive a motion to dismiss the plaintiffs’ allegation ofa conspiracy as part ofa Section
1983 claim must include more than a “bare legal conclusion unsupported by any factual
basis.” Leahy, 912 F.2d at 922. In this case Plaintiffs have failed to show that the
Union was a willful participant in a joint action with the County. Plaintiffs have stated
nothing more than a bare legal conclusion, indicating that the County and Union
conspired against them. Therefore, the Union was not acting under the color of state
law and the Union’s motion to dismiss Count IV is granted.

B. Whether Consent Decree Bars Claim

Defendants argue that a consent decree entered in Shakman v. Democratic Org.
of Cook Cty., 481 F.Supp 1315, 1356-59 (N.D. TI. 1979) (“Shakman decree”) bars
Plaintiffs from asserting their claim under Count IV. The decree, which is still in
effect, permanently enjoins the named public officials and their successors from
“conditioning, basing or knowingly prejudicing or affecting any term or aspect of
governmental employment, with respect to one who is at the time already a government
employee, upon or because of any political reason or factor... .” Plotkin v. Ryan,
1999 WL 965718, *1 (N.D. Ill. 1999). A plaintiff whose claim falls within the scope

of a consent decree cannot seek equitable relief outside of the consent decree. Martin

-ll-



A. Whether Union was Acting Under Color of State Law

The Union argues that the Section 1983 claim against it should be dismissed
because it was not acting under color of state law. Section 1983 states in part as
follows:

Every person who, under color of any statute, ordinance, regulation, custom or

usage, of any State or Territory . . subjects, or causes to be subjected, any

citizen of the United States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action a law, suit in equity, or other proper proceeding for redress
Thus in order for a private entity such as the Union to violate Section 1983 it must have
been acting under color of state law. 42 U.S.C. § 1983; Leahy v. Bd. of Trustees of
Community College District No. 508, County of Cook, 912 F.2d 917, 921 (7th Cir.
1990). Generally a union is not a state actor, Messman v. Helmke, 133 F.3d 1042,
1044 (7th Cir. 1997), but, a private entity acts under the color of state law and therefore
is subject to Section 1983 “when it is a willful participant in joint action with the State
or its agents.” Leahy, 912 F.2d at 921 (quoting Dennis v. Sparks, 449 U.S. 24, 27
(1980)). Thus, a plaintiff can plead a Section 1983 violation by alleging that a private

entity conspired with the State to deny plaintiff his or her rights. See, e.g. Tarpley v.

Keistler, 188 F.3d 788, 791 (7th Cir, 1999),

-10-



in Count. 29 U.S.C. § 159(a). Plaintiffs, however, do not dispute in their answer the
County’s assertion that jurisdiction would therefore be based on § 301 of the Labor
Management Relations Act (“LMRA”) and that as a “state or political subdivision “
of the United states the County does not fall within the definition of an “employer”
covered under the LMRA. See 29 U.S.C. §§ 152(2), 185(a); See also Bailey v.
Johnson, 1990 WL 77508, *1-2 (N.D. Ill. 1990)(indicating that the Will County
Sheriff's’s Office was not an “employer” covered by the LMRA),

The only underlying wrong that can be gleaned from the complaint is the claim
that Defendants prevented Plaintiffs from applying for open positions and denied
Plaintiffs their rights to “bump” newer employees from those open positions in order
to make room for politically motivated hiring, Thus, the only underlying wrong that
can be found in the complaint is the allegation that Defendants conspired to violate
Plaintiffs’ rights under the First Amendment and 42 U.S.C. § 1983 by operating the
political patronage scheme. Plaintiffs admit as much in their answers to Defendants
when in their opening paragraph entitled “The Central Issue In This Court,” they state:
“the real crux here is that all of the defendants are involved in the carrying out of an
unlawful, unconstitutional patronage employment scheme.” Plaintiffs then indicate
that other aspects of the case “are mere aspects of the scheme.” We note however, that
much of the Plaintiffs complaint involves facts that are not part of the alleged patronage

-7-



coverage for medical problems because they were unlawfully designated “temporary
employees.” Plaintiffs also claim that because they were unlawfully designated
“temporary employees” they were denied an opportunity to apply for other job
openings with the County and were denied the right to “bump” newer employces from
entering the open positions. Webb and Collins claim that they were denied access to
the open positions despite the fact that they were qualified and that Webb had received
ahighly satisfactory work performance review. Webb complained individually to the
County about her “temporary employee” status and Plaintiffs both took part in a group
grievance presented to the Union and County.

Plaintiffs brought a four count complaint. Count | alleges that the Union
breached its duty of fair representation. Count II alleges that Defendants violated
Plaintiffs’ rights under the National Labor Relations Act. Count III alleges that there
was a conspiracy between the County and the Union to deprive employees designated
as “temporary employees” of their rights. Count TV alleges that Defendants violated
Plaintiffs’ First Amendment rights by conspiring to deny them open positions in order
to make room for politically motivated hiring. Plaintiffs seek money damages,
punitive damages, injunctive relief, and other relief. Plaintiffs also seek certification
of two classes which share common interests with Plaintiffs, We note that in Plaintiffs’
answers to Defendants’ motions to dismiss Plaintiffs acknowledge that Counts I and

I should be dismissed,



constitutional deprivation.”). Although it is not necessary that the public official
directly participate in the wrongful conduct, it is still necessary to show that the official
was “directly responsible for the improper conduct.” McPhaul v. Board of
Commissioners of Madison County, 226 F.3d 558, 566 (7th Cir. 2000). A plaintiff
must show that the official “act[ed] or fail[ed] to act with a deliberate or reckless
disregard of plaintiff's constitutional rights, or [that] the conduct causing the
constitutional deprivation occur[ed] at her direction or with her knowledge and
consent.” /d. at 566(quoting Smith v. Rowe, 761 F.2d 360, 369 (7th Cir, 1985)). In the
instant case the Plaintiffs have not alleged sufficient personal involvement on the part
of Eugene Moore. Plaintiffs entire claim against Moore is based on the fact that he is
the Recorder of Deeds. Plaintiffs have not alleged that he had any personal
involvement in designating Plaintiffs as “temporary employees” or organizing the
alleged scheme to deny them their rights. Neither has Plaintiff alleged that Moore
acted deliberately and recklessly disregarding the Plaintiffs’ rights under the CBA, or
that he had knowledge of and gave his consent to the alleged scheme to deny
“temporary employees” their rights. Plaintiffs indicate in their answer to the County’s
motion that it would be “absurd not to assume” that a policy which ensures openings
for political hiring could be implemented without the knowledge and consent of
Moore, Plaintiffs bear the burden of pleading the essential elements of their claim and

~14-



non-equitable relief. We now also grant the County leave to include in that brief
argument concerning the denial of class certification.
CONCLUSION

Based on the foregoing analysis, we grant the Union’s motion to dismiss Counts
J, IJ, I, and TV. We grant the County’s motion to dismiss Counts II, III, and Count
TV to the extent that Plaintiffs seck equitable relief and punitive damages. We also
grant the Union’s motion to dismiss all claims against Christine Boardman in her
individual capacity and the County’s motion to dismiss all claims against Eugene
Moore in his individual capacity. We shall treat the claims against Christine Boardman
and Eugene Moore in their official capacity as redundant claims against the County and
Union. The County is granted leave to file additional briefing concerning Plaintiffs’

claim for non-equitable relief and the class certification issue.

CP Qae P Roeerea

Charles P, Kocoras
Chief Judge, United States District Court

Dated: September 12, 2002

-16-



forth below, we grant the Union’s motion to dismiss Counts I, TI, TI, and [V. We grant
the County’s motion to dismiss Counts II, Ill, and part of Count IV. We grant the
County’s motion to dismiss claims to the extent they seek punitive damages against the
County. Wealso grant the motions by Defendants to dismiss all claims against Eugene
Moore and Christine Boardman in their individual capacities.
BACKGROUND

Plaintiffs Cynthia Webb (“Webb”) and Sharon Collins (“Collins”) were hired
by the Office of the Cook County Recorder of Deeds (“Recorder’s Office”) and the
County of Cook as joint employers, Webb and Collins began working for the
Recorder’s Office in March of 2001 and the County terminated their employment on
February 8, 2002. Defendant Local 73 merged with Local 46 of the SETU in the late
fall of 2000. Prior to the merger Local 46 entered into a collective bargaining
agreement (“CBA”) on behalf of a bargaining unit of employees of the Recorder’s
Office effective December 1, 1998 and expiring November 30, 2001. Plaintiffs’ job
title and job code, Clerk [V-0906, is included on a list within the CBA that delineates
which positions are represented under the CBA.

Webb and Collins claim that during their employment with the County they were
unlawfully denied vacation pay, holiday pay, and other benefits on the ground that they

were “temporary employees.” Plaintiffs allege that they were denied insurance

-2-



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CYNTHIA WEBB and SHARON COLTINS,

individually and on behalf of all others similarly Pp.
situated,
{
Plaintiff, “
Stp 7 ¥ f
v2
Ob,
vs.
&, e
LOCAL 73, SERVICE EMPLOYEES 02 C 3279
“Bye
CHRISTINE BOARDMAN, personally and in Gt

her official capacity as President of LOCAL 73;
EUGENE MOORE, personally and in his official
capacity as Recorder of Deeds of Cook County,
and the COUNTY OF COOK, a body politic

)

)

)

)

)

)

)

INTERNATIONAL UNION, AFL-CIO, )
)

)

)

)

)

and corporate, )
)

)

Defendants.

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on a motion to dismiss brought by
Defendants Local 73, Service Employees International Union, AFL-C1O, and Christine
Boardman (“Union”) seeking to dismiss Counts I, II, II, and IV, This matter is also
before the court on a motion to dismiss brought by Defendants County of Cook
(“County”) and Eugene Moore seeking to dismiss Counts II, IIT, and TV, and to deny

Plaintiffs’ request for punitive damages, and class certification. For the reasons set

x



v. Davies, 917 F.2d 336, 339 (7th Cir. 1990); Dye v. Sheahan, 1995 WL 109318, *10,
n, 3 (N.D. Ill. 1995). The proper method to challenge a consent decree is though a
contempt action filed under the decree. Jd.

Count IV, alleging that Plaintiff's were denied access to positions to provide
openings for political hiring, falls within the scope of the Shakman decree. Plaintiffs
argue that although they are barred by the consent decree from seeking equitable relief,
they are not barred from seeking legal damages. Plaintiffs are correct, but they are in
fact seeking equitable relief, namely an injunction ordering the County not to continue
to violate the law in respect to the complaint. We therefore grant the County’s motion
to dismiss Count IV to extent that Plaintiffs seek equitable relief. In addition we grant
the County leave to file additional briefing in regards to dismissing Plaintiffs’ claim to
the extent that Plaintiffs seek non-equitable relief.

C. Punitive Damages and Individual Capacity Claims

Defendants also seek to dismiss Plaintiffs’ claim to the extent that Plaintiffs seek
punitive damages. Generally a plaintiff cannot seek punitive damages against a
government defendant under Section 1983. See City of Newport v. Fact Concerts, Inc,
453 U.S. 247, 271 (1981)(holding that as a general rule punitive damages cannot be
obtained against a municipality); Roscom v. City of Chicago, 550 F.Supp. 153, 157
(N.D. IIL. 1982)(citing City of Newport when holding that the plaintiff could not

-12-



they cannot rely on idle speculation to fill in the gaps. The motion to dismiss
Plaintiffs’ complaint against Eugene Moore in his individual capacity is granted.

Also, Plaintiffs have not alleged any personal involvement in the “temporary
employees” scheme by Christine Boardman and therefore, for the same reasons listed
above, all claims against Christine Boardman in her individual capacity are granted.

D, Whether Class Should be Certified

Plaintiffs define proposed Class I as employees in a position represented by the
Union that were unlawfully designated “temporary employees” and as a result lost
wages, and other benefits or were terminated. Plaintiffs also allege that common issues
of law and fact amongst Class I include topics such as loss of wages and medical care.
In light of the above analysis, the only remaining claim is against the County secking
non-equitable relief for violations of Plaintiffs’ rights under the First Amendment and
Section 1983. Therefore Plaintiffs’ description of Class I and the common questions
of law and fact consist mainly of assertions and issues that are no longer pertinent to
this case. Because the motions to dismiss have touched on many aspects of the
complaint and have materially altered the makeup this action, the parties arguments
regarding class certification are no longer entirely applicable. We therefore will not
rule today on the class certification issue. As stated above we grant defendants leave

to file additional briefing regarding dismissing Plaintiffs claim to the extent it seeks

-15-