conduct, because Hillard is not a final policymaker for the City. Both the City and Hillard
argue that plaintiffs’ alleged speech does not involve a matter of public concem protected by

; the First Amendment. Finally, Hillard argues that he is entitled to qualified immunity with
respect to the First Amendment claim. We address these arguments in turn.

1. Superintendent Hillard as a final policymaker

A municipality may not be held vicariously liable under § 1983 for its agents’
constitutional torts. Monell v. New York Department of ‘Social Services, 436 U.S. 658, 694
(l 978), Rather, a municipality is only if the constitutional deprivation is caused by a
municipal policy or custom, “whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy.” Jd. In this case, plaintiffs argue that their
unconstitutional dismissal was caused by Hillard, who they say has final policymaking

_authority for the City in such matters. Am. Cplt. (8. Ifso, they can maintain a claim against

the City. See, e.g., McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).

In Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), the Seventh Circuit addressed
whether.Chicago's Superintendent of Police is a policymaker for purposes of Monell. Fred
Rice, who was Superintendent at the time, reshuffled the senior ranks of the Police
Department, promoting thirteen A frican-Americans, nine whites, and three Hispanics, while

_demoting twenty-five whites, one Hispanic, and no African-Americans. Jd. at 398. Some of
the demoted officers filed suit against Rice and-the City under 42 US.C. § 1983, contending
that Rice had impermissibly based his decisions on race and political affiliation. The court
conceded that Rice had final authority to make personnel decisions but said that this did not
make him a policymaker: “{a]uthority to make a final decision need not imply authority to
establish rules. In Chicago it does not.” Jd. at 401. Rather, the court said, policy was set by

4



this stage of the case, we cannot dismiss the First Amendment claim against Hillard based on
his qualified immunity defense.
Conclusion
For the reasons stated above, the Court denies the motion to dismiss. Defendants are

required to answer within ten days all claims that they have not yet answered.

Date: November 25, 2002

ry . MATTHEW F. KENNELLY
United States District Judge



that the Board “as a matter of policy, ... did not intervene in employment decisions” of the
department in question. Id. This, along with other evidence, was sufficient to allow a fact
finder to determine that the Board had delegated the authority to make employment policy
decisions, not simply the authority to hire and fire. Id.

In this case, plaintiffs have sufficiently alleged what the plaintiff in Auriemma did not:
that via custom and practice, the City had delegated to Hillard final authority to make policy
regarding personnel matters, and not just authority to hire and fire. The City reads paragraph

9 of the Amended Complaint as saying only the latter, but it is susceptible of the broader

reading ascribed to it by plaintiffs in their response to the motion to dismiss in an effort to
distinguish their case from Auriemma. Because we are dealing with a motion to dismiss, we
must construe plaintiffs’ allegations liberally. Though we are skeptical regarding plaintiffs’
ability to prove the delegation they claim, the amended complaint entitles them to an
opportunity to try. The City’s motion to dismiss on this basis is therefore denied.
2. Protected speech
__...A public employee’s speech is protected by the First Amendment if it addresses a
~~ matter of public concern, and the employee’s interest in expression outweighs the state’s
interest as an employer in promoting the efficiency of the public services it performs through
its employees. Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education of
“Township High School District 205, 391-U:8: 563 (1968):—The issue of discrimination in
public employment is unquestionably a matter of considerable public importance, see, e.g.,
Kokkinis v. Ivkovich, 185 F.2d 840, 844 (7th Cir. 1999); defendants do not argue otherwise.
But as the Seventh Circuit stated in Kokkinis, “speaking up on a topic that may be deemed
~ one of public importance does not automatically mean the employee’s statements address a

6



the City’s legislative body in passing the rules that governed the Superintendent’s conduct,
rules which Rice was claimed to have violated. Id. ‘Though the court noted that such
violations, if “systemic in nature[,]’ can amount to local policy,” it held that plaintiffs
effectively had conceded that such was not the case by alleging that Rice had departed from
ordinary practice. Jd. (quoting Sims v. Mulcahy, 902 F.2d 524, 543 (7th Cir. 1990)). Judge
Ripple emphasized this point in his concurring opinion: “Under the facts of this case, Rice
can claim no ... source of authority [other than state law and municipal ordinances] and we
need not speculate whether, on other facts, a custom or usage having the force of law might
make him ... a policymaker.” Id. (Ripple, J., concurring) (emphasis added).

In Kujawski v. Board of Commissioners, 183 F.3d 734 (7th Cir. 1999), Judge Ripple,
writing for the court, developed this same theme. As in Auriemma, the plaintiff in Kujawski
contended that the chief of an administrative department — a county probation office — had
fired him in violation of the First Amendment, and he sued the county under 42 U.S.C. §1983.
The trial court dismissed the plaintiff's claim, holding that under state law, the county board
had final policymaking authority over the department. Consistent with Auriemma, the trial
tuled that the fact that the chief probation officer had final authority to make personnel
decisions did not make him a policymaker for purposes of municipal liability under §1983.
The Seventh Circuit agreed that “the mere unreviewed discretion to make hiring and firing
decisions does not amount to policymaking authority. There must be a delegation of
authority to set policy for hiring and firing, not a delegation of only the final authority to hire
and fire.” Jd, at 739, But it held that there was a genuine factual issue regarding “whether the
(County] Board had, as a matter of custom, delegated final policymaking authority” to the
chief probation officer who had fired the plaintiff. Jd. It construed the evidence as suggesting

5


First Amendment claims. He argues that he had discretion to choose for promotion
whomever he wanted among those who were qualified. , Though that is no doubt true as a
matter of municipal or state law, it is well established that the prohibition on retaliating
against public employees for exercising their First Amendment rights extends to a failure to
give a promotion. See Rutan v. Republication Party of Illinois, 497 U.S. 62, 72 (1990).
Hillard also argues that it was not clearly established at the time of the promotion
denials that failure to promote employees in the circumstances of this case violated those
employees’ constitutional rights. Though it is conceivable that Hillard may be able to
demonstrate an entitlement to qualified immunity at the summary judgment stage, his
argument fails at the current juncture. As the Seventh Circuit has recently counseled,
qualified immunity is “almost always a bad ground for dismissal” under Rute 12(b)(6). See
_ . dacobs v..City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000); id. at 775 (Easterbrook, J.,
concurring). Under the Federal Rules’ notice-pleading regime, a plaintiff is not required to
plead around an anticipated qualified immunity defense, see Gomez v. Toledo, 446 U.S. 635,
639-40 (1980), and.thus the facts and circumstances bearing on the assertion of qualified
immunity are at this point unknown to the Court. At this stage we must ask whether, taking
the complaint’s allegations in the light most favorable to the plaintiffs, it is beyond doubt that
plaintiffs could prove no set of facts under which a claim of immunity would be denied. The
answer to that question is no. If, for example, DeLoughery made repeated comments of
which Hillard was aware to the effect that the Department was doing a poor job of promoting
women to significant positions, and Hillard conceded that he based his decision to pass
DeLoughery over for promotion on her outspokenness about this issue, he would not be

entitled to qualified immunity. Because we aré not able to rule out this or similar scenarios at

8



Minute Order Form (06/97)

United States District Court, Northern District of INinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge If Other

Matthew F. Kenneily thant Autived Judge

CASE NUMBER 02 C 2722 DATE 11/25/02
CASE Deloughery vs. City of Chicago
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}

DOCKET ENTRY:
(1) i) Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@) Oo Answer brief to motion due. . Reply to answer brief due.
(4) i] Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at .
?) oO Trial{set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(m) O)Local Rule 41.1 CI FRCP41(a)(1) [2 FRCP41(a)(2).
Ce _| [Other docket entry] For the reasons set forth on the attached order, the Court denies the motion
to dismiss. Defendants are required to answer within ten days all claims that they have not yet answered.
agli a (For further detail see order (on reverse side of/attached to) the original minute order.]
v No notices required, advised in open court. Document
Number

No notices required. number of notices

Notices mailed by judge's staff.
Notified counsel by telephone. DEC 032002:
Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

FUNDS LOWISIC“s"
WuaT9 asa

date miley notice

courtroom
deputy's
initials

W2:S Hd 2-930 20
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OR

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matter of public concern as that term is employed in Connick.” Id. Rather, one must “delve
deeper into the precise content, form, and context of the speech in question: was it the
employee’s point to bring wrongdoing to light? Or to raise other issues of public concem,
because they are of public concer? Or was the point to farther some purely private
interest?” Id. (quoting Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987)).
Defendants focus their attention on the circumstances surrounding plaintiffs’ alleged speech,
arguing that it is clear from the context that they were addressing only their own interests, not
matters of public concern. But at least some of what plaintiffs allege in their complaint is
suggestive of a broader goal, specifically plaintiffs’ claimed development and participation in
discussion groups concerning these issues, and their claimed advocacy of promotions for '
women and Hispanics generally, not just for themselves. See Am. Cplt. 4913, 14. And
perhaps more importantly for present purposes, the inquiry requires an examination into the-
factual circumstances of the alleged speech ~ including the plaintiffs’ motivation? — that
cannot properly be undertaken in the context of a motion under Rule 12(b)(6): ‘For now it

suffices that plaintiffs have alleged, with detail not required by the Rules of Civil Procedure, --

“enough to defeat any contention that “it appears beyond doubt that the plaintiff can prove no

~ F.3d 895, 908 (7th Cir. 2002).

set of facts in support of [her] claim which would entitle [her] to relief.” Conley v. Gibson,

355 U.S. 41, 45-46 (1957).
wy Qualified immunity-~----—--—-—- ee sermon

Hillard argues that he is entitled to qualified immunity from liability on plaintiffs’

? However, “[a] personal aspect contained within the motive of the speaker does not
necessarily remove the speech from the Scope of public concern,” | Gustafson v. Jones, 290


Plaintiffs also allege in the amended complaint that before and after the filing of these
charges, they had written and spoken to Hillard to express their concern about the Police
Department’s alleged failure to promote women, the need to develop child care facilities for
police officers due to the nature of their duties and “the positive impact of child care facilities
upon job performance and satisfaction for employees, particularly women,” and the need to
assign more women in specialized and prestigious units of the Department such as fhe :
Detective Division. DeLoughery also alleges that she expressed to Hillard her concern that
Hispanic women were underrepresented in the Department as a whole and in particular in
higher ranks and specialized units. Both plaintiffs allege that they developed and participated
in discussions among Police Department employees concerning bias in promotions, and that
Hillard was aware of this.

Count 2 does not squarely allege that plaintiffs were denied promotion to captain
based on their exercise of First Amendment rights. Both sides, however, construe the
amended complaint as alleging exactly that.

Discussion

A motion to dismiss tests the sufficiency of the complaint without deciding its merits.
Gibson v. City of Chicago, 910.F.2d 1510, 1520 (7th Cir. 1990). The Court must construe all
allegations in plaintiffs’ complaint in the light most favorable to plaintiffs, taking the
complaint’s allegations as true. Bontkowski v. First National Bank of Cicero, 998 F.2d 459,

461 (7th Cir. 1993). We may dismiss the complaint only if “it is clear that no relief could be
granted under any set of facts that could be proved consistent with the allegations of the
complaint.” Cook v. Winfrey, 141 F.3d 322, 327 (7th Cir. 1998).

The City argues that it cannot be held liable under §1983 for Hillard’s alleged

3



moved to dismiss Count 2.
In July 2000, the City announced a promotional process for persons seeking

_ promotion to the position of Captain in the Police Department. Both plaintiffs applied for the
position. According to the amended complaint, Chicago Police Superintendent Hillard had
the authority to select candidates to be promoted. In December 2000, January 2001 and
January 2002, various candidates were promoted, but both plaintiffs were passed over. In
Count 2, they allege that they were denied the promotion based on their gender in violation of
the Equal Protection Clause and in retaliation for their exercise of their free speech rights
under the First Amendment. In the motion to dismiss, the City argues that plaintiffs have
failed to allege a proper basis for imposition of municipal liability under §1983; both
defendants argue that plaintiffs have failed to allege that their speech involved matters
protected by the First Amendment; and Hillard argues that he is entitled to qualified immunity
with respect to the free speech claim. Neither defendant attacks the equal protection claim on
its merits or based on qualified immunity.

According to the amended complaint, in May 1998, Johnson filed a gender
discrimination charge with the Ilinois Department of Human Rights and the Equal
Employment Opportunity Commission arising from her non-promotion to watch commander
in 1998. In August 2000, DeLoughery filed with the same agencies a charge claiming she
was denied promotion and transferred from the position of “commanding officer” to
lieutenant in March 2000 due to her gender and national origin, and that she had been denied
unspecified promotions in retaliation for complaining about discrimination. Both plaintiffs
filed similar charges with the Department of Justice, Office of Civil Rights in 2000

(DeLoughery) and 2001 (Johnston).



IN THE UNITED STATES DISTRICT COURT
mo . .* FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DOLORES DELQUGHERY and )
MARIE JOHNSTON, )
)
Plaintiffs, )
)
vs. ) Case No. 02 C 2722 |
) .
) "
CITY OF CHICAGO and TERRY HILLARD, ) MK. ..
Superintendent of the Chicago Police Department, ) hag tk; %
) oe
Defendants. ) "cag

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

~~ Defendants City of Chicago and Terrence Hillard! have moved to dismiss the claims
of plaintiffs Dolores DeLoughery and Marie Johnston pursuant to Fed. R. Civ, P. 12(b)(6).
For the reasons stated below, the Court denies defendants’ motion.

a “Background
Both plaintiffs are women who are employed as Lieutenants with the Chicago Police
Department. DeLoughery, who is of Hispanic national origin, is assigned as a Commanding

Officer in the Youth Division. Johnston is assigned as a field lieutenant in the Third District

~~ of the Patrol Division. Though the amended complaint is somewhat less than a model of

clarity, it appears that they are making claims under Title VII of the Civil Rights Act of 1964,

42 U.S.C. §2000e-5 (Count 1), and under 42 U.S.C. §1983 (Count 2). Defendants have

! Though Hillard is not identified as a defendant in the amended complaint’s caption,
the body of the complaint clearly indicates that plaintiffs intended to name him.

HO