r

No. 01 C 5125 Page 4

the alleged wrongdoing is attributed to Genova.

The complaint claims that Garrison and Wilhelm directed an investigation of plaintiff
based on allegations they knew to be false, submitted him to numerous drug tests, and
ultimately fired him. Allegedly, that these actions were part of a conspiracy to retaliate against
plaintiff for adverse testimony against the mayor’s office and to keep him from speaking freely
in the future (cplt. {| 22, 26, 27, 37, 40, 41, 44). Conduct that silences or chills free speech or
association is actionable. See Power v. Summers, 226 F.3d 815 (7th Cir. 2000). Under the
minimal Rule 12(b)(6) standard, plaintiff has alleged enough involvement by each defendant
in the alleged retaliation to go forward. See Jones v. City of Chicago, 856 F.2d 985, 992-993
(7th Cir. 1988).

Plaintiff also seeks relief against Garrison and Wilhelm (as well as defendants Genova
and Qualkinbush) under 42 U.S.C. § £985. To state a claim plaintiff must allege the existence
of a conspiracy motivated by racial or other class-based animus and facts from which a
conspiracy can be inferred. Quinones y. Szorc, 771 F.2d 289, 291 (7th Cir. 1985). The facts
detailing the conspiratorial agreement can be pleaded generally, while those facts documenting
the overt acts made in furtherance of the conspiracy must be pleaded specifically. Id.

Did plaintiff plead enough overt acts from which to infer that there was a conspiratorial
agreement to retaliate against him? He alleges that Wilhelm and Garrison investigated him
regarding allegations they knew to be false and submitted him to multiple drug tests.
Defendants may have had justification for these actions, but at this stage in the case we must
take as true plaintiff's assertion that these actions were overt acts in furtherance of a

conspiracy to retaliate against him. Plaintiff has offered enough to go forward.



a

No. 01 C 5125 Page 3

City, plaintiff must allege that the deprivation of rights was a result of a policy or custom of
the City or the conduct of a person with final policymaking authority. Baxter by Baxter v.
Vigo County School Corp., 26 F.3d 728, 734-35 (7th Cir. 1994). The complaint states that the
City and Genova “adopted an illegal policy of political harassment and retribution against
City employees who did not share the Defendants’ political viewpoint or opposed the
Defendants’ policies” (¥ 68). Nowhere in the complaint does plaintiff reference an express
policy. Instead, he alleges that the City, through the conduct and direction of Genova, adopted
a custom of making human resource decisions based upon employees’ protected speech and
Political affiliation.

The City argues that the legal conclusion that it had a custom of discrimination is not
enough to support this claim without underlying factual allegations. While plaintiff will
eventually have to flush out more facts to support his claim of an unconstitutional practice or
custom, he has successfully alleged that Genova, in his capacity as final policymaker, engaged
in conduct that violated plaintiff's First Amendment rights. Under the Rule 12(b)(6) standard,
this is enough to support the claim that the City had an unconstitutional practice of violating
speech and association. See generally City of St. Louis v. Praprotnik, 485 U.S.112 (1988). As
plaintiff apparently recognizes, punitive damages are not available against the City.

Plaintiff sues Wilhelm and Garrison in their individual capacities. Individual liability
under § 1983 arises when a defendant acts under color of law and violates a plaintiff's rights,
privileges, or immunities secured by the Constitution or federal law. Lanigan v. Village of East
Hazel Crest, Ilinois, 110 F.3d 467, 471 (7th Cir. 1997). Defendants argue that there are no

allegations that they were involved or knew of any violations of plaintiff's rights, and that all



No. 01 C 5125 Page 5

Plaintiff s final federal claims are brought under the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1962(c) and (d). To state a claim plaintiff must allege
conduct of an enterprise through a pattern of racketeering activity. U.S. v. Dote, 150
F.Supp.2d 935 (N.D.HL 1996). Defendants challenge these claims for failing to allege a
sufficient conduct to show a pattern of racketeering activity or conspiratorial intent.

RICO’s pattern of activity element will be met if plaintiff alleged multiple episodes from
which one can infer that there is an ongoing course of racketeering conduct. Papat_y.
Cremosnik, 635 F.Supp. 1402, 1412-1413 (N.D.II. 1986). As discussed above, plaintiff has
alleged that Garrison and Wilhelm interfered with a criminal investigation of the
administration by falsely investigating and harassing him, supposedly in an effort to get him
to change his testimony. He also claims that they fired him in retaliation for testifying against
the administration. While these alleged episodes may have had a common purpose, they are
distinct from each other and are enough to show a pattern of activity under the Rule 12(b)(6)
standard. Id.; 18 U.S.C. 1961(1) (racketeering activity includes tampering with a witness and
retaliating against a witness) and (5) (“pattern of racketeering activity’ requires at least two
acts of racketeering activity...the last of which occurred within ten years...after the commission
of a prior act of racketeering activity”). The same alleged conduct is sufficient to support
plaintiff's 1962(b) conspiracy claim as well. See generally Salinas v. United States, 522 U.S.
52, 63-65 (1997).

Defendants also ask us to decline pendent jurisdiction over the various state law claims.

However, since the federal claims remain, we keep in the state claims.



Minute Orde; Form (06/97)

United States District Court, Northern District of Illinois

a)

Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01C 5125 DATE 12/12/2002
CASE Kelly Lait vs. Jerome P. Genova et al.
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

of the motion being presented.}

qd)

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
qd) im Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer brief due.
(4) oO Ruling/Hearingon_ ss setfor_—_—at
(5) Qa Status hearing[held/continued to] [set for/re-set for]on___—sset for at
(6) o Pretrial conference[held/continued to] [set for/re-setfor]on__—sset for at__
(Cp) o Trial{set for/re-set for]on__at
(8) Qo (Bench/Jury trial] [Hearing] held/continued to_____at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 COFRCP41{a)(1) O FRCP41(a)(2).
(0) +o4ff [Other docket entry] Enter Memorandum Opinion and Order. For the above reasons, the motions

to dismiss of the City, and of Garrison and Wilhelm, are denied. Status hearing set for December 31, 2002

at 9:15am.

| | (For further detail see order attached to the original minute order.]

No notices required, advised in open court. .
No notices required. )
a ies

Notices mailed by judge’s staff.

Notified counsel by telephone. pEC 12, fae

Docketing to mail notices.

Mail AO 450 form. LUNI LOMISIA“s'A shea serene?
MMA

Copy to judge/magistrate judge.

DEC 12 2002

souoam 22: tld 2193020 ua

WAH deputy's ees ones
initials Sig gat
Daté/time received in {
fing depay iti

central Clerk's Office



No. 01 C 5125 Page 6

CONCLUSION

For the above reasons, the motions to dismiss of the City, and of Garrison and Wilhelm,

RB. Morea

¢) JAMES B. MORAN
ior Judge, U. S. District Court
Qe ny , 2002.

are denied.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KELLY LAIT, )
)

Plaintiff, )

)

vs. ) No. 01 C 5125

)

JEROME P. GENOVA, both in his individual)
capacity and in his capacity as Mayor of the )
City of Calumet City, Illinois, et al., )
)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Kelly Lait brings this action alleging infringement of his First Amendment
rights under 42 U.S.C. § 1983, conspiracy under 42 U.S.C. § 1985, racketeering under 18
U.S.C. § 1962, and various violations of state law. The City of Calumet City (City) and
defendants Garrison and Wilhelm have filed motions to dismiss the claims against them. For
the following reasons, the motions are denied..

BACKGROUND

The facts of this case are taken from plaintiff's complaint. From January 8, 1998,
through January 10, 2001, plaintiff worked as a garbage collector in Calumet City’s
Department of Public Works. At all relevant times defendant Genova was Mayor of the City,
defendant Wilhelm was chief of staff to Genova, and defendants Garrison and Qualkinbush
were supervisors in the Department of Public Works. In 1999, plaintiff provided an affidavit
in a civil action brought by police officers against Genova. Plaintiff subsequently testified

before a federal grand jury empaneled to assess alleged criminal violations by Genova and his

gS



~

No. 01 C 5125 Page 2

administration.

Plaintiff alleges that he was retaliated against for his adverse testimony. Specifically,
he claims that defendants Wilhelm and Garrison knowingly made false allegations that, while
working his garbage route, plaintiff had kidnapped and held a dog for ransom; that they
harassed him by making him submit to repeated drug tests and conspired to find ways in
which plaintiff could be terminated; and that under orders from Genova and Garrison,
Wilhelm fired plaintiff. Also, he alleges that his termination was not only in retaliation for his
testimony, but also part of a City practice of making human resource decisions based upon an
employee’s speech and association, including his or her choice to affiliate politically with the
mayoral administration or not.

DISCUSSION

In deciding a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, we accept as
true all well-pleaded factual allegations, drawing all reasonable inferences in a non-movant’s
favor. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7" Cir. 1992). A claim survives
if relief could be granted under any set of facts that could be proved consistent with the
allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) citing Conley y. Gibson, 355
U.S. 41, 45-46 (1957). While a claim does not need to specify the correct legal theory to
withstand a Rule 12(b)(6) motion, it must allege all elements of a cause of action necessary for
recovery. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S.
1047 (1986).

Plaintiff brings his § 1983 claims against all defendants, alleging violations of his First

Amendment rights to free speech and free association. In order to state a claim against the