who has fifteen or more employees . . . and any agent of such a person[].” 42 U.S.C. §2000e(b).
Hence, I am dismissing the retaliation claims against Ms. Mercer and Mr. Jackson but not against
CHA, because Ms. Kudlinski has pled facts sufficient to satisfy all three elements of her

retaliatory discharge claim.

Deprivation of Due Process and Breach of Contract (Counts II and IID)

Defendants also argue that the remaining counts must be dismissed because Ms.
Kudlinski did not have a protectible property interest in her employment with the CHA. Ms.
Kudlinski maintains that CHA’s employment handbook creates enforceable contract rights and
thus a protectible property interest. Illinois recognizes that employment handbooks can create
such rights “if the traditional requirements for contract formation are present.” Duldulao v. St.
Mary of Nazareth Hospital Center, 505 N.E.2d 314, 318 (Ill. 1987). Case law indicates that if an
employee handbook provides for disciplinary procedures prior to termination of an employee and
the language is promissory or mandatory, then a contract right exists. See id. On the other hand,
if such language is discretionary, then a contract right does not exist and the employee is
considered at-will. See Peters v. Shell Oil Co., 77 F.3d 184, 188 (7" Cir. 1996). CHA’s
employee manual provides for a progressive disciplinary process that requires a pre-disciplinary
meeting if a supervisor recommends suspension or termination. This meeting provides the
employee with an opportunity to respond to the charges before final action is taken. It is
undisputed that Ms. Kudlinski was not provided a pre-disciplinary meeting prior to her
termination. Defendants, however, argue that the manual language is discretionary and provides

“jump the queue” language allowing the progressive disciplinary process to be bypassed when


Standard

Dismissal of a complaint is appropriate when “it appears beyond doubt that the plaintiff is
unable to prove any set of facts which would entitle the plaintiff to relief.” Andrews v.
Consolidated Rail Corp., 831 F.2d 678, 682 (7" Cir. 1987) (citation omitted). For the purpose of
this motion, I must construe the complaint in the light most favorable to the plaintiffs and accept

all facts alleged by plaintiffs as true. See Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).

Retaliatory Discharge (Count I)

To allege a case of retaliation in violation of Title VII of the Civil Rights Act of 1964,
Ms. Kudlinski must show that (1) she challenged an unlawful employment practice; (2) she
suffered an adverse employment action by CHA; and (3) there is a causal link between the
protected expression and adverse action. See Cullom v. Brown, 208 F.3d 1035 (7" Cir. 2000).
At issue is the third element, namely whether “the protected activity and the adverse action were
not wholly unrelated.” Hunt-Golliday v. Metropolitan Water Reclamation District of Greater
Chicago, 104 F.3d 1004, 1014 (7" Cir. 1997) (citation omitted). Defendants argue that because
approximately two months passed between the two events, plaintiff has cannot establish this
element. While there is no specific amount of time which serves as a benchmark for defeating
causation in retaliation cases, two months is not so large a time span to render Ms. Kudlinski’s
allegations insufficient to defeat a motion to dismiss.

Defendants rightly argue that Ms. Kudlinski inappropriately brings her retaliation claims
against Ms. Mercer and Mr. Jackson as individuals, since Title VII limits liability to an

“employer,” who is defined by Title VIJ as “a person engaged in an industry affecting commerce


the offending conduct is extreme. After reading the manual language carefully, I find that the
language is mandatory, for it provides that “[i]n each instance of employee failure, it is
imperative that the manager/supervisor consistently apply correct disciplinary measures as
outlined in the progressive disciplinary process” and that “the Human Resources Department
shall conduct a pre-disciplinary meeting to provide the employee an opportunity to respond to the
charges before any final action is taken.” Chicago Housing Authority Personnel Manual, 64-65
(1996) (emphasis added). Additionally, I do not find any “jump the queue” language in the
manual; rather, the manual provides for an acceleration of the progressive disciplinary process
for gross misconduct, not a complete bypassing of it. I interpret this acceleration language as
allowing CHA to skip initial steps in the progressive disciplinary process such as oral and written
reprimand, but no language in the manual allows CHA to skip the pre-disciplinary meeting prior
to suspension or termination. Thus, I find that Ms. Kudlinski may have a protectible property
interest in her employment with CHA and deny defendants’ motion to dismiss with respect to her
deprivation of property interest without due process and breach of contract claims.

With regard to Ms. Kudlinski’s deprivation of liberty interest without due process claim,
the facts she alleges are not sufficient to defeat defendants’ motion to dismiss. According to the
facts as Ms. Kudlinski alleges them, Ms. Mercer falsely accused her of criminal conduct to the
CHA Inspector General, which then resulted in an investigation by the Cook County State’s
Attorneys Office. It was during this investigation that other individuals as witnesses were told of
these allegations against Ms. Kudlinski. It appears that the State’s Attorneys Office made the
information public, not defendants, and in order to prevail on this claim, Ms. Kudlinski must

show that defendants actively participated in the dissemination of the information to the public.


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge James B. Zagel Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 952 DATE 6/11/2002
CASE PAULA KUDLINSKI vs. CHICAGO HOUSING AUTHORITY, ET AL
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaimitY, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
() Oo Filed motion of [ use listing in “Motion” box above.]
(2) ia Brief in support of motion due
3) ia] Answer brief to motion due_ . Reply to answer brief due
(4) o Ruling/Hearing on set for at
(5) o 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 .
(7) o Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(m) O General Rule 21 CFRCP41(a)(1) OO FRCP41(a}(2).
qo) oi (Other docket entry] Motion (5-2) for hearing is denied. Motion (7-1) for summary judgment
is denied. Motion (7-2) to dismiss is granted/denied in part.
(1) @ (For further detail see order attached to the original minute order.]

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone

v Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
pw deputy’s
initials

No notices required, advised in open court.

Document
Number
uinber of notices

JUN 1 2 2082

Date/time received in
central Clerk's Office _”

date dgckoted

docking deputy initias

daze mailed notice

naling deputy initials



See Mitchell v. Glover, 996 F.2d 164, 167 (7" Cir. 1993). Defendants’ role in relaying this
information to the State’s Attorneys Office does not alone constitute such participation, since
CHA has the right to investigate suspicions of criminal conduct by its employees. Without
additional facts indicating that defendants played any other role in the dissemination of this
information to the witnesses questioned by the State’s Attorneys Office, I must dismiss this

claim.

Defendants’ motion to dismiss is granted with respect to the retaliatory discharge claim
against Ms. Mercer and Mr. Jackson only and the deprivation of liberty interest without due
process claim. Defendants’ motion to dismiss is denied with respect to the retaliatory discharge
claim against CHA, the deprivation of property interest without due process claim, and the
breach of contract claim. Because federal law claims remain in this case, I am also denying
defendants’ motion to dismiss Ms. Kudlinski’s indemnification claims.

ENTER:

\eu GB Jeg

ames B. Zagel
United/States Distt ad udge

DATE: _SUN 11 2002


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS vera) METRY
EASTERN DIVISION Boon Kr

SUN 4 2 2002

PAULA KUDLINSKI,

Plaintiff,
v. No. 02 C 0952
Judge James B. Zagel
CHICAGO HOUSING AUTHORITY,
PHILLIP JACKSON, A. TISH MERCER,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Paula Kudlinski, has brought a four count complaint against defendants Chicago
Housing Authority (“CHA”), Phillip Jackson, and A. Tish Mercer. Her complaint alleges (1)
retaliation; (2) deprivation of property and liberty interests without due process; (3) breach of
contract; and (4) indemnification pursuant to 745 ILCS 10/9-102. Defendants have filed a
motion to dismiss/alternative motion for summary judgment on all counts. Since I do not find
that there is sufficient factual information in these pleadings to convert this motion to dismiss

into a summary judgment motion, I decline to do so at this time.

Background

Ms. Kudlinski, a white female, was employed by CHA as a manager of Employee
Benefits in August 1999. “Employee A,” a white male, was Ms. Kudlinski’s supervisor until Ms.
Mercer, a black female, was hired and subsequently replaced “Employee A” as Ms. Kudlinski’s
supervisor. Ms. Kudlinski alleges that during her employment at CHA, Ms. Mercer was openly

hostile to “Employee A” and made racial comments about him such as “people only like him


because he is white.” Allegedly, Ms. Kudlinski expressed to Ms. Mercer that such comments
were inappropriate and should not be repeated. In March of 2000, Ms. Mercer allegedly showed
Ms. Kudlinski a drug test report indicating that “Employee A” has tested positive for drugs and
told Ms. Kudlinski that she “couldn’t wait to show the report to a member of the CHA Board.”
Ms. Kudlinski contends that she saw that Ms. Mercer had altered the document to falsely indicate
that “Employee A” had tested positive for drugs and alleges that after telling “Employee A”
about the allegedly false report, “Employee A” obtained a copy of the report directly from the
drug testing center, and the report indicated that he had tested negative for drugs. Shortly after
this incident, “Employee A” tendered his resignation and left CHA in April 2000. Ms. Kudlinski
alleges that she found out about “Employee A’s” resignation from Ms. Mercer, who informed her
that “your confidante is gone and you have no white friends at the CHA.” On May 11, 2000, Ms.
Kudlinski attended a meeting unrelated to her employment at which she was told that she had
been discharged (neither Ms. Kudlinski nor defendants indicate the given reason for the
termination) and that because she was an at-will employee, no reason was required to terminate
her. Ms. Kudlinski alleges that she was never informed of the decision to terminate her prior to
this date and that following her termination, Ms. Mercer wrote a false and defamatory complaint
to the CHA Inspector General accusing her of criminal activity which resulted in an investi gation
by the Cook County State’s Attorneys Office. During the investigation, witnesses were
interviewed and told of the allegations against Ms. Kudlinski. After the investigation was

completed, no criminal charges were filed against Ms. Kudlinski.