IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL CONWAY, )

)

Plaintiff, )

) No. 20 C 4966

v. )

) Judge John Z. Lee

CITY OF CHICAGO, )

COSTAS SIMOS, and )

ERIN O’DONNELL-RUSSELL, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

While working as an airport operations supervisor at Chicago’s Midway 

International Airport (“Midway”) in 2018, Michael Conway reported a scheme by 

Midway’s two highest-ranking officials, Costas Simos and Erin O’Donnell-Russell, to 

two outside agencies. According to Conway, Simos and O’Donnell ordered staff to 

falsify runway conditions for the benefit of a private airline. Conway’s statements 

led to multiple investigations that eventually confirmed the existence of the scheme. 

Here, Conway alleges that Simos and O’Donnell subjected him to pervasive 

and continuous retaliation for his reports to the agencies, asserting claims against

them and the City of Chicago (“the City”) (collectively, “Defendants”) under 42 U.S.C. 

§ 1983 and the First Amendment (Count I), as well as the Illinois Whistleblower Act 

(“IWA”) (Count II). Defendants move to dismiss the claims under Federal Rule of 

Civil Procedure 12(b)(6). For the reasons given below, the City and O’Donnell’s 

motion is granted in part and denied in part, and Simos’s motion is denied.

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I. Background1

Conway has worked for the City of Chicago Department of Aviation (“the 

Department”), since 1995. Among other responsibilities, the Department is in charge 

of operating Midway. Compl. ¶¶ 12, 18, ECF No. 1. 

Since 1998, Conway has served as an Airport Operations Supervisor II (“AOS 

II”). As an AOS II, he monitored airfield and airside facilities to identify operational 

safety issues and ensured compliance with general safety and security standards 

pursuant to regulations administered by the Federal Aviation Administration

(“FAA”). Id. ¶¶ 12, 18–19. To do so, Conway inspected runways, taxiways, ramps, 

and other such areas to ensure that they are free of safety hazards and in good 

physical condition; issued “Notices to Airman (NOTAMS)” to provide current 

information on aviation and airfield conditions, including the opening and closing of 

runways to FAA air traffic control; checked weather service reports, surface

conditions, and temperatures; and advised pertinent city and aviation personnel of 

weather conditions. Id. ¶ 20.

Simos served as the Department’s Deputy Commissioner until his retirement 

in April 2020, making him the “No. 2 official at Midway Airport.” Id. ¶ 15. Above

Simos was O’Donnell, Midway’s Managing Deputy Commissioner; she retired in July 

2019. Id. ¶ 16. 

1 The following well-pleaded factual allegations are accepted as true for purposes of the 

motion to dismiss.

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The incidents at issue in this action began on February 17, 2018. Between 

10:00 and 11:30 a.m. that day, Conway observed Southwest Airlines (“Southwest”)

personnel heavily de-icing a taxiway at various gate positions. Id. ¶ 24. 

As the duty supervisor, Conway received a call from Simos inquiring about the 

condition of the runways (Runway 22L was in use at the time). Id. ¶¶ 24–25. Conway 

advised Simos that the airfield was “Clear/Wet.” Id. ¶ 25. Simos told Conway to 

change the condition on the FAA’s Digital NOTAM system to “Clear/Dry.” Id. ¶ 26. 

Conway explained that an AOS I had observed the airfield and determined it to be

wet just thirty minutes earlier, but Simos said he “didn’t care” and demanded that 

Conway declare the airfield dry. Id. ¶¶ 26–27. Simos indicated that the directive 

had come from O’Donnell and emphasized that “Southwest needs our help!” In fact,

according to Conway, the directive from O’Donnell came at the behest of Southwest, 

which had a financial incentive to circumvent regulations that prohibited heavily 

laden aircraft from landing in wet conditions. Id. ¶ 2. 

After hanging up with Simos, Conway asked an AOS I to recheck the runway 

conditions, but they remained Clear/Wet. Id. ¶ 29. Conway then drove to the airfield 

to inspect the surface conditions himself; he conducted a series of vehicle action 

braking tests, which confirmed that the entire airfield was wet, and even very slick

from the de-icing compound in some locations. Id. ¶ 30. 

When Conway returned inside, Simos called again to ask whether Conway had 

changed the condition on the NOTAM system. Id. ¶ 32. Uncertain of how to proceed, 

Conway asked two managers, including his supervising manager, Dave Kaufman,

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about what Simos was demanding him to do. Id. ¶¶ 33–34. Both managers advised 

Conway to obey his superior’s directive or risk being terminated for insubordination. 

Id. ¶¶ 33–34. Reluctantly yielding to the pressure, Conway ultimately reported the 

field condition as Clear/Dry. Id. ¶¶ 35–36.

Later in the week, Conway asked Simos about the events of February 17, which 

had become the subject of much discussion among Conway’s managers. Id. ¶¶ 37, 40. 

Not in the mood to answer questions, Simos replied that he was “the fucking deputy 

commissioner” and that Conway would “do what [he was] told and not ask fucking 

questions[.]” Id. ¶ 40. After Kaufman stepped in to defuse the situation, Conway 

approached Simos again to express his concern that an aircraft could have slid off the 

runway and to say that he would never again comply with such a directive, which he 

found contrary to FAA regulations. Id. ¶¶ 41–42. Simos said he understood and that 

he would not put Conway in that situation again. Id. ¶ 43. 

Nonetheless, Simos continued into early March 2018 to order other operations 

personnel to falsify runway conditions by changing them from Clear/Wet to Clear/Dry

on the NOTAM system. Id. ¶ 44. During this time, Conway and his colleagues

received numerous queries from Air Traffic Control personnel about whether the 

airfield was wet or dry. Id. ¶ 45. 

In mid-March 2018, for instance, Conway fielded a call from Midway’s Air 

Traffic Control tower informing him that Southwest pilots had been calling to report

the airfield as Clear/Dry, even though the caller and others in the tower, as well as 

other operations personnel, could see that it was still wet. Given these circumstances, 

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Conway suggested to Kaufman and another manager that Conway take Southwest’s 

chief pilot out on the airfield and show him the conditions that his pilots were 

insisting be reported as Clear/Dry, to which they agreed. Id. ¶ 45. 

Shortly thereafter, Conway took Southwest’s Assistant Chief Pilot, Colin 

Scantlebury, out onto the airfield. Id. ¶ 48. Scantlebury said that Conway was “300% 

correct” that the airfield was wet with de-icing compound and that he would raise the 

issue with O’Donnell and Southwest’s Chief Pilot. Id. ¶ 49. 

On March 20, 2018, Kaufman called Conway into his office to give him a verbal 

reprimand in front of another AOS II for “Conduct Unbecoming a City Employee.” 

Specifically, Kaufman accused Conway of “making derogatory statements to a 

Southwest pilot” about the performance of his coworkers. Id. ¶ 50. Conway pushed 

back on this accusation, but to no avail. Id. ¶ 51. 

Later in the day, however, Kaufman confessed to Conway that Conway had 

done nothing to warrant a reprimand, adding that Simos was the one who had 

ordered Kaufman to punish Conway for raising the issue with a pilot. Id. ¶ 52. 

Kaufman said that his hands were tied and encouraged Conway to accept the verbal 

reprimand, which would be removed from Conway’s file in eighteen months, and let 

Simos settle down. Id. ¶ 53. 

A few hours later, Kaufman called Conway into his office again and ordered 

him not to discuss the subject with any of his coworkers, explaining that it was bad 

for morale and that Simos had instructed him to pass along this order, too. Id. ¶ 54. 

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Another manager in the room warned Conway that the issue was “much bigger than 

[he] could ever imagine.” Id. ¶ 55. 

This practice of falsifying NOTAM reports continued. And Simos proceeded to 

demand that operations personnel falsify airfield conditions throughout the spring 

and summer of 2018. Id. ¶ 57. 

In July 2018, Simos and O’Donnell began excluding Conway from meetings, 

trainings, and most other activities in which he used to participate as part of his job 

responsibilities. Id. ¶ 59. Only when Simos was on vacation did Kaufman permit 

Conway to participate in his essential activities. Id. ¶ 60. 

On September 4, 2018, the day Simos was due to return from a vacation, 

Conway inadvertently crossed a runway that was not in use. Id. ¶ 61. As a result, 

Kaufman made him retake his written and driving tests to retain his airfield badge, 

which Conway did obtaining perfect scores. Id. ¶ 62. 

After Conway returned from three weeks of leave at the request of his doctor, 

Kaufman informed him that, under a supposed “new policy,” Conway might also be 

subject to suspension for crossing the runway. This was an unprecedented measure 

for such a minor infraction. Id. ¶¶ 63, 65. Earlier that summer, for instance, another 

employee had crossed an active runway, in front of an aircraft that had just landed, 

and received no punishment. Id. ¶ 64. Nonetheless, Simos and O’Donnell handed 

down a five-day suspension on October 16, 2018, which Conway began to serve on 

November 17. Id. ¶ 65. Around the same time, Conway learned from certain coCase: 1:20-cv-04966 Document #: 60 Filed: 09/16/21 Page 6 of 27 PageID #:285
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workers that Simos had asked them to prepare “denigrating statements” about 

Conway” and grew angry when they expressed reluctance. Id. ¶ 66. 

Soon after Conway returned from medical leave, in September 2018, he spoke 

with the Department’s Personnel Director, Argentene Hrysikos, describing to her the 

troublesome conduct he had been observing from Simos and O’Donnell, as well as the 

retaliation he has been suffering at their hands. Id. ¶ 68. Hrysikos instructed him 

to report his concerns to “whatever agency [was] responsible for airport safety” and 

the City’s Office of the Inspector General (“OIG”). Id. ¶ 69. Conway contacted both 

agencies, and each opened an investigation into his allegations. Id. ¶¶ 70–71. 

The FAA issued a formal report on November 24, 2019, confirming much of 

Conway’s story, including that airport management had “likely” directed staff to 

falsify airfield conditions on February 17, 2018, and that many employees felt 

compelled to comply with the orders for fear of retaliation. Id. ¶¶ 119–32. 

The OIG published its own report on July 16, 2020, making similar findings. 

Id. ¶¶ 113–18. In addition, the OIG called out Simos by title for “order[ing] a change 

to the reported airfield conditions . . . from ‘wet’ to ‘dry,’ following a call from a private 

airline requesting that the airfield conditions be changed due to financial motivation.” 

Id. ¶ 114. For this, the OIG recommended that Simos be terminated, which prompted

his resignation. Id. ¶¶ 117–118.

In October 2018, Midway launched an investigation to identify the person who 

had reported the misdeeds to the FAA and the OIG, and the City and its attorneys 

planned to interrogate employees one-by-one. Id. ¶ 73. Conway was the first one to 

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be interviewed, and he readily acknowledged that he was the one who had blown the 

whistle. Id. ¶ 74. 

During the next two months, Simos instructed staff to spy on Conway during 

his airfield inspections. Id. ¶ 75. Simos and O’Donnell also asked Kaufman and other

operations supervisors to report every conversation they had with Conway. Id. ¶ 76. 

And Simos took every opportunity to degrade and humiliate Conway, including by 

yelling at him in front of his peers. Id. ¶ 78. One of the managers told Conway “the 

plan” was to make him look crazy and incompetent. Id. ¶ 81. 

In December 2018, O’Donnell falsely accused Conway of being a liar in front of 

Kaufman and another manger and told him that she was having his “red stripe” 

removed from his badge. Id. ¶¶ 82–83. This meant that Conway could no longer 

drive on runways or taxiways without an escort. Id. ¶ 83. To Conway’s knowledge, 

this was the first time in his twenty-three years of service at Midway that an AOS 

had been stripped of his or her red stripe. Id. ¶ 84. 

Around the same time, O’Donnell began to adjust employees’ schedules so that 

Conway was never the senior person on duty, instructing Kaufman and another 

manager to “make sure this happens.” Id. ¶ 85. Shortly after that, Conway was

forbidden from working in the office and relegated to trivial tasks like checking fuel 

trucks and watching the terminal ramp. Id. ¶ 86.

Over the following months, O’Donnell gradually stripped Conway of all of his 

duties except the most menial among them, such as counting cars in the parking lot

and checking bathrooms for toilet paper and paper towels. Id. ¶ 88. On January 1, 

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2019, a manger informed Conway that his new assignment, effective immediately, 

was to check parking lots and garages. Id. ¶ 89. He was soon removed from the staff’s 

overtime rotation as well, supposedly because he lacked a red stripe on his badge, 

even though other personnel without a red strip received overtime. Id. ¶ 91. 

In February 2019, O’Donnell wrote up a false disciplinary notice claiming that 

Conway had improperly driven on the airfield. Id. ¶¶ 94–95. Conway received 

another trumped-up disciplinary notice on March 15, and again July 19, 2019, each 

concerning a report of an airfield inspection he had performed on December 4, 2018, 

in which he had concluded—properly, in his view—that the airfield was wet. Id. ¶¶ 

97, 100. Conway ultimately received a fifteen-day suspension for the incident, which 

he served from July 30 to August 13, 2019. Id. ¶ 101. 

Conway continued to experience retaliation throughout 2019 and into 2020. 

Id. ¶ 102. To name a few such instances:

• His airfield privileges were further diminished in June 2019, id.; 

• O’Donnell excluded him from a co-worker’s retirement party on July 

30, 2019, id.; 

• Simos forbade Kaufman from having any more contact with Conway

at a meeting on September 11, 2019, id. ¶ 103; 

• On September 22, 2019, he learned that Simos had unilaterally (and 

without notice) reversed certain routine raises to which Conway was 

entitled, id. ¶¶ 104–05; 

• His application for a promotion to Assistant Chief Operations 

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Supervisor was inexplicably rejected in November 2019, id. ¶ 109. 

• He was assessed a “special” bonus tax of 45% on the reimbursement 

of his missing raises in January 2020, id. ¶ 107;

• As late as March 13, 2020, he continued to be tailed at Simos’s behest

while performing parking lot “inspections,” id. ¶ 111. 

Conway filed this action on August 24, 2020, bringing two counts. Count I 

alleges retaliation in violation of the First Amendment, as incorporated under the 

Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. Id. ¶¶ 133–51. Count II 

alleges violations of the IWA, 740 Ill. Comp. Stat. 174/5 et seq. Id. ¶¶ 152–62.

Defendants have moved to dismiss the complaint under Rule 12(b)(6). See 

Defs. City and O’Donnell’s Mot. Dismiss, ECF No. 30; Def. Simos’s Mot. Dismiss, ECF 

No. 32. Because there is substantial overlap between the motions, the Court 

addresses them in tandem.

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a 

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for 

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard 

“is not akin to a probability requirement, but it asks for more than a sheer possibility 

that a defendant has acted unlawfully.” Id. (cleaned up). 

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When considering a motion to dismiss, courts accept “all well-pleaded factual 

allegations as true and view them in the light most favorable to the plaintiff.” 

Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). At the same time, 

courts are “not bound to accept as true a legal conclusion couched as a factual 

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Accordingly, “[t]hreadbare 

recitals of the elements of a cause of action, supported by mere conclusory statements, 

do not suffice” to state a claim. Iqbal, 556 U.S. at 678. 

III. Analysis

Defendants move to dismiss the complaint on various grounds. The Court will 

address each count, and each argument, in turn. 

A. First Amendment Retaliation (Count I)

As to Count I, Defendants initially contend that Conway fails to allege all the 

elements of a First Amendment retaliation claim. The City also argues that Conway 

fails to adequately allege municipal liability under § 1983.

1. Whether Conway has stated a First Amendment claim

To prevail on a claim for retaliation in violation of the First Amendment, a 

public employee must show that: (1) his speech was constitutionally protected, (2) he 

suffered a deprivation likely to deter speech, and (3) his speech was at least a 

motivating factor in the employer’s action. Swetlik v. Crawford, 738 F.3d 818, 825 

(7th Cir. 2013). Defendants challenge all three elements.

 

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a) Constitutionally protected speech

“For a public employee’s speech to be protected under the First Amendment, 

the employee must show that (1) he made the speech as a private citizen, (2) the 

speech addressed a matter of public concern, and (3) his interest in expressing the 

speech was not outweighed by the state’s interests as an employer in promoting 

effective and efficient public service.” Id. (cleaned up). Here, Defendants challenge 

Conway’s ability to satisfy the first of these sub-elements. In Conway’s view, he spoke 

as a private citizen both by initially refusing to Simos’s February 17, 2018, order to 

falsify the conditions of the airfield, and by reporting the ongoing falsification to the 

FAA and the OIG several months later. See Compl. ¶ 137.

The Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), 

“supplies the test for distinguishing employee and citizen speech.” Lett v. City of Chi., 

946 F.3d 398, 400 (7th Cir. 2020). Recognizing that those who enter government 

service “by necessity must accept certain limitations on his or her freedom,” Garcetti

held “that when public employees make statements pursuant to their official duties, 

the employees are not speaking as citizens for First Amendment purposes, and the 

Constitution does not insulate their communications from employer discipline.” Id. 

at 418, 421. Thus, the standard articulated by Garcetti “is whether the employee 

makes the relevant speech ‘pursuant to [his] official duties.’” Lett, 946 F.3d at 400 

(quoting Garcetti, 547 U.S. at 421). An employee’s official duties “include both formal 

job requirements and the employer’s real rules and expectations.” Davis v. City of

Chi., 889 F.3d 842, 845 (7th Cir. 2018).

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As the Supreme Court later clarified in Lane v. Franks, however, “the mere 

fact that a citizen’s speech concerns information acquired by virtue of his public 

employment does not transform that speech into employee—rather than citizen—

speech.” 573 U.S. 228, 239 (2014); see also Chrzanowski v. Bianchi, 725 F.3d 734, 738 

(7th Cir. 2013) (“[S]peech does not owe its existence to a public employee’s 

professional responsibilities within the meaning of Garcetti simply because public 

employment provides a factual predicate for the expressive activity[.]” (cleaned up)).

Thus, “[t]he critical question under Garcetti is whether the speech at issue is itself 

ordinarily within the scope of an employee’s duties, not whether it merely concerns 

those duties.” Lane, 573 U.S. at 240. 

Defendants analogize this case to Davis and Lett, in each of which the Seventh 

Circuit addressed an employee’s refusal to revise a report as directed by a superior. 

See Davis, 889 F.3d at 844–45 (Davis “refused to change his findings” of police 

misconduct); Lett, 946 F.3d at 401 (Lett “refus[ed] to alter an investigative report that 

he was assigned to prepare”). In these cases, the Seventh Circuit held that the 

employees were acting within the scope of their employment and not as private 

citizens because, as part of their employment, they were “responsible for revising 

[their] reports at the direction of [their] superiors.” Davis, 889 F.3d at 845; see also 

Lett, 946 F.3d at 401. By contrast, Conway alleges that the FAA places the 

responsibility of reporting airfield conditions on operations specialists like himself, 

rather than supervisors, like Simos. See Compl. ¶ 130. Consequently, he argues, his 

initial refusal to obey Simos’s directive to enter false information into NOTAM was 

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outside the scope of his duties. While discovery may not bear this out, at the pleading 

stage Conway is entitled to the benefit of all reasonable inferences. 

In addition, it is plain that Conway’s subsequent reports to the FAA and the 

OIG constituted speech as a private citizen. Of course, “if a public employee reports 

official misconduct in the manner directed by official policy, to a supervisor, or to an 

external body with formal oversight responsibility, then the employee speaks 

pursuant to her official duties and her speech is unprotected by the First 

Amendment.” Spalding v. City of Chi., 186 F. Supp. 3d 884, 904 (N.D. Ill. 2016). “By 

contrast, if an employee . . . reports misconduct outside established channels or in 

violation of official policy, she speaks as a private citizen and her speech is 

constitutionally protected.” Id. at 904–05 (citing Chrzanowski, 725 F.3d at 739–40; 

Chaklos v. Stevens, 560 F.3d 705, 709–12 (7th Cir. 2009); Houskins v. Sheahan, 549 

F.3d 480, 491 (7th Cir. 2008)); see also Lane, 573 U.S. at 238–39.

Like the plaintiffs in Spalding, Conway’s alleged reports of his superiors’ 

misconduct—made to “outside,” investigative agencies, “on [his] own initiative,” and 

presumably “on [his] own time”—occurred outside of established channels. See 186 

F. Supp. 3d at 905. Indeed, the complaint makes clear that such whistle-blowing was

not “ordinarily within the scope of [his] duties,” but rather “merely concern[ed] those 

duties.” See Lane, 573 U.S. at 240. In other words, his reports to these agencies were 

“not generated in the normal course of [his] duties,” Houskins, 549 F.3d at 491, nor

among “the tasks he was paid to perform,” Garcetti, 547 U.S. at 422. 

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For their part, Defendants note that it was Midway Personnel Director, 

Hrysikos, who allegedly suggested that Conway report his concerns to the OIG and

“whatever agency is responsible for airport safety.” Compl. ¶ 69. But, this alone is 

insufficient to establish as a matter of law that Conway was following an official 

policy or mechanism by which to raise his complaints. In fact, as alleged in the 

complaint, Hrysikos was uncertain as to which particular agency could even address 

this matter. Again, at this nascent stage, this is sufficient to allege that there was 

no official policy or channel by which Conway could raise his concerns. 

Defendants’ remaining cases are similarly unpersuasive. In Milsap v. City of 

Chicago, the speech was unprotected because “the OIG was already acting as a formal 

oversight body,” and “already investigating the City department,” when the plaintiff 

made his report to it. No. 16 C 4202, 2018 WL 3361889, at *4 (N.D. Ill. July 10, 2018). 

Conway, however, alleges no such formal oversight relationship, whether as to the 

OIG or the FAA. And he asserts that neither agency knew of the misconduct before 

his reports. As for Kubiak v. City of Chicago, the problem there was that the 

employee’s speech “was directed to her supervisor, the director of her office, and the 

[internal affairs division].” 810 F.3d 476, 482 (7th Cir. 2016). By contrast, Conway 

alleges that he had “to go outside” such internal channels in order to pursue his 

concerns with Midway’s highest-ranking officials. See Spalding, 186 F. Supp. 3d at 

906 (distinguishing Kubiak). 

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Accordingly, the Court concludes that the complaint adequately alleges that 

Conway engaged in protected private speech when he reported the alleged scheme to 

the OIG and the FAA. 

b) Deprivation likely to deter speech

To state a First Amendment retaliation claim, Conway also must allege that 

he suffered a deprivation likely to deter speech. To satisfy this element, “the action 

of which the employee is complaining” need only “be sufficiently ‘adverse’ to deter the 

exercise of [First Amendment] rights.” Power v. Summers, 226 F.3d 815, 820–21 (7th 

Cir. 2000). “Any deprivation under color of law that is likely to deter the exercise of 

free speech . . . is actionable” under this standard, “even something as trivial as 

making fun of an employee for bringing a birthday cake to the office to celebrate 

another employee’s birthday.” Id. at 820; see also Smith v. Fruin, 28 F.3d 646, 649 

n.3 (7th Cir. 1994) (“[E]ven minor forms of retaliation can support a First Amendment 

claim, for they may have just as much of a chilling effect on speech as more drastic 

measures.”). 

The complaint satisfies this low bar. First, Conway alleges that he has been

stripped of nearly all essential responsibilities for the position he has held for over 

twenty years and relegated to such minor tasks as inspecting parked cars. Cf. Spiegla 

v. Hull, 371 F.3d 928, 941 (7th Cir. 2004) (noting that a “transfer to a . . . less skilled 

post” can suffice to deter free speech); Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 

2002) (stating that “significantly diminished material responsibilities” satisfy even 

the more demanding materiality standard of Title VII). Furthermore, according to 

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Conway, O’Donnell and Simos subjected him to a campaign of harassment and 

ostracization. Cf. Pieczynski v. Duffy, 875 F.2d 1331, 1333 (7th Cir. 1989) (holding

that “a campaign of petty harassments . . . violates the First Amendment”). 

Moreover, Conway received repeated discipline for baseless charges. Cf. Glass v. 

Dachel, 2 F.3d 733, 741 (7th Cir. 1993) (noting that “a reprimand letter” can “rise to 

the level of constitutional significance”). He also was denied routine raises and taxed 

excessively once they were reimbursed. Cf. Powers, 226 F.3d at 821 (reasoning that 

the denial of “a catch-up raise” is a sufficient deprivation). Such deprivations are 

most than sufficient, and Simos’s views to the contrary are meritless.2

c) Motivating factor 

Finally, Conway must allege that his speech was at least a motivating factor 

in the foregoing actions, meaning that the allegations must support “a causal link” 

(but not necessarily a but-for link) between the two. See Spiegla, 371 F.3d at 940–

42. Such a link may be established by direct or circumstantial evidence, including 

“suspicious timing.” Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012); cf.

Bernero v. Vill. of River Grove, No. 17 C 5297, 2018 WL 3093337, at *5 (N.D. Ill. June 

2 On that note, the Court rejects Simos’s argument that Conway has not shown him to 

have been personally involved in the alleged retaliation. As detailed above, the complaint 

easily satisfies this “prerequisite for individual liability in a § 1983 action.” See Gossmeyer

v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997). Incidentally, the Court also denies Simos’s 

request for qualified immunity on Count I at this time. Qualified immunity “is an affirmative 

defense,” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982), and “a plaintiff is not required to 

plead facts in the complaint to anticipate and defeat affirmative defenses,” Independent Trust 

Corp. v. Stewart Info Services Corp., 665 F.3d 930, 935 (7th Cir. 2012). In any event, taking 

Conway’s allegations to be true, the complaint establishes that Simos’s alleged retaliatory 

conduct violated “clearly established” First Amendment rights “of which a reasonable person 

would have known.” See Harlow, 457 U.S. at 818. 

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22, 2018) (noting that district courts “have looked to [Kidwell] for guidance at the 

pleading stage”).

The complaint satisfies this requirement as well. For one thing, Conway 

alleges that Simos explicitly rebuked him for initially defying Simos’s February 17, 

2018, order to falsify the runway conditions, including by fuming at him, “What is 

your fucking problem with Clear and Dry?!” Compl. ¶ 38. For another, Conway 

alleges that Simos and O’Donnell began to retaliate against him just a few months 

later and ramped up their retaliation as soon as Conway confessed to blowing the 

whistle on them to the FAA and the OIG. See id. ¶¶ 59, 73–86; cf. Kidwell, 679 F.3d 

at 966 (“[F]or a suspicious-timing argument alone to give rise to an inference of 

causation, the plaintiff must demonstrate that an adverse employment action follows 

close on the heels of protected expression, and . . . the person who decided to impose 

the adverse action knew of the protected conduct.” (cleaned up)). Thus, the complaint 

more than plausibly draws the requisite link between Conway’s protected speech and 

the adversity he experienced. 

Simos’s counterarguments are unpersuasive. Although he insists that Conway 

did not engage in any protected speech until his reports to the FAA and the OIG, the 

Court has already rejected this view above. And even assuming for the sake of 

argument that Simos were correct, he fails to explain why the alleged retaliation 

occurring after Conway reported his misconduct to these outside agencies was not 

motivated by that protected speech. To this point, Simos misreads the complaint in 

contending that two months passed between Conway’s admission that he blew the 

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whistle and the onset (or continuation) of the retaliatory conduct. At any rate, even 

a two-month interval would not be enough to defeat a plausible inference of causation

at the pleading stage, where all inferences are drawn in Conway’s favor. See Bernero, 

2018 WL3093337 at *5. 

2. Whether Conway Has Adequately Alleged Municipal Liability 

The City next contends that Conway has not sufficiently alleged municipal 

liability under § 1983 and Monell v. Department of Social Services of City of New York,

436 U.S. 658 (1978). To establish municipal liability under Monell, “a plaintiff must 

show the existence of an official policy . . . that . . . is the moving force behind the 

deprivation of constitutional rights.” Teesdale v. City of Chi., 690 F.3d 829, 833–834 

(7th Cir. 2012) (cleaned up). “A plaintiff can establish on official policy through (1) 

an express policy that causes a constitutional deprivation when enforced; (2) a 

widespread practice that is so permanent and well-settled that it constitutes a custom 

or practice; or (3) an allegation that the constitutional injury was caused by a person 

with final policymaking authority.” Id. at 834 (cleaned up). 

Conway proceeds under the second and third theories, positing that Simos and 

O’Donnell each had engaged in a widespread custom of retaliation against him and 

possessed final policymaking authority. The City responds to the first point by 

contending that “three separate and isolated incidents of retaliation does [sic] not 

amount to a ‘widespread practice.’” Def. City & O’Donnell’s Reply Supp. Mot. Dismiss 

at 8, ECF No. 46 (citing Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th 

Cir. 2010) (stating that “there is no clear consensus as to how frequently” conduct 

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must occur to constitute a widespread custom or practice, “except that it must be 

more than one instance, or even three” (cleaned up))). But Conway has alleged “not 

just a few, but dozens of instances” of retaliation by Midway’s two highest-ranking 

officials “occurring constantly over course of several years.” See Mundo v. City of Chi., 

No. 20 C 2562, 2021 WL 3367160, at *4 (N.D. Ill. Aug. 3, 2021) (Lee, J.). Moreover, 

as this Court explained in Mundo, a plaintiff need not identify “even one other 

individual” who has been affected by the alleged custom or practice, White v. City of

Chi., 829 F.3d 837, 844 (7th Cir. 2016), so long as he or she presents a series of bad 

acts from which a trier-of-fact can “infer from them that the policymaking level of 

government was bound to have noticed what was going on,” Jackson v. Marion Cty., 

66 F.3d 151, 152 (7th Cir. 1995). Like the plaintiff in Mundo, Conway satisfies that 

pleading burden here.

As to the latter point, the Seventh Circuit has explained that “[o]fficials with 

final decisionmaking authority are deemed policymakers for Monell purposes.” 

Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 676 (7th Cir. 2009). “Helpful in 

determining whether an official is a final decisionmaker is an inquiry into: (1) 

whether the official is constrained by policies of other officials or legislative bodies; 

(2) whether the official’s decision on the issue in question is subject to meaningful 

review; and (3) whether the policy decision purportedly made by the official is within 

the realm of the official’s grant of authority.” Id. (cleaned up). “Also helpful is an 

examination of not only positive law, including ordinances, rules and regulations, but 

also the relevant customs and practices having the force of law.” Id. (cleaned up). 

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The inquiry “is not whether an official is a policymaker on all matters for the 

municipality, but whether he is a policymaker in a particular area, or on a particular 

issue. Id. (cleaned up).

Here, the complaint illustrates numerous instances in which Simos and 

O’Donnell—Midway’s chief officials—exercised the final say on disciplinary, and even 

policy, matters at the airport. See, e.g., Compl. ¶ 63 (it was “up to Simos to decide” 

whether Conway would be suspended for crossing a runway “under a new policy”); id. 

¶¶ 83–84 (O’Donnell unilaterally removed Conway’s red stripe, a move without 

precedent in his twenty-three years of service); id. ¶ 105 (Simos unilaterally reversed 

Conway’s routine raises, “a personnel action that is almost never taken”). Indeed, 

according to Conway, O’Donnell went so far as to boast “that she was responsible for 

imposing these disagreeable measures on him.” Id. ¶ 86. 

The City retorts that Simos and O’Donnell could not be final decisionmakers 

because “[t]he City Council has expressly delegated authority to the Commissioner of 

Human Resources to promulgate personnel rules.” Def. City & O’Donnell’s Mem. 

Supp. Mot. Dismiss at 11, ECF No. 31 (citing M.C.C. § 2-74-050). By its own terms, 

however, § 2-74-050 delegates that authority only with respect disciplinary measures 

“such as suspension, demotion in rank or grade, or discharge,” not measures like the 

sort at issue here. M.C.C. § 2-74-050(12). Moreover, the ordinance contemplates a 

role “for the department head or designee responsible for making the decision.” Id. 

Thus, the City’s reliance on this ordinance alone, especially when viewed in light of 

Conway’s contrary allegations, is insufficient to warrant a dismissal at this stage. 

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To sum up, Conway has adequately alleged the elements of a First Amendment 

retaliation claim, as well as municipal liability under Monell. Defendants’ motions 

to dismiss Count I are thus denied.

B. Violations of the IWA (Count II)

In Count II, Conway alleges violations of three provisions of the IWA: 740 Ill. 

Comp. Stat. 174/15(b), 174/20, and 174/20.1. See Compl. ¶ 161. Defendants raise 

three arguments for dismissing this claim in full, including two under Illinois’ Local 

Governmental and Governmental Employees Tort Immunity Act (“ITIA”). See 745 

Ill. Comp. Stat. Ann. 10/1-101 et seq. First, they contend that the claim is barred by 

the ITIA’s one-year statute of limitations. Second, they assert that the ITIA grants 

them immunity from the claim. And third, Simos and O’Donnell insist that the IWA 

does not provide for individual liability.

3

3 The City and O’Donnell also argue that Conway has not stated a claim under Section 

20 of the ITIA because, after initially refusing Simos’s order to falsify the runway conditions, 

he “ultimately relented and reported the field condition as Clear/Dry.” Compl. ¶ 36. 

Defendants are correct that, in order to bring a ITIA claim, the employee must have “refus[ed] 

to participate” in an activity that would result in a violation of a State or federal law, rule, or 

regulation. 740 Ill. Comp. Stat. 174/20. But the Court finds that Conway has alleged such a 

refusal, not only insofar as he initially refused Simos’s order, but also insofar as he later 

restated his rejection of such instructions and refused to participate further. Defendants’ 

reliance on Collins is misplaced because the plaintiff there merely “questioned” and 

“complained” about his superiors’ decision. 997 N.E.2d at 828. That is not the case here. 

For his part, Simos posits that Conway has not stated a claim under Section 20.1 

because he has not alleged a retaliatory act that “would be materially adverse to a reasonable 

employee.” See 740 Ill. Comp. Stat. Ann. 174/20.1. This material adversity standard mirrors 

those under federal anti-discrimination statutes like Title VII. Harris v. City of Chi., No. 19 

C 5878, 2020 WL 4815907 (N.D. Ill. Aug. 18, 2020). And Title VII’s material adversity 

standard is satisfied by “significantly diminished material responsibilities.” Traylor, 295 

F.3d at 788. Because Conway has alleged that Simos significantly diminished his essential 

responsibilities, he has stated materially adverse action under Section 20.1.

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1. Whether Count II is Time-Barred

Defendants submit that Count II is time-barred. Section 8-101(a) of the ITIA 

provides that no civil action “may be commenced in any court against a local entity 

or any of its employees for any injury unless it is commenced within one year from 

the date that the injury was received or the cause of action accrued.” 745 Ill. Comp. 

Stat. 10/8-101(a). Because the statute of limitations is an affirmative defense, 

however, it forms a basis for dismissal under Rule 12(b)(6) only when the complaint 

affirmatively “sets out all the elements” of the defense. Indep. Tr. Corp., 665 F.3d at 

935. 

Conway does not dispute that Section 8-101(a) governs the timeliness of his 

IWA claim, but attempts to save it by invoking the continuing violation doctrine. This 

doctrine applies where the alleged violation “involves continuous or repeated 

injurious behavior, by the same actor and of a similar nature.” Spalding, 186 F. Supp. 

3d at 919 (quoting Taylor v. Bd. of Educ. of Chi., 10 N.E.3d 383, 395 (Ill. App. Ct. 

2014)). In such a case, the cause of action “does not accrue until the date the final 

injury occurs or the tortuous acts cease.” Id.

Here, Conway’s allegations are sufficient to trigger the continuing violation 

doctrine. If Conway is right, Simos and O’Donnell each directed a series of retaliatory 

acts, occurring with some frequency, over an extended period of time. The problem 

for Conway is that O’Donnell’s actions necessarily ended when she retired in July 

2019, more than a year before the complaint was filed. See Compl. ¶ 16. And she 

cannot be held responsible for Simos’s actions after her retirement. See Mnyofu v.

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Bd. of Educ. of Rich Twp. High Sch. Dist. 227, No. 03 C 8717, 2007 WL 1308523, at 

*15 (N.D. Ill. Apr. 27, 2007) (stating that individuals cannot be “lump[ed]” together 

or otherwise treated collectively under the IWA, even if they work for the same 

employer). Accordingly, the ITIA claim is dismissed with prejudice as untimely with 

respect to O’Donnell. See 

Simos, on the other hand, allegedly engaged in retaliatory actions well into the 

one-year period preceding the filing of Conway’s complaint. See id. ¶¶ 103–12. 

Therefore, his (and the City’s) motion to dismiss the ITIA on statute of limitation 

grounds is denied.

4

2. Whether Defendants Are Immune from Count II

Defendants also argue that they are immune from Conway’s IWA claim under

Section 2-201 of the ITIA, which provides that “a public employee serving in a position 

involving the determination of policy or the exercise of discretion is not liable for an 

injury resulting from his act or omission in determining policy when acting in the 

exercise of such discretion even though abused.” 745 Ill. Comp. Stat. 10/2-201. Like 

the statute of limitations, Section 2-201 immunity is an affirmative defense that a 

plaintiff need only avoid pleading into, not plead around. Van Meter v. Darien Park 

Dist., 799 N.E.2d 273, 285 (Ill. 2003). 

The Illinois Supreme Court has drawn a distinction “between situations 

involving the making of a policy choice and the exercise of discretion.” Id. “Municipal 

defendants are required to establish both of these elements in order to invoke 

4 Although the City and Simos submitted separate papers, the City does not contend 

that it cannot be held vicariously liable under Count II for Simos’s alleged conduct.

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immunity under [S]ection 2-201.” Id.; see also Valentino, 575 F.3d at 679 (“Section 2-

201 immunizes an individual defendant only to the extent that the action he is being 

sued for involves both the making of a policy choice and the exercise of discretion”). 

The Illinois Supreme Court has characterized the “policy” element as consisting of

“decisions requiring a governmental entity to balance competing interest and to make 

a judgement call as to what solution will best serve those interests.” Van Meter, 799 

N.E.2d at 286; cf. Valentino, 575 F.3d at 679 (noting that “because the [ITIA] is in 

derogation of the common law, it must be construed strictly against the public entities 

involved” (cleaned up)). 

In Valentino, the Seventh Circuit signaled that retaliatory acts are a poor fit 

for the “policy” prong of Section 2-201 immunity. There, the plaintiff had been fired 

for making copies of payroll records to support her suspicion of misconduct. 575 F.3d 

at 668–669. In denying immunity to the defendant, the court noted that the decision 

to fire an employee out of retaliation “does not amount to a ‘judgment call between 

competing interests.’” Id. at 679 (implicitly quoting Van Meter, 799 N.E.2d at 286). 

“In fact,” the court was “at a loss to identify any competing interests at all.” Id.; see 

also Spalding, 186 F. Supp. 3d at 919 (“such retaliation cannot be characterized as a 

. . . ‘judgment call between interests’” (quoting Valentino, 575 F.3d at 679). Similarly, 

here, Defendants fail to identify any competing interests that had to be balanced

when undertaking the alleged acts of retaliation. Accordingly, Defendants’ request 

that the Court immunize them from Count II under Section 2-201 is denied at this 

juncture. 

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3. Whether Simos May Be Individually Liable 

Finally, Simos (as well as O’Donnell) argues that there is no individual liability 

under the IWA. But, as this Court has previously explained, that view conflicts with 

“[t]he unambiguous and plain language of the IWA.” Van Pelt v. Bona-Dent, Inc., No. 

17 C 1128, 2018 WL 2238788, at *6 (N.D. Ill. May 16, 2018) (Lee, J.). As amended in 

2008, the statute defines an “employer” against whom the plaintiff has a cause of 

action to include not only the “entity” itself, but also “any person acting within the 

scope of his or her authority express or implied on behalf of those entities.” 740 Ill. 

Comp. Stat. 174/5. As Simos concedes, the weight of authority in this district agrees 

that this language imposes individual liability. See Wheeler v. Piazza, 364 F. Supp. 

3d 870, 884 (N.D. Ill. 2019) (discussing the “split” and adopting the majority 

approach). And the Court continues to find the minority view unpersuasive because 

it does not effectuate the statute’s unambiguous language. See, e.g., Parker v. Ill.

Hum. Rts. Comm’n, No. 12 C 8275, 2013 WL 5799125, at *9 (N.D. Ill. Oct. 25, 2013)

(reading “any person” to mean only “agents”); cf. People v. Christopherson, 899 N.E.2d 

257, 260 (Ill. 2008) (“When the statutory language is clear and unambiguous, it must 

be given effect without resort to other tools of interpretation.”).

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IV. Conclusion

For the reasons given above, the City and O’Donnell’s motion to dismiss is 

granted in part and denied in part, and Simos’s motion to dismiss is denied. Count 

II is dismissed with prejudice with respect to O’Donnell. In all other respects, the 

motions are denied. 

IT IS SO ORDERED. ENTERED: 9/16/21

__________________________________

John Z. Lee

United States District Judge

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