Opinion
01 C 5551, 01 C 5330, 01 C 4848, 01 C 4622
January 24, 2002
MEMORANDUM OPINION
This matter comes before the court on the motions to dismiss of Defendants City of Chicago, Sheila Lyne, AFSCME, and Richard Daley. For the reasons stated below, the motions are granted.
BACKGROUND
For the purposes of a motion to dismiss, facts are normally taken from the complaint. The complaints in these cases supply very few facts, so the following background is taken from the complaint as well as papers plaintiff James O'Donnell attached to his responses to the instant motions.
O'Donnell, an osteopathic physician, was employed by the Chicago Department of Health ("CDOH") and worked at various clinics around Chicago. On or about April 25, 2000, O'Donnell was involved in an incident at Lakeview Clinic with a patient and other City workers. The exact circumstances of this event are unclear, but it resulted in a predisciplinary hearing in connection with a violation of the City's Violence in the Workplace policy. The statement of charges filed in connection with the violation alleged, inter alia, that on or about April 25, 2000, O'Donnell verbally abused and behaved in an intimidating manner toward another City employee.
On August 7, 2000, CDOH officials, representatives of Defendant Local 3368 ("the Union"), and O'Donnell met to discuss his imminent discharge. The following day, O'Donnell requested various information and documents from LaVerne Walker, the Union's president. Walker did not comply with O'Donnell's requests.
As a result of the charges, Defendant Lyne terminated O'Donnell's employment with the city on August 21. On or around October 20, O'Donnell applied for the positions of medical director of the STD/HIV Prevention program and Commissioner of the CDOH. He was not given either position.
In March 2001, O'Donnell filed two charges with the EEOC. The first alleged that his August 2000 discharge was based on his race, national origin, and religion (white, Irish-American, and Catholic, respectively). The second focused on his unsuccessful attempts in October 2000 to be hired as Commissioner or Assistant Commissioner of the CDOH. O'Donnell alleged sex (male) and age (54 years old) as discriminatory bases in addition to those cited in the first charge. The charge makes no mention of O'Donnell's application for the position of medical director of the STD/HIV Prevention program.
Unsatisfied with the results of the EEOC investigation, O'Donnell brought separate suits against each of the four defendants, seeking $100,000,000 in damages under Title VII, 29 U.S.C. § 185, and 42 U.S.C. § 1981, 1983, and 1985. All of the defendants move to dismiss the complaints in their respective suits for failure to state a claim pursuant to Fed.R.Civ.Proc. 12(b)(6). Because all of the complaints are identical save for the information contained in the captions, we consider them as one.
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. Bontkowski 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 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 v. 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). However, a pro se complaint is held to "less stringent standards than formal pleadings drafted by lawyers." Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). With these principles in mind, we turn to the Defendants' motions.
DISCUSSION
A federal court's jurisdiction over a legal claim takes one of two forms: federal question, or "arising under," jurisdiction, in which a cause of action arises under the Constitution, statutes, or treaties of the federal government; or diversity jurisdiction, in which parties to a suit reside in different states. 28 U.S.C. § 1331, 1332. If a federal court can exercise jurisdiction through one of these avenues, then and only then may it also hear related claims that are based solely in state law. 28 U.S.C. § 1367; United Mine Workers v. Gibbs, 86 S.Ct. 1130, 1139 (1966); Packman v. Chicago Tribune Co., 267 F.3d 628, 636 (7th Cir. 2001). In this case, O'Donnell's complaint seeks relief under both federal and state causes of action. He and the defendants are all citizens of Illinois, so he cannot rely on diversity jurisdiction to bring his claims. Our jurisdiction, if any, must flow from claims that arise under federal law. We therefore focus initially on the viability of O'Donnell's federal claims (Counts 1, 2, 4, 5, 7, and 9) because without them, we have no power to hear the remainder of his case.
Title VII and § 1981 (Count 1)
As O'Donnell's claims revolve around his employment with the City, he looks in part to Title VII and 42 U.S.C. § 1981. Properly pleaded claims for employment discrimination under these statutes are premised on the same four elements. Lalvani v. Cook County, 269 F.3d 785, 789 (7th Cir. 2001). A plaintiff must allege that he is a member of a protected class; that he met either the qualifications for the job or the employer's legitimate expectations for performance; an adverse employment action; and more favorable treatment of similarly situated persons not in the protected class. Id. Leaving aside the other three elements, O'Donnell's Title VII and § 1981 claims cannot satisfy the fourth factor. The complaint contains no allegations of more favorable treatment of any person, similarly situated or not. Without overt expression of impermissible bias or differing treatment, there is no inference that an employment action has its foundation in unlawful discrimination. Even with the most liberal of readings, O'Donnell's complaint only states that he was fired and that he is white, over 50, of Irish descent, and Roman Catholic. He makes no allegations that the first is in any way connected to any of his personal characteristics. The counts based on employment discrimination therefore have no legal viability.
Indirectly, the complaint also alleges retaliation in the form of the City's refusal to hire O'Donnell in the positions for which he applied in October 2000. A prima facie case of retaliation under 42 U.S.C. § 1997d requires a plaintiff to allege statutorily protected activity, an adverse employment action, and a causal link between the two. Lalvani, 269 F.3d at 790. O'Donnell filed EEOC charges against the CDOH in March 2001, claiming that his dismissal in August 2000 was the product of unlawful discrimination. The filing of an EEOC charge is a statutorily protected activity, so the first element is satisfied. Filipovic v. K R Exp. Systems, Inc., 176 F.3d 390, 398-99 (7th Cir. 1999). The second requirement could conceivably be present, because Title VII in certain circumstances will apply to retaliation against former employees.Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 884-93 (7th Cir. 1996);Reed v. Shepard, 939 F.2d 484, 493 (7th Cir. 1991). Even given the liberal reading we must give his pro se complaint and assuming that the second element is present, O'Donnell's allegations bely the final element of causation. His statutorily protected activity happened at least four months after the adverse employment actions that he relies on, i.e., his discharge from and subsequent denial of other positions with the CDOH. The chronology of the case O'Donnell has pleaded forecloses the possibility of a viable retaliation claim. It was simply impossible for the City or its officials to retaliate against him for something that had not yet occurred.
18 U.S.C. § 1001 (Count 2)
Count 2 of the complaint claims violation of 18 U.S.C. § 1001, which imposes fines or imprisonment for anyone who "knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. . . ." O'Donnell attempts to use this statute to impose liability on the defendants for the statements contained in the charges filed against him that led to his termination. He ignores the fact that § 1001 is a criminal statute that does not imply a corresponding private right of action. Federal Savings and Loan Ins. Corp. v. Reeves, 816 F.2d 130, 137-38 (4th Cir. 1987); Johnson v. Cullen, 925 F. Supp. 244, 251 (D.Del. 1996); Fiorino v. Turner, 476 F. Supp. 962, 963 (D.Mass. 1979). Accordingly, count 2 cannot be legally viable.
42 U.S.C. § 1985(3) (Counts 1 and 7)
A properly stated § 1985(3) claim is comprised of four elements: (1) the existence of a conspiracy (2) for the purpose of depriving, directly or indirectly, any person of equal protection under the law, along with (3) an act furthering the conspiracy (4) that results in injury. See Majeske v. Fraternal Order of Police, 94 F.3d 307, 311 (7th Cir. 1996). In alleging these four elements, a plaintiff may not rely on mere conclusory allegations of conspiracy. Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir. 1984); Shepherd v. ATT, 1994 WL 110167, *2 (N.D. Ill. 1994) (collecting cases). Even the most generous characterization of O'Donnell's description of the claimed collusion between the defendants in this suit cannot make his allegations pass this initial requirement. Because he makes only conclusory statements with regard to his § 1983(3) claims, they are properly dismissed.
29 U.S.C. § 185 (Count 21)
O'Donnell's complaint against the Union does not identify a specific federal statute but seems to allege a breach of duty of fair representation, so we assume it is premised on 29 U.S.C. § 185. However, the Union correctly points out that the Labor Management Relations Act, of which § 185 is a part, does not apply to states or their political subdivisions. 29 U.S.C. § 152(2). By extension, unions who represent public employees do not fall under the purview of the LMRA's provisions regarding fair representation. See Felice v. Sever, 985 F.2d 1221, 1226-27 (3rd Cir. 1993); Manfredi v. Hazleton City Auth., 793 F.2d 101, 102, 104 (3rd Cir. 1986); Naum v. City of New York, 1996 WL 140305, at *2 (S.D.N.Y. 1996); Kinslow v. Briscoe, 1993 WL 72336, at *1 n. 1 (N.D. Ill. 1993). The portions of the complaint alleging that the Union transgressed federal laws therefore cannot stand.
42 U.S.C. § 1983 (Counts 1, 4, 5, 9)
The final federal cause of action in the complaint rests on allegations that Lyne, Daley, and the City violated 42 U.S.C. § 1983. A claim brought under this section must contain two elements: (1) deprivation of a federal constitutional or statutory right (2) by a person acting under color of state law. See Parratt v. Taylor, 101 S.Ct. 1908, 1912 (1981). O'Donnell has no trouble with the second element; Lyne, Daley, and the City clearly act under color of state law in matters involving municipal employees. The first element, however, presents problems for his claims.
Plaintiffs alleging infringement of statutory rights under § 1983 must identify with particularity the rights upon which their claims rest to enable a court to properly assess whether these rights will give rise to relief under § 1983. Blessing v. Firestone, 117 S.Ct. 1353, 1359, 1360 (1997). As discussed above, O'Donnell has not stated a cognizable claim under any of the statutes that he specifically identifies within his complaint. Because § 1983 is not an independent font of enforceable rights but rather a vehicle for vindicating rights conferred elsewhere, O'Donnell's only recourse is to claim that the defendants caused him injury of constitutional proportions. Albright v. Oliver, 114 S.Ct. 807, 811 (1994). We note that Albright also stated that a § 1983 claim must identify the specific constitutional right the plaintiff is claiming was infringed in order to survive a 12(b)(6) motion. Id. Although O'Donnell has not specifically named the right he alleges was violated, in keeping with the teachings of Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S.Ct. 1160 (1993) (condemning application of a heightened pleading standard to § 1983 actions) and Henderson, 196 F.3d at 845 (requiring district courts to read pro se complaints liberally), we examine whether the complaint, as written, suggests a constitutional injury.
The constitutional rights that can underlie a § 1983 claim fall into three areas: (1) those specifically enumerated in the Bill of Rights and made applicable to the states via the Fourteenth Amendment; (2) protections of substantive due process; and (3) procedural due process rights. Zinermon v. Burch, 110 S.Ct. 975, 983 (1990). O'Donnell has not alleged deprivation of any of the rights in the first category; neither do his interactions with the defendants implicate substantive due process rights. See Albright, 114 S.Ct. at 812 (noting that substantive due process for the most part implicates "matters relating to marriage, family, procreation, and the right to bodily integrity"). That leaves the final category, procedural due process, which requires as a threshold matter that the plaintiff suffer injury to a life, liberty, or property interest. Employment issues, if they fit into this category at all, fall under the heading of property interests. However, not every government job constitutes a property interest. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 105 S.Ct. 1487, 1491 (1985); Board of Regents v. Roth, 92 S.Ct. 2701, 2709 (1972); Santella v. City of Chicago, 936 F.2d 328, 331-32 (7th Cir. 1991). O'Donnell's complaint gives no indication that his employment with the City was anything other than an at-will arrangement; there is no indication that the City had entered into any obligation of continued employment which could give rise to a property interest that would trigger procedural due process concerns. O'Donnell's § 1983 claims therefore lack the required presence of a separately conferred statutory or constitutional right and cannot withstand the defendants' 12(b)(6) motions.
In sum, then, none of the federally based claims of the complaint state a claim upon which relief can be granted, and they must be dismissed. We are left without jurisdiction to examine O'Donnell's remaining state-law claims. They are likewise dismissed.
CONCLUSION
For the foregoing reasons, O'Donnell's complaints in all four cases are dismissed in their entirety.