MEMORANDUM OPINION AND ORDER
Chad Weiler has sued the Village of Oak Lawn and Village Manager Larry Deetjen, challenging their decision to eliminate the Village’s Department of Business Operations, of which Weiler was the sole employee. Weiler alleges that Deetjen recommended the elimination of the department because Weiler had publicly accused Deetjen of race discrimination and had supported an opposing party’s candidates in the April 9, 2013 municipal election. Defendants have moved to dismiss Weil
Background
For purposes of the motion to dismiss, the Court accepts as true the following facts alleged in Chad Weiler’s complaint. See Fortres Grand Corp. v. Warner Bros. Entm’t Inc.,
This lawsuit stems from the elimination of the Department of Business Operations (including the director position) through an ordinance passed by the Village of Oak Lawn’s Board of Trustees. Weiler contends that Deetjen proposed the elimination of the department to the Board because Weiler had publicly accused Deetjen of race discrimination and had supported an opposing party’s candidates in the municipal election.
Weiler’s race discrimination allegations relate to the controversy surrounding where JenCare, a company that provides medical services to senior citizens, would build a facility in Oak Lawn. In early 2013, JenCare began negotiations to lease a building in the Village’s downtown business area, which formerly housed a House of Brides store (the “House of Brides site”). Id. ¶ 11. Deetjen opposed that location and instead suggested that Jen-Care lease a building outside the downtown area that had previously been a Men’s Wearhouse store (the “Men’s Wear-house site”). Id. ¶¶ 14-15. JenCare preferred the House of Brides site and asked if Deetjen would support a parking variance for that site. Deetjen refused to support JenCare in its request for approval in downtown Oak Loan. Id. ¶¶ 16-19.
JenCare petitioned the Village’s Planning and Development Commission for parking variances for both sites. At an April 2013 meeting of the Commission, Deetjen “expressed ‘deep concerns’ regarding JenCare’s use of the House of Brides Site.” Id. ¶ 23. He stated that “the 57% parking variance was ‘significant,’ and also raised concerns regarding the building’s exterior and existing sign.” Id. He also suggested that the JenCare facility would not comply with the Village’s plan for the development of the downtown area. The Board denied JenCare’s petition for a parking variance at the House of Brides site but eventually granted the company’s petition for a variance at the Men’s Wear-house site. Id. ¶¶ 40-45, 51.
Deetjen told Weiler privately that he did not want JenCare in the former House of Brides location because he did not want that “type of clientele” in the downtown business area; instead, he thought Jen-Care should build its facility on the “outskirts of town.” Id. ¶ 52. Because Weiler believed a significant segment of JenCare’s patients would be African American and Hispanic, he understood Deetjen’s comments to mean that he did not want African Americans and Hispanics in downtown Oak Lawn. Weiler also inferred that Deetjen’s comments were racially motivated because Deetjen had made a racist comment to an African-American police officer at a previous job. Id. ¶¶ 53-54. Weiler reported Deetjen’s comments to Dave Heilmann, the Village’s mayor at the time. Id. ¶ 60. Concerned about a poten
In addition to alleging that his department was eliminated because he exposed race discrimination, Weiler also contends that his position was eliminated in retaliation for his public support of Heilmann, the incumbent mayor, and Melissa Moran, who ran for Village clerk, in the April 9, 2013 municipal election. Shortly after the election, which both Heilmann and Moran lost, Deetjen asked to meet with Weiler regarding his job “now that the election was over.” Id. ¶ 33. At the meeting, Deetjen said that Weiler was “in a pickle” and that he should have put signs in his yard supporting the incumbent clerk rather than Moran. Id. ¶ 34. In early July 2013, Deetjen proposed an agreement under which Weiler would retire on July 25, the date his pension would vest. Id. ¶ 88. Weiler believed that Deetjen was threatening to fire him if he did not retire. Id. ¶ 91. Weiler did not agree to retire, and the offer was rescinded.
Having failed to force Weiler’s retirement, Deetjen submitted a memorandum to the Village Board of Trustees in advance of its August 13, 2013 meeting in which he suggested that eliminating the Department of Business Operations “would save ‘on an annual basis $102,000 gross in salaries and benefits but most likely $50,000 net after the Village Manager’s office redistributes work assignments and/or utilizes some contracted services.’ ” Id. ¶ 96. At the meeting, the Board voted to pass an ordinance eliminating Weiler’s department. Weiler was placed on administrative leave the next day, and the department was eliminated on September 1, 2013. Id. ¶¶ 98-100.
Weiler has brought a number of claims against Deetjen in his individual capacity and the Village of Oak Lawn. He claims that defendants are liable under 42 U.S.C. § 1983, because they retaliated against him for exercising his First Amendment rights (counts 1 and 2), terminated him because of his political speech and association in violation of the First Amendment (counts 3 and 4), terminated him because he opposed race discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment (counts 5 and 6), and retaliated against him for complaining about the violation of JenCare’s contract-related rights in violation of 42 U.S.C. § 1981 (counts 7 and 8). Weiler also brings a number state law claims. He claims that the Village violated the Illinois Civil Rights Act, 740 ILCS 23/5 (count 9), and the Illinois Human Rights Act, 775 ILCS 5/6-101(A) (count 11), by terminating him because he opposed race discrimination.
Discussion
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts the plaintiffs allegations as true and draws reasonable inferences in his favor. Parish v. City of Elkhart,
A. Legislative immunity
Defendants contend that Deetjen is entitled to absolute legislative immunity with respect to the federal claims, because his proposal to eliminate the Department of Business Operations constituted a legislative act. Weiler argues that the ordinance was actually a termination, which is administrative rather than legislative.
Absolute immunity is an affirmative defense. Tully v. Barada,
“Local legislators are entitled to absolute immunity from § 1983 liability for their legislative activities.” Bogan v. Scott-Harris,
Weiler argues that Deetjen is not immune from liability because he did not vote on the ordinance eliminating Weiler’s position. But an official need not be a legislator to be entitled to legislative immunity. The Supreme Court has concluded that “introducing, voting for, and signing an ordinance eliminating the government office held by respondent constituted legislative activities.” Bogan,
Although courts must assess whether an official’s actions were “in form, quintessentially legislative,” it is not clear whether courts may also assess the “whether the ordinance was legislative in substance.” Bogan,
Weiler urges the Court to analyze whether Deetjen’s proposal was substantively legislative, even if it was legislative in form. The Seventh Circuit’s guidance concerning whether an official is categorically entitled to immunity when he introduces or votes on legislation has not been entirely consistent. The court in Benedix v. Vill. of Hanover Park,
Despite Benedix’s protest that this ordinance wasn’t ‘really’ legislation because it had her as a target, we agree with the district court that an ordinance adopted through the legislative process, and having the force of law, is covered by legislative immunity no matter the motives of those who proposed, voted for, or otherwise supported the proposal.
Id. at 318. If Benedix created a categorical rule, then Deetjen is entitled to immunity without further analysis. It is not disputed that Weiler’s position was eliminated through the passage of an ordinance proposed by Deetjen. Because proposing legislation is formally legislative, Deetjen’s memorandum constituted a legislative act. See Bogan,
In Bagley, however, the Seventh Circuit suggested that even if a position was terminated through a formally legislative act, a court might look past the legislative form to determine if the legislation was a targeted attack on' an individual rather than a prospective reorganization. In that case, the court held that Governor Blagojevich’s veto eliminating certain Illinois Department of Corrections captains’ positions was legislative in form. Bagley,
The court cited substantial precedent that “supports the distinction between the firing of an employee,” which is administrative, “and the elimination of a position,” which is legislative. Id.; see also Bogan,
Although the court determined that Governor Blagojevich’s veto was substantively legislative, it súggested that the outcome might have differed if the positions had not been eliminated for policy or budgetary reasons. When the former captains argued that a nearly identical position was created after their positions were eliminated, the court responded that “this was not a one-for-one replacement of disfavored employees with more favored individuals-to do the same work. Some responsibilities overlapped and some former captains performed duties similar to the shift commanders, but not to a degree that the reorganization was not prospective.” Bagley,
In sum, Bagley suggests a narrow window that would allow examination of whether a personnel action, though it was in form a legislative action, was actually a firing of a particular individual. The Court must therefore assess whether Weiler has alleged sufficient facts that would permit a determination that his position was not prospectively eliminated. Weiler has not sufficiently made the necessary allegation.
Weiler argues that this was not a prospective reorganization, because Deetjen hired Steve Radice to do the same job for the same salary. But the facts alleged in the complaint do not support Weiler’s contention that the elimination of the Department of Business Operations was not a prospective reorganization. The complaint makes it clear that Radice was not a “one-for-one replacement.” Bagley,
Even if Weiler’s allegations súggest an improper motive, the Court cannot examine Deetjen’s motives. Bogan,
Accordingly, the Court dismisses the federal claims against Deetjen in his individual capacity (counts 1, 3, 5, and 7). Because the Court has ruled that Deetjen is entitled to absolute immunity, the Court need not address his alternative argument that he is entitled to qualified immunity.
Defendants contend that Weiler’s state law claims are barred by the Illinois Local Governmental and Governmental Employees Tort Immunity Act.
The Court looks to state immunity rules to determine whether a defendant is immune from liability under state law. See Benning v. Bd. of Regents of Regency Univs.,
Deetjen argues that he is immune under a passage of the Act that provides: “A public employee is not liable for an injury caused by his adoption of, or failure to adopt, an enactment, or by his failure to enforce any law.” 745 ILCS 10/2-205. He argues that no Village employee can be liable for actions related to the enactment of the budget that eliminated Weiler’s position. The Board members who voted on the ordinance would be immune from state liability under this provision and as a result the Village is immune from liability for their actions. Id.; 745 ILCS 10/2-103 (“A local public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”). Thus, Weiler’s state law claims against the Village are barred to the extent that they contemplate liability based on the Board members’ votes. It is undisputed, however, that Deetjen did not adopt any enactment as required by the Act. Because Deetjen merely proposed the ordinance, section 2-205 does not apply to him under its plain terms, and the Village is not immune from liability for his actions.
The Tort Immunity Act also entitles officials to immunity for discretionary policy decisions: “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 ILCS 10/2— 201. Illinois courts have determined that this provision, when analyzed in conjunction with immunity for government entities under 745 ILCS 10/2-109, also immunizes municipalities for officials’ discretionary policy decisions. Murray v. Chi. Youth Ctr.,
In order for an official to be entitled to immunity under section 2-201, the action that caused the injury must “be both a determination of policy and an exercise of discretion.” Harrison v. Hardin Cnty. Cmty. Unit Sch. Dist. No. 1,
If what Weiler alleges is true, Deetjen’s proposal to eliminate Weiler’s department was discretionary, because he was not performing a set of tasks in a prescribed manner. See Johnson v. Mers,
Nonetheless, there is a factual dispute concerning whether Deetjen was determining policy when he recommended the elimination of Weiler’s department. Accepting Weiler’s allegations as true, Deetjen was not balancing competing interests; rather, he proposed the reorganization to retaliate against Weiler for his complaints about Deetjen’s discriminatory comments and his support of the opposing party’s candidates. The Seventh Circuit held that a mayor who fired an employee after she exposed corrupt practices in the mayor’s office was not immune from retaliatory discharge under the Tort Immunity Act, because the mayor failed to establish that he had made a policy decision. Valentino v. Vill. of S. Chi. Heights,
Weiler’s allegations are similar to those in Valentino. He alleges that Deetjen’s proposal to eliminate his position was not driven by policy considerations, but by retaliatory motives. Because there is a dispute concerning whether Deetjen made a
For purposes of case management, the Court will address Weiler’s argument that Deetjen is not immune because section 2-201 carves out an exception that precludes immunity when liability is “otherwise provided by statute.” 745 ILCS 10/2-201. According to Weiler, the Illinois Whistleblower Act is one such statute. This argument is unavailing. The Tort Immunity Act specifically lists the statutes that constitute exceptions, and the Whistleblower Act is not one of them. 745 ILCS 10/2—101. Illinois courts have been reticent to infer exceptions that are not expressly stated in the Tort Immunity Act. See, e.g., People ex rel. Birkett v. City of Chicago, 325 IIl.App.3d 196, 201,
C. First Amendment political affiliation claim
Defendants argue that Weiler’s political affiliation claims (counts 3 and 4) should be dismissed because his political affiliation was a permissible criterion for his removal. Because Deetjen is entitled to absolute immunity, the Court only addresses the First Amendment affiliation claim against the Village. '
Weiler alleges that the Village violated the First Amendment by terminating his position in retaliation for his public support of the former mayor and one of the candidates for Village clerk. The termination or removal of a public employee because of his political affiliation is typically prohibited under the First Amendment. Elrod v. Burns,
It is not clear from the complaint whether Weiler’s position involved policymaking, as that inquiry turns on “the job description and the powers of office.” Riley,
Nonetheless, Weiler’s position involved a confidential relationship with Deetjen. In Benedix, the Seventh Circuit affirmed the dismissal of an association claim because the plaintiffs job as executive coordinator to a village manager involved a confidential relationship. Benedix,
Accepting the facts alleged in the complaint as true, there is no question that Weiler’s relationship with Deetjen was a confidential one. As Village Manager, Deetjen was “responsible for the overall administration of all Village departments,” including Weiler’s department. Am. Compl. ¶ 10. Weiler “worked under Deetjen’s direction” and “reported to Deetjen.” Id. ¶¶ 8, 10. Among other responsibilities, Weiler “scout[ed] potential sites for businesses interested in doing business in the Village,” which he did “pursuant to Deetjen’s direction.” Id. ¶¶ 8, 56. Thus, Weiler was responsible for “recommending and implementing [ ] policies” under Deetjen’s direction. Benedix,
Weiler and Deetjen’s relationship also involved meetings about Village policy. They met a number of times to discuss where the JenCare facility would be located and whether its requests for a parking variance should be approved. Am. Compl. ¶¶ 52, 58. According to Weiler’s complaint, intimate details of municipal governance were discussed at these and other meetings. Deetjen shared his vision for the Village’s downtown and his concerns about JenCare. Deetjen also met with Weiler to discuss an FBI investigation of the Village, although the complaint does not describe the subject matter of the investigation. Id. ¶ 61. Based on the facts alleged in the complaint, Deetjen and Weiler’s relationship was a confidential one, for which political affiliation was an appropriate job qualification. Accordingly, the Court dismisses Weiler’s First Amendment association claim.
D. Equal protection claim
Defendants contend that Weiler’s equal protection claims against Deetjen and the Village (counts 5 and 6) must be dismissed because Weiler does not have
Defendants are correct that Weiler does not have standing to challenge the violation of JenCare’s equal protection rights. A person cannot assert the rights of another unless “the party asserting the right has a close relationship with the person who possesses the right” and “there is a hindrance to the possessor’s ability to protect his own interests.” Kowalski v. Tesmer,
Weiler clarified, in his response brief, that he “does not seek to sue on behalf of JenCare or its patients to vindicate their rights; rather, he seeks to vindicate his own rights, which were violated when defendants terminated his employment because he objected to and opposed racial discrimination against JenCare and its customers.” Pl.’s Opp’n to Mot. to Dismiss at 11. Weiler’s equal protection claim is therefore a claim of retaliation for reporting race discrimination. This claim cannot be pursued under the Equal Protection Clause. The Seventh Circuit has held that “the right to be free from retaliation may be vindicated under the First Amendment or Title VII, but not the equal protection clause.” Boyd v. Ill. State Police,
If anything, Supreme Court precedent supports the conclusion that the Equal Protection Clause cannot support Weiler’s retaliation claim. Because Weiler has not alleged differential treatment based on membership in any group, his claim can only proceed under a “class-of-one” theory of equal protection (the Court notes, however, that Weiler has not argued the claim on this basis). See Vill. of Willowbrook v. Olech,
E. Illinois Civil Rights Act claim
Defendants argue that Weiler’s claim against the Village under the Illinois Civil Rights Act (ICRA) must be dismissed because he has lacks standing, he has not exhausted his state remedies, and the claim is duplicative of his First Amendment retaliation claim.
ICRA provides, in relevant part, that no unit of local government shall “exclude a person from participation in, deny a person the benefits of, or subject a person to discrimination under any program or activity on the grounds of that person’s race, color, national origin, or gender.” 740 ILCS 23/5(a). The statute does not expressly create a cause of action for retaliation. Judge Hoffman of the Illinois Appellate Court stated, in a concurring opinion, that “[t]he Civil Rights Act, unlike the Human Rights Act, does not grant a right of action to a person who experiences retaliation because he or she has opposed that which he or she reasonably believes to be unlawful discrimination.” Ill. Native Am. Bar Ass’n v. Univ. of Ill.,
ICRA was patterned on Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, which prohibits race and national origin discrimination in federally assisted programs. See 93d Ill. Gen. Assemb., H. Deb., April 3, 2003, at 146 (statements of Rep. Fritchey) (“[T]his Bill will create a parallel state remedy to ... the federal cases that were brought under Section 601 of the Civil Rights Act.”); Ill. Native Am. Bar Ass’n,
The Fourth Circuit has held that Title VI encompasses retaliation claims. Peters v. Jenney,
Weiler has standing to pursue a retaliation claim under ICRA. He has alleged an injury caused by the Village — the elimination of his position due to his complaints about race discrimination — that would be redressed by a favorable decision. See Lujan v. Defenders of Wildlife,
Defendants also argue that Weiler’s ICRA claim is duplicative of his First Amendment retaliation claim. Defendants are correct that duplicative state law claims have been dismissed when they involve the “same operative facts.” Majumdar v. Lurie,
Finally, defendants’ exhaustion argument lacks merit. ICRA does not require exhaustion; rather, a plaintiff may file a lawsuit directly in federal court. 740 ILCS 23/5(b) (“Any party aggrieved by conduct that violates subsection (a) may bring a civil lawsuit, in a federal district court or State circuit court, against the offending unit of government.”).
Conclusion
For the foregoing reasons, the Court grants defendants’ motion to dismiss in part and denies it in part [dkt. no. 14]. The Court dismisses the federal claims against Deetjen in his individual capacity (counts 1, 3, 5, and 7), along with the First Amendment association and equal protection claims against the Village (counts 4 and 6). The Court declines to dismiss Weiler’s state law claims (counts 9 and 10), and the Village has not sought dismissal of counts 2, 8, and 11.
Notes
. Weiler had not alleged an Illinois Human Rights Act violation when defendants filed their motion to dismiss. Weiler amended his complaint to include that count after briefing on the motion to dismiss had been completed.
. Defendants attached the ordinance and the August 13, 2013 meeting minutes to their motion to dismiss. The Court can take judicial notice of such documents without converting a motion to dismiss into a motion for summary judgment if they are public records. Adkins v. VIM Recycling, Inc.,
. The Village is not entitled to absolute or qualified immunity. See Leatherman v. Tar
. Defendants only argue that Weiler’s Illinois Civil Rights Act and Whistleblower Act claims are barred on immunity grounds, because Weiler had not amended the complaint to add an Illinois Human Rights Act claim when briefing on the motion to dismiss was completed.
. The Seventh Circuit has observed that there is some debate in Illinois courts as to whether a municipality can "combine sections 2-201 and 2-109 to extend immunity from a municipal official to the municipality itself.” Valentino v. Vill. of S. Chi. Heights,
. The Illinois Human Rights Act, by contrast, does require exhaustion of remedies. See 775 ILCS 5/7A-101-104. After defendants filed their motion to dismiss, Weiler exhausted his remedies and amended the complaint to include a claim under the Illinois Human Rights Act.