Matthew Bonnstetter v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2977
MATTHEW BONNSTETTER, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO, a Municipal
Corporation, et al.,
Defendants-Appellees.
No. 14-3573
GARRETT FISHWICK,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, a Municipal
Corporation,
Defendant-Appellee.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 4834 — Virginia M. Kendall, Judge.
No. 14 C 2553 — Harry D. Leinenweber, Judge.
2 Nos. 14-2977 and 14-3573
ARGUED JANUARY 4, 2016 — DECIDED FEBRUARY 3, 2016
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Eight plaintiffs-appellants in two
cases, consolidated here on appeal (collectively the “Appli-
cants”), applied for the position of police officer with the
Chicago Police Department (“CPD”). All of the Applicants
were, for various reasons, disqualified from consideration
for the position. They then sued the City of Chicago (the
“City”), claiming violations of the City’s 2011 Hiring Plan (the
“Hiring Plan”), violations of the Settlement Order and Accord
entered in Shakman v. Democratic Organization of Cook Co., 481
F. Supp. 1315 (N.D. Ill. 1979) (the “Shakman Accord”), and
equal protection violations under the Illinois Constitution. In
both cases, the district courts granted the defendants-appellees’
motions to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. All of the Applicants have
limited their appeals to the dismissals of their Shakman claims.
For the following reasons, we affirm the dismissals in both
cases.
I. BACKGROUND
The Shakman Accord resulted from resolution of a series
of political patronage litigation.1 The Shakman Accord was
1
A detailed account of the Shakman litigation is provided in O’Sullivan v.
City of Chicago, 396 F.3d 843, 847–50 (7th Cir. 2005), and need not be
reiterated here for purposes of this discussion.
Nos. 14-2977 and 14-3573 3
designed, in general, to eliminate political considerations in
employment decisions made by the City. Pursuant to the
Shakman Accord, the City agreed to create and implement a
hiring plan to effectuate the goal of eradicating political
patronage. Shakman “adds speech and political affiliation to
the list” of impermissible bases of employment discrimination
delineated by Title VII of the Civil Rights Act of 1964. Smith v.
City of Chicago, 769 F.2d 408, 410 (7th Cir. 1985). Specifically, the
consent decree entered June 20, 1983, in Shakman v. Democratic
Org., 569 F. Supp. 177 (N.D. Ill. 1983), precludes the City
from “conditioning, basing or knowingly prejudicing or
affecting the hiring of any person as a Governmental Employee
(other than for Exempt Positions), upon or because of any
political reason or factor including, without limitation, any
prospective employee's political affiliation, political support
or activity, political financial contributions, promises of such
political support, activity or financial contributions, or such
prospective employee's political sponsorship or recommenda-
tion.” Shakman, 569 F. Supp. at 179.
In the case of Matthew Bonnstetter, et al. v. City of Chicago,
et al. (No. 14-2977), the plaintiffs, including Matthew Bonn-
stetter (“Bonnstetter”), Peter Slowik (“Slowik”), Ilir Shemitraku
(“Shemitraku”), Paul Sauseda (“Sauseda”), David Gutierrez
(“Gutierrez”), Andrea Buttita (“Buttita”), and Tareq Khan
(“Khan”), filed suit against defendants the City and
CAPFS/LEPFS Joint Venture (“CAPFS”). Against the City,
these plaintiffs alleged violations of the Hiring Plan, violations
of the Shakman Accord, equal protection violations under the
Illinois Constitution, and conspiracy under both 42 U.S.C.
4 Nos. 14-2977 and 14-3573
§§ 1983 and 1985(3). As against CAPFS, these plaintiffs alleged
one count of conspiracy, pursuant to 42 U.S.C. § 1983.
In the case of Garrett Fishwick v. City of Chicago (No. 14-
3573), the sole plaintiff is Garrett Fishwick (“Fishwick”), and
the sole defendant is the City. By his complaint, Fishwick
alleges age discrimination in violation of the Age Discrimina-
tion in Employment Act of 1967, 29 U.S.C. § 621 et seq., disabil-
ity discrimination in violation of the Americans with Disabili-
ties Act , 42 U.S.C. § 12111 et seq., and violations of the Shakman
Accord and the Hiring Plan.
The facts of these consolidated cases are taken from the
complaints, which we are required to accept as true at this
stage in the cases. Golden v. State Farm Mut. Auto. Ins. Co., 745
F.3d 252, 253 (7th Cir. 2014). The CPD is responsible for hiring
officers, and the City’s Department of Human Resources
Employment Services Division facilitates that hiring. In
October 2010, the CPD published a job announcement for the
police officer position. According to the announcement, the
hiring process entailed a written examination, a medical
examination, a background investigation, a psychological
examination, a drug screening, a physical fitness test, and other
application procedures. The City contracted with CAPFS to
perform the psychological testing.
If an applicant passed the written examination, the appli-
cant was placed on an eligibility referral list and given a lottery
number. When a position became vacant, the applicant would
proceed with the other portions of the application process,
such as a medical examination, psychological examination, and
drug screening, according to lottery number position. When
Nos. 14-2977 and 14-3573 5
the Applicants in these cases passed the written examination,
they were given a random lottery number, and proceeded with
the application process.
CPD removed Applicants Bonnstetter, Gutierrez, and
Slowik from eligibility based on the results of their psychologi-
cal examinations. In his complaint, Slowik alleges that he was
asked questions during his psychological examination regard-
ing his veteran status, his experiences while serving in the
United States Marine Corps, his combat record, and his beliefs
and experiences regarding war. Two Applicants, Sauseda and
Fishwick, were removed from eligibility when they reached the
proscribed age limit of 40 during the application process. The
CPD removed two Applicants, Shemitraku and Khan, based
upon their failure of the polygraph examination. Although
Applicant Buttita provided CPD with transcripts reflecting her
sufficient college credits, CPD removed Buttita from eligibility
because she did not meet the education requirements for the
position.
Applicants Bonnstetter and Slowik, with plaintiff Alexan-
der Muniz, filed their original complaint on June 3, 2013,
naming the City and CAPFS as defendants. Their First Amend-
ed Complaint (“FAC”) was filed October 14, 2013, adding
Shemitraku, Sauseda, Gutierrez, Buttita, and Khan as plaintiffs,
and removing Alexander Muniz as a plaintiff. Both the City
and CAPFS moved under Federal Rule of Civil Procedure
12(b)(6) (“Rule 12(b)(6)”) to dismiss the FAC for failure to state
a claim. The district court granted the motions, finding:
Applicants Bonnstetter, Shemitraku, Sauseda, Gutierrez,
Buttita, and Khan failed to state a Shakman claim; Bonnstetter’s,
Gutierrez’s, and Sauseda’s Shakman claims were barred by the
6 Nos. 14-2977 and 14-3573
statute of limitations; and Slowik’s Shakman claim was barred
by res judicata.
Applicant Fishwick filed his complaint on April 9, 2014,
naming the City as the sole defendant. As in the other case, the
district court granted the City’s Rule 12(b)(6) motion to
dismiss, finding Fishwick failed to state a claim and failed to
file within the statute of limitations period.
II. DISCUSSION
We review the district courts’ granting of the motions to
dismiss under Rule 12(b)(6) de novo, accepting all well-pleaded
facts as true and drawing all reasonable inferences in favor
of the Applicants, the non-moving parties. Golden, 745 F.3d at
255. A Rule 12(b)(6) motion challenges the sufficiency of the
complaint itself. Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990) (citation omitted). To state a claim, a complaint
must first provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). The statement of the claim must sufficiently give “fair
notice of what the … claim is and the grounds upon which it
rests” to the defendants. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citation omitted). Additionally, the complaint’s
factual allegations must raise the claim above a mere “specula-
tive level.” Id. (citation omitted). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Id. (citations, quotations, and
brackets omitted).
Nos. 14-2977 and 14-3573 7
A. Conspiracy Claim Against CAPFS
Preliminarily, because the Applicants failed to address any
argument in their opening brief as against CAPFS, they have
waived any such arguments or claims. Sere v. Bd. of Tr., 852
F.2d 285, 287–88 (7th Cir. 1988). Specifically, the Applicants
unilaterally limited their appeal to their Shakman claims,
explicitly excluding their conspiracy claims. The only claim
made against CAPFS is for conspiracy. But the Applicants
failed to address or challenge the dismissal of the conspiracy
claim in their appeal, and have thereby waived any claim on
appeal.
B. Shakman Claims Against the City
The Applicants complain that the City failed to utilize a
“transparent” hiring process, allowing the City to manipulate
the hiring process in an impermissible way. Although labeled
a Shakman claim, the Applicants’ theory does not constitute a
genuine claim under Shakman. To assert a viable Shakman
Accord violation, the Applicants must allege that a political
reason or factor was the cause of the adverse employment
action. See, e.g., Shanahan v. City of Chicago, 82 F.3d 776, 780 (7th
Cir. 1996); Cusson-Cobb v. O’Lessker, 953 F.2d 1079, 1081 (7th
Cir. 1992); Smith, 769 F.2d at 410. Put plainly, the Shakman
Accord prohibits political discrimination in employment, and
the basis of a Shakman claim must be impermissible political
discrimination.
Looking at the plain language of the Applicants’ complaints
(excluding Slowik at this point in the discussion) and accepting
all facts as pleaded as true, the Applicants have failed to state
a claim based on a violation of the Shakman Accord by failing
8 Nos. 14-2977 and 14-3573
to allege any facts whatsoever pertaining to political affiliation,
beliefs, or activities. None of the Applicants alleged any facts
that would constitute a claim of impermissible political dis-
crimination. They have not alleged any facts pertaining to their
political affiliations, beliefs, or activities. They have not alleged
that the City knew the political affiliations, beliefs, or activities
of any of the Applicants. They have not alleged that the City
eliminated them from consideration for the position because of
their political affiliations, beliefs, or activities.
In addition, Applicants Bonnstetter, Gutierrez, Sauseda,
and Fishwick failed to bring their Shakman claims within the
appropriate statute of limitations period. A statute of limita-
tions defense is properly considered in determining a
Rule 12(b)(6) motion when the factual allegations in the
complaint establish such a defense. See, e.g., O’Gorman v. City
of Chicago, 777 F.3d 885, 889 (7th Cir. 2015); United States
Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003)
(citing Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002))
(“litigant may plead itself out of court by alleging (and thus
admitting) the ingredients of a defense,” including statute of
limitations).
The limitations period for a Shakman claim is 180 days from
the date of the discriminatory act. Smith, 769 F.2d at 413. In the
case of the Applicants, the discriminatory act occurred when
the Applicants learned they had been eliminated from eligibil-
ity. See, e.g., Smith, 769 F.2d at 413 (tolling of limitations period
for Shakman claim begins when plaintiff demoted). Bonnstetter
was notified of his ineligibility by e-mail on July 25, 2012, but
filed his complaint on June 3, 2013. Gutierrez received his
Nos. 14-2977 and 14-3573 9
rejection e-mail in December 2012, but his complaint was filed
on October 14, 2013. Sauseda received his rejection letter on
July 5, 2012, but his complaint was also filed October 14, 2013.
Fishwick received his rejection letter on September 6, 2013, but
filed his complaint on April 9, 2014. All of these Shakman claims
were filed beyond the 180-day time limit and are therefore
barred by the statute of limitations.
C. Applicant Slowik’s Shakman Claim Against the City
The only Applicant who potentially approaches a Shakman
claim is Slowik. According to the FAC, Slowik was asked
questions during his psychological examination regarding his
veteran status, his experiences while serving in the United
States Marine Corps, his combat record, and his beliefs and
experiences regarding war. At this point we may reasonably
infer that these questions attempted to elicit Slowik’s political
views or beliefs.
However, Slowik failed to allege any other facts supporting
a claim of unlawful political discrimination. He alleges no facts
showing what his answers to the questions were, that the City
knew what his answers or political inclinations were, and,
perhaps most importantly, that the City disqualified him from
eligibility because of his answers or his political beliefs or
activity. The allegations constituting Slowik’s Shakman claim do
not rise above labels and speculation. In short, Slowik failed to
state a Shakman claim.
At any rate, res judicata precludes Slowik’s Shakman claim.
Federal courts are to give full faith and credit, including any
preclusive effects, to all judgments rendered in state courts that
those judgments would have in those state courts. 28 U.S.C.
10 Nos. 14-2977 and 14-3573
§ 1738; Allen v. McCurry, 449 U.S. 90, 96 (1980) (citations
omitted). Here, Slowik filed a complaint against the City in
Illinois state court asserting discrimination based upon his
rejection from eligibility due to his “failing” of the psychologi-
cal examination. Slowik dismissed his state complaint with
prejudice.
We review a dismissal based upon res judicata de novo.
Chicago Title Land Trust Co. v. Potash Corp. of Saskatchewan Sales,
664 F.3d 1075, 1079 (7th Cir. 2011) (citation omitted). Because
Slowik’s dismissal occurred in an Illinois state court, we
apply Illinois law pertaining to res judicata. Id. In Illinois, for
res judicata to apply, “there must be (1) a final judgment on the
merits rendered by a court of competent jurisdiction, (2) the
same cause of action, and (3) the same parties or their ‘priv-
ies.’” Id. (citing Hudson v. City of Chicago, 889 N.E.2d 210, 215
(2008)). The tripartite requisites of Illinois res judicata are met
here. Slowik alleged the same cause of action, a Shakman claim,
against the same defendant, the City, in his state court action
as in his federal action. His dismissal with prejudice constitutes
a final judgment on the merits. 4901 Corp. v. Town of Cicero, 220
F.3d 522, 530 (7th Cir. 2000) (citations omitted); Torres v.
Rebarchak, 814 F.2d 1219, 1223 (7th Cir. 1987) (citations omit-
ted).
Slowik argues that two equitable exceptions to res judicata
should apply. First, Slowik argues the City acquiesced to his
refiling of his claim in the federal action by failing to object.
Such claim-splitting is permitted if the adverse party agrees or
acquiesces to it. Walczak v. Chicago Bd. of Educ., 739 F.3d 1013,
1018 (7th Cir. 2014), (citing Restatement (Second) of Judgments
Nos. 14-2977 and 14-3573 11
§ 26(1) (1982)). However, there is no indication in the record
that the City acquiesced to Slowik’s filing of the complaint in
federal court. The City objected to the federal suit during the
pendency of the state suit and asserted res judicata as an
affirmative defense in all motions filed in the district court.
There is no equitable reason why res judicata should not apply
based on acquiescence.
We note that Slowik and the City agreed to the order
dismissing the administrative review complaint with prejudice
in the Illinois state court. Had Slowik provided evidence that
this agreement was based on an understanding with the City
that he would pursue his claims in federal court, perhaps he
could have prevailed on an acquiescence argument. In the
absence of such a record, however, we cannot assume the City
acquiesced.
Second, Slowik argues, without citation to authority, that
his claim should not be precluded because the Illinois state
court lacked jurisdiction to hear Shakman claims and to provide
the relief sought by him. This argument lacks merit. We have
specifically held that “Illinois litigants seeking circuit-court
review of administrative proceedings implicating events that
also give rise to a federal civil-rights claim must join that claim
with the judicial-review action in the circuit court,” as Illinois
circuit courts have jurisdiction over federal civil rights claims.
Walczak, 739 F.3d at 1017 (citations omitted). Therefore, we find
no equitable reason why res judicata should not apply to bar
Slowik’s Shakman claim.
12 Nos. 14-2977 and 14-3573
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of
the district courts.