IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

James Principe,

Plaintiff,

v. Case No: 1-20-cv-01545

Vill. of Melrose Park, an Illinois Municipal Judge Manish S. Shah

Corp., Ronald Serpico, Christine Piemonte,
Jury Trial Demanded
Defendants.

PLAINTIFF’S RESPONSE IN OPPOSITION TO

DEFENDANTS’ PARTIAL RULE 12(b)(6) MOTION TO DISMISS

Plaintiff James Principe, through his undersigned counsel, respectfully submits this Response to

Defendants Village of Melrose Park, Ronald Serpico, and Christine Piemonte’s Partial Rule

12(b)(6) Motion to Dismiss (Dkt. 17). For the reasons stated herein, Defendants’ motion should

be denied.

INTRODUCTION AND BACKGROUND

Plaintiff alleges in his Complaint that he has been discriminated against, harassed, and

coerced into relinquishing certain fundamental rights afforded to him under the Americans with

Disabilities Act, Title VII, and other Illinois and federal laws. Plaintiff suffered this discrimination

and harassment at the hands of his employer, the Village of Melrose Park’s, and his supervisors –

with the decisions to harass and retaliate going as far up the chain of command as to the Village

of Melrose Park, Defendant Serpico. Plaintiff has stated, with proper detail, several instances in

which Defendants violated multiple federal and Illinois statutes by harassing, discriminating

against without proper justification.

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 Plaintiff worked for the Village of Melrose Park (“VMP”) for 22 years until his unlawful

termination in February 2020. (Complaint ¶14). Plaintiff has agoraphobia is disabled as defined

by the ADA, which substantially limits his major life activities. (Complaint ¶15-16). At all times,

Plaintiff fully performed to the expectations of his supervisor and employer. (Complaint ¶17).

Since approximately 2018, Defendant Serpico has been discriminating, harassing, retaliating

against Plaintiff by calling him a “retard,” a “fucking cunt,” and implying that because of his

disability, he had no other employment opportunities except for the VMP. (Complaint ¶31).

Defendant Christine Piemonte is the VMP’s human resources director. (Complaint ¶12),

Since 2018 and continuing until January 30, 2020, the working relationship between Plaintiff and

Defendant Piemonte has been deteriorating. Piemonte was making negative comments about

Plaintiff to his colleagues and then asking them to document any of Plaintiff’s purported

“misconduct.” (Complaint ¶36) Additionally, Piemonte made several false accusations about

Plaintiff including that he brought his gun to work and even pointed it at her (he is a valid CCL

holder and he never pointed his weapon at her). (Complaint ¶¶ 34-35, 37). Yet, Plaintiff was never

disciplined for that incident and remained at work for approximately two weeks after he allegedly

pointed a gun at Defendant Piemonte. Id.

After several escalating incidents involving Defendant Serpico and Principe, on January

30, 2020, Defendant Serpico went on a tirade of humiliating, abusive, and harassing epithets

directed at Plaintiff calling him a “retard,” “cunt” in front of several of his colleagues. (Complaint

¶¶51-55). This exacerbated Plaintiff’s anxiety forcing him to leave work early. (Complaint ¶¶51-

53). Principe reported the harassment to Defendant Piemonte on several occasions, but she failed

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to take any reasonable action to address the harassment or to stop it from recurring. (Complaint

¶57).

On belief, shortly after Plaintiff left work, Defendant Piemonte called the police with a

fabricated story that Plaintiff was threatening her with his gun and Village Hall was placed on

lockdown. (Complaint ¶34) Later that evening, Plaintiff was notified that he was being placed on

administrative leave for a myriad of reasons (Complaint ¶64). Plaintiff was also locked out of his

work computer and Email and his VMP-issued phone was turned off. (Complaint ¶66) The VMP

had also been conducting interviews of approximately 25 VMP employees inquiring about

Plaintiff’s alleged misconduct. Id. Plaintiff’s doctor placed him on medical leave, and

documentation was provided to the VMP. (Complaint ¶¶66-71) On or about February 14, 2020,

Plaintiff was interviewed by Del Galdo Law Group where he was asked generic questions with no

time frame and no specific instances of alleged misconduct. (Complaint ¶¶66 (a), 72-75). Within

a few hours after this interview, Plaintiff was terminated. (Complaint ¶¶75-81). On belief,

Plaintiff’s termination violated its own protocol by not following its progressive discipline policy

and by not handling his termination in accordance to the VMP Ordinance that governs

appointments and removals. (Complaint ¶¶76, 79). When Principe’s fiancée picked up his personal

effects, she saw Defendant Piemonte, who informed Principe’s fiancé that it was not her that

wanted to terminate Plaintiff, but Defendant Serpico. (Complaint ¶ 78).

Defendants move to dismiss the Plaintiff’s Complaint arguing that (1) Plaintiff failed to

exhaust his administrative remedies which is fatal to Plaintiff’s claims under the ADA, Title VII,

and IHRA (Counts I, II, and IV) and (2) that the complaint lacks allegations from which the

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individually named Defendants can he held liable for violations of the ADA, Title VII, IHRA, and

the Illinois Whistle-blower Act.

I. LEGAL STANDARD – Fed. R. Civ. P. 12(b)(6)

The purpose of a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6)

is to test the sufficiency of the complaint, not to decide its merits. See Gibson v. City of Chicago,

910 F.2d 1510, 1520 (7th Cir. 1990). On a motion to dismiss, the court accepts all well‐pleaded

allegations as true and draws all reasonable inferences in favor of the plaintiff. Jackson v. E.J.

Branch Corp., 176 F.3d 971, 977‐78 (7th Cir. 1999). All that is required is “a short and plain

statement of the claim showing that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2).

Plaintiff is not required to present evidence in his complaint. Hunt v. Dart, 07 C 6003, 2010 WL

300397, *4 (N.D. Ill. Jan. 22, 2010) (“Even after Twombly and Iqbal, a plaintiff doesn’t have to

come forward with evidence to survive a motion to dismiss.”). Rather, a “well-pleaded complaint

may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that

a recovery is very remote and unlikely.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).

Employment discrimination claims must adhere to a minimal pleading standard. See

Tamayo v. Blagojevich, 526 F.3d 1084. A complaint alleging employment discrimination “need

only aver that the employer instituted a (specified) adverse employment action against the plaintiff

on the basis of” a protected characteristic. Id. “A complaint need not allege all, or any, of the facts

logically entailed xby the claim, and it certainly need not include evidence.” Id. (internal citations

and quotations omitted); see also Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). In

discussing Bell Atlantic, the Seventh Circuit held: “We [] have cautioned, however, that Bell

Atlantic ‘must not be overread.’ The Seventh Circuit further noted, “Indeed, ‘[l]itigants are entitled

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to discovery before being put to their proof, and treating the allegations of the complaint as a

statement of the party’s proof leads to windy complaints and defeats the function of [Federal Rule

of Civil Procedure] Rule 8.’” Id. at 1081 (quoting Bennett, 153 F.3d at 519)).

Here, Plaintiff meets this standard. Plaintiff is not obligated to specifically allege all facts

to make out a prima facie case of retaliation under Federal Rule of Civil Procedure 8. See, e.g.,

Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly,

550 U.S. at 555) (“[s]pecific facts are not necessary; the statement need only give the defendant

fair notice of what the * * * claim is and the grounds upon which it rests.”); Swierkiewicz v.

Sorema, 534 U.S. 506, 512-513 (2002); Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163, 168 (1993) (holding no heightened pleading standard in Section

1983 civil rights cases).

In Tamayo, the Seventh Circuit reiterated: “We previously have stated, on numerous

occasions, that a plaintiff alleging employment discrimination . . . may allege these claims quite

generally.” 526 F.3d at 1081. “A complaint need not allege all, or any, of the facts logically entailed

xby the claim, and it certainly need not include evidence.” Id. (internal citations and quotations

omitted); see also Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). In discussing Bell

Atlantic, the Seventh Circuit held: “We [] have cautioned, however, that Bell Atlantic ‘must not

be overread.’ Although the opinion contains some language that could be read to suggest

otherwise, the Court in Bell Atlantic made clear that it did not, in fact, supplant the basic notice-

pleading standard.” Id. 1082-83 (quoting Limestone Dev. Corp. v. Village of Lemont, 520 F.3d

797, 803 (7th Cir. 2008) and Bell Atlantic, 127 S.Ct. at 1973 n. 14 (expressly disclaiming the

establishment of any “heightened pleading standard”)). The Seventh Circuit further noted,

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“Indeed, ‘[l]itigants are entitled to discovery before being put to their proof, and treating the

allegations of the complaint as a statement of the party’s proof leads to windy complaints and

defeats the function of [Federal Rule of Civil Procedure] Rule 8.’” Id. at 1081 (quoting Bennett,

153 F.3d at 519)). See Tamayo, 526 F.3d at 1085 (Title VII claim was sufficiently plead where

plaintiff alleged that “she has been subjected to adverse employment actions by Defendants on

account of her gender,” listed specific adverse employment actions, and she stated that defendants

treated her “differently than similarly situated male employees and exhibited discriminatory

treatment against [her] in the terms and conditions of her employment on account of [her] gender”).

The allegations simply have to put Defendants on notice of Plaintiff’s claims, which

Plaintiff’s Complaint does here. Similar to Tamayo, Plaintiff’s allegations put Defendants on

notice that he is bringing claims against the VMP for violations of the ADA, the IHRA, IWA, Title

VII Retaliation, against the individual defendants for IWA, and §1983 against Defendant Serpico.

Plaintiff also has properly pled where Plaintiff suffered adverse employment actions because of

his disability, he listed those adverse actions, and stated that he was treated differently based on

his disability. He further provided instances that illustrate he was facing discrimination and

retaliation. Moreover, Plaintiff provided claims against the VMP that its discriminatory and

retaliatory practices are widespread and occurred over an extended period of time and that the

actions were made by individuals with policymaking authority or acting within the scope of their

employment. (Complaint ¶¶104).

ARGUMENT

I. Counts I, II, and IV should not be dismissed because Plaintiff properly filed a charge with
the EEOC and requested a right to sue letter.

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 Principe has properly filed a charge with the EEOC and has also requested a right to sue

letter. The EEOC has responded and will issue the letter. However, through no fault of Principe,

the EEOC has still not sent the official notice. See Schnellbaecher v. Baskin Clothing Co., 887

F.2d 124, 128–29 (7th Cir.1989) (“Although the charge-filing requirement is not jurisdictional,

filing an EEOC charge and receiving a right-to-sue letter still is a prerequisite to suit unless the

claimant's failure to receive a right-to-sue letter is attributable to EEOC error.”).

Specifically, on or about January 30, 2020, Principe filed a charge with the Equal

Employment Opportunity Commission (“EEOC”) against the Village of Melrose Park stating

retaliation and discrimination under the ADA and Title VII. On February 14, 2020, Plaintiff

requested a right to sue letter from the EEOC (See Exhibit 1). Plaintiff did not receive a response

to that request. On March 2, 2020, Principe amended that charge to include his termination and

Defendants’ additional retaliatory acts. On April 9, 2020, Plaintiff re-requested his right to sue

letter, and received a response from the EEOC later that day requesting proof of that prior request,

which Plaintiff provided. (Exhibit 2). On May 13, 2020, EEOC Investigator Michaela McGlynn

responded that the request was received and being processed. (Exhibit 3). On June 17, 2020,

Plaintiff still had not received the Right to Sue letter and contacted Ms. McGlynn requesting an

update. (Exhibit 4). Later that day, Ms. McGlynn stated that she sent it to the Department of Justice

to be processed and has no way of tracking it. (Prior Ex. 4). Moreover, on or about April 8, 2020,

the EEOC temporarily suspended issuing right to sue letters because of CoVid-19. It is unclear

whether this has been part of the delay Plaintiff is experiencing. Despite these efforts, as of today’s

date, Plaintiff has not received the right to sue from the EEOC.

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 While it is true that a right to sue letter from the EEOC is a necessary step in the filing

process for an employment discrimination case, it is not a rule so rigid and technical that it cannot

be examined alongside the facts and circumstances surroundings its request and issue. See

Nicholas v. Milwaukee Bd. of Sch. Directors, No. 15-CV- 345-PP, 2015 WL 3490685, at *1 (E.D.

Wis. June 2, 2015) (“[C]ourts do not demand hyper-technical compliance with the filing

requirements of Title VII.”); see also Hill v. Vill. of Franklin Park, No. 07CV4335, 2008 WL

686256, at *3–4 (N.D. Ill. Mar. 11, 2008) (“[E]quity requires modifying the requirement of a right-

to-sue letter in [plaintiff]'s situation.”). This mere technicality, through no fault of the Plaintiff’s,

does not warrant dismissal. Thus, Defendants’ Motion to Dismiss Counts I, II, IV, V, and VI for

Plaintiff’s failure to exhaust his administrative relief should be denied.

II. Plaintiff has sufficiently pled claims for the ADA, Title VII, and IHRA against Defendant
VMP and an IWA claim against the Individual Defendants.

(A-C) Plaintiff Agrees that Individual Defendants Serpico and Piemonte are not individually
liable under ADA, Title VII, or IHRA.

Defendants assert that Plaintiff is improperly suing individual Defendants Serpico and

Piemonte under the ADA, IHRA, or Title VII (Counts I, II, and IV respectively). Plaintiff

acknowledges that the damages portions of these Counts contain a typographical error that could

make it appear that Plaintiff is asserting claims against the individual Defendants. As such,

Plaintiff agrees with the Defendant that Counts I, II, and IV should be dismissed as to the individual

Defendants Serpico and Piemonte only, leaving Counts I, II, and IV pending against the Defendant

Village of Melrose Park. Defendant VMP does not challenge the substantive claims of Counts I,

II, IV, V, or VI.

(D) Plaintiff’s IWA Claim Against the Individual Defendants Should Not be Dismissed as
Individual Defendants may be Liable Under the IWA.

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 A plain reading of the IWA unquestionably provides for individual liability. Defendants

have improperly interpreted well-established precedent, and the plain meaning of the IWA. The

IWA in pertinent part “prohibits an employer from retaliating against an employee for disclosing

information to a government or law enforcement agency, where the employee has reasonable

cause to believe that the information discloses a violation of State or federal law, rule, or

regulation.” Callahan v. Edgewater Care & Rehab. Center, Inc., 374 Ill. App. 3d 630, 632-633

(1st Dist. 2007); 740 ILCS § 174/15 (2012). Defendants have not directed this Court to the

proper section of the Act for controlling definitions of who is considered an “employer.”

A. The IWA Provides that Individuals May Be Employers.

Defendants next argue that the individual Defendants Serpico and Piemonte were not

Plaintiff’s “employer” within the meaning of the IWA. (Ds’ MTD p. 9). The Illinois Whistleblower

Act plainly allows for individual liability. 740 ILCS 174/5. The IWA defines an “employer” is:

“an individual . . . and any person acting within the scope of his or her authority express or implied

on behalf of those entities in dealing with its employees.” 740 ILCS 174/5 (emphasis added). The

plain language establishes that a cause of action may be brought against individuals. See also

Harris v. Illinois, 753 F. Supp. 2d 734, 742 (N.D. Ill 2010). Where the language of a statute is

plain, that interpretation is controlling. Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir. 1987) (“a

court need not look beyond the words to interpret a statute if the language is clear and

unambiguous”); Ayrault v. Pena, 866 F. Supp. 372, 375 (N.D. Ill. 1994) (holding “it is well settled

that the plain language of a statute is the best evidence of its meaning and the most reliable

indicator of congressional intent”).

The IWA provides for individual liability where the complaint alleged the individuals are

acting on behalf of the government employer, including as agents of the Employer. See Logan v.

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City of Chicago. Logan v. City of Chicago, et al., Case Number 17-cv-8312 (N.D. Ill., October 24,

2018). In Logan, the plaintiff, a Chicago employee, sued the City of Chicago and five individual

supervisors pursuant to IWA. Logan v. City of Chicago at ¶7; (Ds’ MTD p. 9). Here, the

Defendants move to dismiss on the same grounds in Logan as the individual Defendants do here.

The Logan court was persuaded by the plain language of the IWA, which provides that where

“individual Defendants . . . acted on behalf of the City,” then the Defendants “fall within the IWA’s

ambit” and within the statute as written. Logan at ¶¶25-26.

However, Plaintiff, throughout his complaint, states how Defendant Serpico participated

in, assisted, and ultimately made the decisions to retaliate and discriminate against Plaintiff.

Plaintiff similarly states how Defendant Piemonte participated in, assisted, and ultimately made

the decisions to retaliate and discriminate against Plaintiff Principe. See Dkt. 1, ¶¶82-83. At this

stage, Plaintiff need not establish personal involvement with each and every instance of

discrimination or retaliation. See Harris v. Illinois, 753 F. Supp. 2d 734, 738-39 (N.D. Ill. 2010)

(“Although Harris may not be able to establish [the individual defendants’] personal involvement

in each instance of retaliation or discrimination she complains of, drawing all inferences in her

favor at this stage, she has sufficiently alleged that [the individual defendants] were involved in

some capacity in the actions at issue.”). Furthermore, Plaintiff may ascribe acts to Defendants

collectively at this stage of proceedings. See Gonzalez v. Babasa, 02 C 6857, 2003 WL 21196245,

* 2 (N.D. Ill. May 19, 2003).

These allegations are sufficiently detailed to survive a motion to dismiss. As the Seventh Circuit

stated in Swanson v. Citibank, 614 F.3d 400, 404 (7th Cir. 2010) (emphasis in original):

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 “[T]he plaintiff must give enough details about the subject-matter of the case to present a
story that holds together. In other words, the court will ask itself could these things happen,
not did they happen. For cases governed only by Rule 8, it is not necessary to stack up
inferences side by side and allow the case to go forward only if the plaintiff’s inferences
seem more compelling than the opposing inferences. … A plaintiff who believes that she
has been passed over for a promotion because of her sex will be able to plead that she was
employed by Company X, that a promotion was offered, that she applied and was qualified
for it, and that the job went to someone else. That is an entirely plausible scenario, whether
or not it describes what “really” went on in this plaintiff’s case.”

Therefore, due to the fact that Plaintiff Principe has properly filed an EEOC charge and

requested a right to sue letter; provided sufficient facts and details to support each of his claims

against the VMP or individual defendants based on a series of protected activities and subsequent

adverse actions he suffered; and further alleging that Defendant Serpico, the Mayor of Melrose

Park with final policy-making authority, participated in and made the final decisions for all of the

allegations within, Defendants’ Motion to Dismiss Count V should be denied.

III. Plaintiff voluntarily withdraws this count and requests leave to replead it.

CONCLUSION

WHEREFORE, the Plaintiffs respectfully request that this Honorable Court deny the Defendants’

12(b)(6) Motion to Dismiss, and for any other relief deemed just and proper. If the Court is inclined

to grant Defendants’ Motion in whole or part, the Plaintiffs pray for an opportunity to amend their

Complaint.

Dated: June 19, 2020

Respectfully submitted,

James Principe

/s Gianna Scatchell

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 /s Cass T. Casper
__________________________________
Plaintiff’s Attorneys

Gianna R. Scatchell Cass T. Casper, Esq.

LAW OFFICES OF GIANNA SCATCHELL TALON LAW, LLC
360 W. Hubbard Street, Suite 1404 105 West Madison Street, Suite 1350
Chicago, Illinois 60654 Chicago, Illinois 60602
P: (312) 248-3303 P: (312) 351-2478
F: (312) 312-9616 F: (312) 276-4930
E: gia@lawfirm.gs E: ctc@talonlaw.com

CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that the foregoing Complaint was filed using ECF on
June 19, 2020.

/s/ Gianna Scatchell

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