Court Dismisses Chicago Firefighter’s Discrimination Claims But Retaliation Claims May Proceed

The discrimination claims brought by a Chicago firefighter have been dismissed, but the US District Court for the Northern District of Illinois will allow her claims of retaliation to proceed. Lee Ann McKay filed suit against the city, the retirement board and five individual officers in 2021.

McKay brought her claims pro se alleging gender discrimination, race discrimination, national origin discrimination, violation of her Fourth Amendment rights, intentional infliction of emotional distress (IIED), invasion of privacy – intrusion upon seclusion, and conspiracy.

The defendants moved for summary judgment on all counts. US District Court Judge Nancy L. Maldonado granted those requests on all counts except for McKay’s claims of retaliation. As explained in Judge Maldonado’s decision:

  • McKay has failed to state a claim for sex discrimination under Title VII.
  • McKay alleges that “[m]any firehouses do not have separate facilities for men and women, and at others, the Facilities for women are unequal or not equally accessible to those available to the men.”
  • McKay, however, does not allege that this is the case at the firehouses where she has worked, nor does she provide any details about treatment she received on the basis of her sex that would give the City sufficient notice on how to investigate her claim.
  • Her statement that “[t]he disparities in the facilities also discourage other women from applying to work as City of Chicago firefighters and paramedics” further suggests that she is complaining of poor employment practices within the CFD that affect women generally, not anything specific to herself.
  • McKay… must be able to put the City on notice of her claim by identifying the adverse employment action that she herself has faced on the basis of her sex.
  • McKay must at least broadly describe what discriminatory conduct implicated her personally.
  • There are two allegations in the EEOC charges attached to the [second amended complaint] that may relate to sex discrimination: McKay alleges that a bed and mattress were removed from the women’s quarter at Engine 1 and that a hostile work environment was created “with respect to the signage and use of washrooms.”
  • But removal of a mattress and a bed, without more context, does not constitute an adverse employment action.
  • Moreover, McKay provides no details about the nature or content of the signage that would allow the Court to reasonably infer that the signs about washrooms created a hostile work environment.
  • McKay alleges that after she filed her charge of discrimination with the EEOC in February 29, 2016, she suffered a number of retaliatory actions from the City.
  • To plead a Title VII retaliation claim, a plaintiff must allege that she engaged in a statutorily protected activity and was consequently subjected to an adverse employment action.
  • The fact that the Court holds that McKay failed to state a claim for gender discrimination does not preclude her retaliation claim.
  • The City’s argument… is that McKay’s lengthy list of allegedly adverse employment actions are “petty slights and minor annoyances,” and that she thus fails to allege that she was subject to an adverse employment action.
  • Nevertheless, the Court finds that McKay has alleged sufficient adverse employment actions for the purposes of pleading a retaliation claim.
  • McKay alleges that she was blocked or denied the opportunity to work in certain battalions or at certain firehouses.
  • McKay also alleges that in November or December of 2016, “[o]vertime forms were ‘lost’ through the Chain of Command” and that the CFD failed to properly and timely pay her overtime compensation.
  • These allegedly adverse actions implicate McKay’s work setting, her job opportunities, and potentially her compensation.
  • McKay’s drug test constitutes another basis for her Title VII retaliation claim. Courts have held … that a drug test is an adverse action if it “is not performed in a routine fashion following the regular and legitimate practices of the employer but is conducted in a manner that harasses or humiliates employees.”
  • McKay is… alleging that the City conducted the drug test to harass or humiliate her. She argues that the City had no reason to drug test her, that it did so for the sole reason of retaliating against her because she had previously filed complaints and initiated a lawsuit against the City, and that it implied she tested positive for substances to her co-workers.
  • Aside from her sex discrimination claim, McKay also brings a Title VII claim for race and national origin discrimination.
  • McKay argues that the City shows preferential treatment to “Black and Hispanic” personnel and, as a result, she was not promoted to Lieutenant in a timely fashion and was thus precluded from sitting for the Captain’s exam.
  • The Court finds that McKay falls short in alleging that she was qualified for the position she wanted and that the job went to someone else because of her unidentified race or national origin.
  • McKay argues that the City and the Individual Defendants subjected her to a drug test that violated her Fourth and Fourteenth Amendment rights
  • The Court ultimately concludes that although McKay has sufficiently alleged a Fourth Amendment violation, she fails to allege that she had a “clearly established right” at the time of the alleged constitutional deprivation. Accordingly, the Individual Defendants are entitled to qualified immunity on McKay’s Fourth Amendment claim.
  • The Court now turns to McKay’s IIED claim. A plaintiff stating an IIED claim under Illinois law must allege that (1) the defendant’s conduct was “truly extreme and outrageous;” (2) the defendant intended or knew that there was “at least a high probability that [their] conduct would cause severe emotional distress;” (3) the defendant’s conduct actually caused “severe emotional distress.”
  • Based on the foregoing, the Court concludes that McKay has not stated a claim for IIED. The Court’s review of the entire SAC reveals no allegations that suggest extreme and outrageous conduct. Although the Court held that the loss of her overtime and the change in her responsibilities could be the basis for her Title VII retaliation claim, these actions do not “go beyond all bounds of decency.” The same is true for McKay’s drug test.
  • Moreover, McKay does not allege that any of the Defendants coerced her into doing something illegal. Instead, McKay’s allegations more appropriately fall into the category of “everyday job stresses,” which is not to minimize their impact, so much as to clarify that they do not rise to the high bar of “extreme and outrageous conduct.”
  • Lastly… McKay states a claim for intrusion upon seclusion.
  • The Court concludes that the Illinois Tort Immunity Act bars McKay’s intrusion upon seclusion claim. Under the Illinois Tort Immunity Act, civil actions commenced against local entities or employees of a local entity “must be commenced within one year from the date that the injury was received or the cause of action accrued.”
  • McKay alleges that she was subjected to the drug test on February 2, 2019, and she initiated this action on January 28, 2021. The City and Individual Defendants’ motion to dismiss McKay’s intrusion upon seclusion claim is granted.

Here is a copy of the decision.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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