Judge sets Illinois treasurer's motion to dismiss harassment suit for briefing; ruling not likely before June

A federal judge today set a briefing schedule on Illinois Treasurer Dan Rutherford’s request to dismiss a former employee’s lawsuit accusing him of sexual harassment and political retaliation.

Before she doled out the dates that mean a ruling probably won't come before June, U.S. District Judge Joan Humphrey Lefkow appeared to question the merits of the retaliation allegation Edmund Michalowski lodged in February.

Filed about a month before the Republican gubernatorial primary that Rutherford went on to lose, Michalowski’s two-count complaint also names the treasurer’s chief of staff, Kyle Ham, as a defendant. Rutherford and Ham filed motions to dismiss the suit on Monday, asserting it fails to state a claim under federal rules of civil procedure.

At today’s brief status hearing, Lefkow asked Michalowski’s attorney, Alice Christine Svenson, to respond to the dismissal requests, specifically the defendants’ contentions that no political retaliation occurred under the First Amendment.

Michalowski, who worked for the treasurer’s office from 2011 until February, asserts he resigned as a result of the defendants’ conduct, which the suit describes as forced outside political work and sexual harassment from the treasurer, as well as retaliation after complaining about it to Ham.

Rutherford and Ham argued in their recent filings that Michalowski’s retaliation claim fails to meet the required standards because it doesn’t allege he engaged in activity protected by the First Amendment or show a link between his purportedly protected activity and any deprivation.

Citing a 1999 Seventh Circuit ruling over employee speech, they asserted in their motions that “Michalowski’s allegations are more in line with those of a ‘disgruntled public employee’; speaking on an issue of ‘personal interest’ by complaining of issues related to ‘office politics’ than those of a citizen raising an issue of public concern.”

After saying she “wasn’t prepared to actually argue” the motions at today’s hearing, Svenson told Lefkow she believes the suit sufficiently shows her client’s allegations were a matter of public concern, given that they dealt with political work for a state campaign.

“How is that not a matter of a public concern?” she asked.

Following what sounded like a brief chuckle, Lefkow told Svenson “I’m asking the questions here.”

The judge went on to explain that typically when an employee makes a retaliation allegation, he claims he lost his job after speaking out against his boss. Lefkow likely said this in reference to the fact that Michalowski was not fired, but resigned.

Svenson told Lefkow her client suffered adverse job consequences after complaining about being pressured to engage in political work and those consequences forced him to resign. Michalowski, a licensed attorney who served as director of community affairs and marketing for the treasurer's office, now works at the Cook County Recorder of Deeds.

Lefkow said she wasn’t sure Svenson set that out in the complaint, which notes that Michalowski didn't get a raise or promotion and was berated in front of others in retaliation for complaining.

Although not discussed at today’s hearing, the suit also includes a sexual harassment and gender discrimination count that accuses Rutherford of “inappropriately grabbing [Michalowski’s] genitals; repeatedly ‘hitting on’ [him]’” and “making overt promises to Michalowski regarding his job if [he] ‘went along’ with Rutherford’s advances.”

Michalowski contends Rutherford subjected him to this, as well as offensive remarks and “unwarranted scrutiny and criticism,” from April 2011 to December 2013.

In his motion to dismiss, Rutherford “denies that the conduct Michalowski described in the complaint occurred” and points out the “suspect timing of this lawsuit and the motive behind it.” He also publicly denied the allegations at a press conference he held on the day the suit was filed.

Following today’s hearing, Svenson said the proceeding “went as expected” and that “we expect to defeat the motions to dismiss.”

Lefkow set a May 22 deadline for Svenson to respond to the dismissal requests and gave the defendants' attorneys until June 5 to submit their reply.

Rutherford’s motion to dismiss was submitted by Daniel T. Fahner, Robert L. Shuftan and Bilal Zaheer of Edwards Wildman Palmer LLP in Chicago, all of whom have all been appointed special assistant attorneys general.

Ham’s motion was filed by R. Douglas Rees, S. Ann Walls and Rachel Laird Tidwell-Neal with the Illinois Attorney General’s office.