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ROJICEK v. COMMUNITY CONSOL. SCH. DIST. 15

May 17, 1995

MARLENE ROJICEK, Plaintiff,
v.
COMMUNITY CONSOLIDATED SCHOOL DISTRICT 15, and LAURA R. CRANE, NANCY B. MURTAUGH, SUZANNE H. BASSI, TERRY FRANCL, LOUIS A. SANDS, PATSY M. STREET, and KURT UNVERRICHT, individually and in their official capacities, and JOHN CONYERS, GEORGE LINGEL and LINDA VASS, individually and in their official capacities, Defendants.



The opinion of the court was delivered by: JAMES H. ALESIA

 Plaintiff, Marlene Rojicek ("Rojicek"), filed a five-count amended complaint against the defendants relating to her discharge from employment as a payroll specialist at Community Consolidated School District 15 ("School District 15"). Pursuant to FED. R. CIV. P. 12(b)(6), defendants have moved to dismiss plaintiff's Amended Complaint in its entirety. For the reasons set forth below, the defendants' motion is granted in part and denied in part.

 I. FACTS

 The following is a summary of the facts in the light most favorable to the plaintiff. On November 8, 1993, Rojicek was hired by defendant School District 15 as a payroll specialist. Throughout her employment, Rojicek performed her job duties in a manner that met and exceeded the legitimate expectations of the School District and the individual defendants. In fact, at some time during July, 1994, Rojicek was informed that her immediate supervisor, defendant George Lingel ("Lingel"), had recommended her for a bonus.

 Soon thereafter, however, Rojicek discovered that Lingel's earnings were overstated in reports to the Illinois Teacher Retirement System ("TRS"), the statewide plan which provides retirement benefits to Illinois public school teachers. Rojicek noted that Lingel's salary, as reported to the TRS, mistakenly included the School District's Medicare contribution on Lingel's behalf. Although Rojicek called the overstatement to Lingel's attention, Lingel instructed Rojicek to enter the salary as it had been entered the previous year. About a month later, after Rojicek completed the TRS report, she again asked Lingel to correct his salary on the report. Lingel refused and expressly directed Rojicek to report the overstated earnings. On August 15, 1994, the date the report had to be filed, Rojicek informed Lingel that she would not sign the report because she believed it contained fraudulent information. After this, Lingel signed it himself and later stated to Rojicek that "I have serious concerns whether you can be a team player."

 On August 18, 1994, the date bonuses were paid, Rojicek did not receive one. In response, she took the matter to defendant John Conyers, the School District's Superintendent. Conyers, however, refused to discuss the matter with her, only telling her that he would discuss the bonus list with Lingel and defendant Linda Vass (Lingel's supervisor).

 The following day, August 19, 1994, Vass and Lingel summoned Rojicek to a meeting, at which they criticized her job performance and informed her that they planned to investigate various aspects of her job performance. On August 23, 1994, Lingel wrote a memo to Rojicek again criticizing her job performance. Soon thereafter, on September 2, 1994, Lingel wrote a memo to Rojicek informing her that she was suspended with pay pending the outcome of his recommendation that the District 15 Board of Education terminate her employment at its September 14, 1994, meeting. In the same memorandum, Lingel informed Rojicek of her right to a pre-termination hearing at which she would be allowed to present her side of the matter.

 Prior to her pre-termination hearing, Rojicek received a letter from James Franczek, the attorney representing School District 15. The letter similarly informed Rojicek of her right to a pre-termination hearing and stated that the hearing was being "called pursuant to, and in accord with, the District's responsibilities under the United States Supreme Court's decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985)." Rojicek's pre-termination hearing was held on September 14, 1994. At the hearing, Rojicek described in detail the sequence of events involving Lingel's reporting of his salary to TRS. Later that evening, the Board of Education (all of whom are named individually as defendants in the case) accepted the recommendation of defendants Crane, Murtaugh and Conyers and terminated Rojicek's employment with the School District.

 At some point prior to September 14, 1994, School District 15 ordered a classified ad in the Daily Herald, a local newspaper. The ad sought applicants for plaintiff's job. As the ad ran in the morning editions of the Daily Herald on September 14, 1994, it predated Rojicek's hearing and actual termination.

 II. STANDARD OF REVIEW

 A Rule 12(b)(6) motion to dismiss for failure to state a claim is granted only where it is beyond doubt that the plaintiff is unable to prove any set of facts that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The Court must take all well pleaded facts and allegations as true, and must view them in the light most favorable to the plaintiff. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). Furthermore, the plaintiff is entitled to all reasonable inferences that may be drawn from the complaint. Id.

 III. ANALYSIS

 Plaintiff's Amended Complaint alleges the following five claims against the defendants: (1) intentional deprivation of plaintiff's right to freedom of speech; (2) intentional deprivation of plaintiff's property interest in continued employment; (3) intentional deprivation of property rights in violation of her right to due process; (4) conspiracy to deprive plaintiff of her constitutional rights of freedom of speech and property; and (5) retaliatory discharge. Defendants have filed a motion to dismiss each of the claims. The court considers each in turn.

 A. Intentional Deprivation of Plaintiff's Right to Freedom of Speech

 In Count I under 42 U.S.C. ยง 1983, plaintiff claims that the termination violated her First Amendment rights because her speech was protected under Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). Defendants, meanwhile, contend that plaintiff's allegations fail to establish that her speech addressed a matter of public concern. Defendants argue that Rojicek's speech was solely a matter of private concern, related to her dissatisfaction or disagreement with office procedures, to her interest in obtaining a bonus, and to ...


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