citizen or a disgruntled employee whose statements were primarily of personal interest. Colburn, 973 F.2d at 585 (citing Connick, 461 U.S. at 147, 103 S. Ct. at 1690).
When viewed in the light most favorable to plaintiff, the content, context, and form of plaintiff's statements indicate that they were made as a matter of public concern. Similarly, plaintiff's motivation in making the statements seems to have been based on her general public concern regarding the misuse of public monies. In fact, plaintiff's initial objection to Lingel's TRS overstatement was in no sense self-serving. That is, she had little or nothing to gain by bringing the issue to Lingel's attention. Rather, the general public (and Lingel himself) would seem to have been the main beneficiaries of plaintiff's initial actions.
In addition, plaintiff was not acting to further her private interests when she raised the issue to Lingel the second time, on August 8, 1994. Had she been acting out of personal concern, she most likely would have refrained from raising the issue again with Lingel. Instead, plaintiff acted against her own best interest by further pursuing the matter. In other words, plaintiff understood that Lingel did not wish to change his inaccurate salary report to TRS. Yet, out of public concern, plaintiff took additional actions in an attempt to correct the misstatement.
Defendants are correct in stating that plaintiff tried to inform the School District Superintendent, Conyers, about Lingel's alleged TRS misstatement only after the revocation of her bonus. However, from a legal standpoint, it is irrelevant that plaintiff did not originally attempt to discuss the issue with anyone other than Lingel. As a matter of law, the private expression of one's views is constitutionally protected. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 413, 99 S. Ct. 693, 695, 58 L. Ed. 2d 619 (1979).
Furthermore, the fact that plaintiff attempted to speak with Conyers only after her bonus was revoked, does not affirmatively establish that she was acting out of a private concern at the time. In fact, plaintiff's brief meeting with Conyers took place only three days after she informed Lingel that she would not sign the fraudulent report and only three days after Lingel allegedly signed it himself. In light of plaintiff's previous actions regarding the issue, one can reasonably infer that plaintiff's attempted meeting with Conyers was simply a continuation of her attempts to address a public matter. Had plaintiff not previously acted to address the problem, one might then reasonably infer that her attempted meeting with Conyers was based on a private concern and was thus not constitutionally protected.
Therefore, the alleged facts, taken as true and viewed in the light most favorable to plaintiff, do not indicate that plaintiff's actions overwhelmingly resulted from her dissatisfaction or disagreement with office procedures, from her interest in obtaining a bonus, or from her interest in saving her job. Rather, the allegations sufficiently indicate that plaintiff's speech was a matter of public concern. Consequently, defendants' motion to dismiss Count I of the Amended Complaint is denied.
B. Intentional Deprivation of Rojicek's Property Interest in Continued Employment
In Count II, plaintiff alleges that her right to a termination hearing indicates that she had a property interest in continued employment with the School District and the attendant benefits of that employment. Plaintiff claims that defendants deprived her of such property interests by terminating her employment. Defendants, meanwhile, contend that plaintiff's Count II does not allege sufficient facts to establish that plaintiff had a property interest in her job. Because the Court agrees with the defendants, Count II is dismissed.
Property interests are not created by the Constitution but rather are created, and their dimensions defined, by existing rules or understandings that stem from an independent source such as state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). In Roth, the Supreme Court stated that "to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. [She] must have more than a unilateral expectation of it. [She] must, instead, have a legitimate claim of entitlement to it." Id. Under Illinois law, employment contracts are presumed to be at will; that is, terminable by either party for good reason, bad reason, or no reason at all. Tolmie v. United Parcel Service, Inc., 930 F.2d 579, 580 (7th Cir. 1991), citing Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482, 505 N.E.2d 314, 317-18, 106 Ill. Dec. 8 (Ill. 1987). This general Illinois rule can only be overcome by demonstrating that the parties contracted with the intention of creating a property interest in her employment. Duldulao, 505 N.E.2d at 318.
Plaintiff first contends that the existence of a protectable property interest in her employment with the School District is inferred from the fact that the District granted her a hearing prior to terminating her employment. However, the Seventh Circuit has held that an employer's decision to provide a pre-termination hearing to an employee does not, in and of itself, give that employee a protected property interest under the Fourteenth Amendment. Lyznicki v. Board of Education, School Dist. 167, Cook County, Illinois, 707 F.2d 949, 952 (7th Cir. 1983), citing Endicott v. Huddleston, 644 F.2d 1208, 1214 (7th Cir. 1980). In Lyznicki the court stated that "[a] mere right to notice and a hearing ... does not change the essential character of the employment relationship as one of employment at will; it does not convert it into a form of tenure employment and thus create a Fourteenth Amendment property right." Lyznicki, 707 F.2d at 952.
Plaintiff additionally contends that Illinois law acts to grant her a property interest in employment with the School District. Specifically, plaintiff contends that the Illinois Supreme Court's decision in Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876, 52 Ill. Dec. 13 (Ill. 1981), created an exception to the general rule that employment in Illinois is "at-will." In Palmatter, the Illinois Supreme Court recognized the tort of retaliatory discharge under Illinois law. In doing so, the court held that an at-will employee who is dismissed in violation of a clearly mandated public policy may bring a retaliatory discharge cause of action against his former employer. Palmatter, 421 N.E.2d at 881. This decision did not serve to alter Illinois' at-will employment rule, nor did it serve to create the existence of a property interest in employment for all individuals who have been terminated in violation of a clearly mandated public policy.
As a result, this Court cannot infer any reasonable facts that would seemingly grant plaintiff a protected property interest. Therefore, defendants' motion to dismiss Count II of the Amended Complaint is granted.
C. Intentional Deprivation of Property Rights in Violation of Rojicek's Right to Due Process
In Count III of her Amended Complaint, plaintiff argues that she was deprived of her property interest in employment with the School District without due process of law. Before determining whether an individual is entitled to due process, either substantive or procedural, he or she must first establish the existence of a liberty or property interest. Smith v. Board of Education of City of Chicago, 853 F.2d 517, 520 (7th Cir. 1988). If the plaintiff does not have a protectable property or liberty interest, she is not entitled to the procedural safeguards guaranteed by the Due Process Clause of the Fourteenth Amendment, and her due process claim should be properly dismissed. Ratliff v. City of Milwaukee, 795 F.2d 612, 624 (7th Cir. 1986).
As stated above in relation to Count II, plaintiff's Amended Complaint fails to allege any facts which may be construed to establish the existence of a protected property interest in continued employment. Furthermore, plaintiff makes no showing of a liberty interest. Consequently, there is no need for this Court to determine whether the School District's actions conformed with the due process requirements of the Fourteenth Amendment. Therefore, defendants' motion to dismiss Count III is granted.
D. Conspiracy to Deprive Rojicek of Her Constitutional Rights of Freedom of Speech and Property
In Count IV of her Amended Complaint, plaintiff alleges that the defendants acted in a conspiracy to violate her civil rights. To prove such a conspiracy in violation of § 1985(3), plaintiff must show "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). The Seventh Circuit has also added:
Since its decision in Griffin, the Court has not expressly provided a remedy to a group or class other than blacks. The import of both Griffin and Scott is that the legislative history of § 1985(3) does not support extending the statute to include conspiracies other than those motivated by a racial, class-based animus against "Negroes and their supporters."
Grimes v. Smith, 776 F.2d 1359, 1366 (7th Cir. 1985); see also Schroeder v. City of Rolling Meadows, 1994 U.S. Dist. LEXIS 16571, 1994 WL 659214, at *6 (N.D. Ill. Nov. 2, 1994). Because the plaintiff, in her Amended Complaint, has not alleged such a racial or class-based animus, Count IV is dismissed.
E. Retaliatory Discharge and the Illinois Tort Immunity Act
In Count V, plaintiff alleges that she was fired from her employment in retaliation for her actions relating to Lingel's alleged TRS overstatement. In response, defendants argue that Count V is barred by the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Act"), 745 ILCS 10/1-101, et seq. While immunity under the Act does extend to negligent acts, "it does not extend to willful and wanton conduct or to acts by public employees based on corrupt or malicious motives." Youker v. Schoenenberger, 763 F. Supp. 361, 366 (N.D. Ill. 1991). Here, the plaintiff has alleged more than mere negligence. She claims that her employment was terminated in retaliation for informing Lingel of an overstatement in the TRS report and refusing to go along with it. Assuming the allegations are true for purposes of the Rule 12(b)(6) motion, the defendants' actions constitute willful and wanton conduct. Accordingly, defendants' motion to dismiss Count V is denied.
F. Qualified Immunity
In their motion, defendants argue that Counts I through IV should be dismissed as to the individual defendants based on qualified immunity. "Under the doctrine of qualified immunity, public officials performing discretionary functions are protected against suits for damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Doe v. Bobbitt, 881 F.2d 510, 511 (7th Cir. 1989), cert. denied, 495 U.S. 956, 109 L. Ed. 2d 742, 110 S. Ct. 2560 (1990) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). Furthermore, the proper time to resolve a qualified immunity issue is at summary judgment. See Auriemma v. Rice, 910 F.2d 1449, 1452 (7th Cir. 1990), cert. denied, 501 U.S. 1204, 111 S. Ct. 2796, 115 L. Ed. 2d 970 (1991). Given the allegations made in the complaint and the early stage of the proceedings in which the court finds itself, the defendants' motion to dismiss based on qualified immunity is denied.
G. Punitive Damages
Counts I through V of plaintiff's Amended Complaint request punitive damages against the defendants. In her response to the defendants' motion to dismiss, the plaintiff clarifies that she does not seek punitive damages from defendant School District 15. As such, her Amended Complaint is construed as requesting punitive damages only against the remaining defendants in their individual capacities.
The other defendants now contend that plaintiff's request for punitive damages should be dismissed because plaintiff has failed to allege the requisite conduct required for the recovery of such damages in Counts I through IV. The law is clear that punitive damages under § 1983 are recoverable against public officials in their individual capacities only if the individual's conduct involves reckless or callous indifference to the plaintiff's federally protected rights or if the conduct was based upon an evil motive or intent. Smith v. Wade, 461 U.S. 30, 51, 103 S. Ct. 1625, 1637, 75 L. Ed. 2d 632 (1983). Assuming the plaintiff's allegations are true, this court holds that plaintiff has alleged sufficient facts that the remaining defendants acted with callous indifference or with evil motive or intent. Accordingly, defendants' motion to dismiss the punitive damages claims in Counts I through IV against the remaining defendants in their individual capacities is denied.
Defendants also claim that the punitive damages claim in Count V against the remaining defendants should be dismissed. Defendants argue that the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq. bars such relief. Punitive damages are available against the individual defendants if they acted willfully and wantonly. See Koenig v. Board of Education of Elementary School District 102, 1993 U.S. Dist. LEXIS 17967, 1993 WL 532472 (N.D. Ill. Dec. 21, 1993). As held previously, plaintiff has made such allegations. Accordingly, the punitive damages claim against the individual defendants with respect to Count V stands.
Defendants' motion to dismiss plaintiff's Amended Complaint is granted in part and denied in part. Defendants' motion to dismiss Counts II, III, and IV is granted. Counts II, III, and IV are dismissed with prejudice. Defendants' motion to dismiss Counts I and V is denied. Defendants' motion to dismiss the punitive damages claims with respect to School District 15 is granted as to all counts. Defendants' motion to dismiss the punitive damages claims with respect to the remaining individual defendants is denied as to all counts.
Date: May 17, 1995
JAMES H. ALESIA
United States District Judge
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