these charges, defendants refused to permit plaintiff's attorney to remain at the hearing, despite plaintiff's entitlement to have his representative present. Following the pre-disciplinary hearing, defendants persisted in these charges, manufacturing false evidence against plaintiff, despite plaintiff's demonstration that the charges were baseless.
Defendants notified plaintiff in November that he would be suspended pending discharge based on these charges. Defendants terminated plaintiff in December 1994.
Under Rule 12(b)(6), a complaint can be dismissed for failure to state a claim "only if the plaintiff can not prove any set of facts upon which relief may be granted." Rankow v. First Chicago Corp., 870 F.2d 356, 357 n. 1 (7th Cir. 1989). Further, in considering a motion to dismiss, the court must "accept as true all facts alleged in the . . . complaint and . . . draw all reasonable inferences from the pleadings in favor of the [plaintiff]." Gillman v. Burlington Northern Railroad Co., 878 F.2d 1020, 1022 (7th Cir. 1989). It is unnecessary that a plaintiff correctly identify the governing legal theory of a claim, if the facts alleged in the complaint support a claim. Teumer v. General Motors Corp., 34 F.3d 542, 545 (7th Cir. 1994).
In defending against a motion to dismiss, a plaintiff may "allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved (a matter for trial) would entitle him to judgment." Early v. Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). Moreover, the Seventh Circuit recently held that in responding to a motion to dismiss, the nonmoving party may clarify the legal basis supporting his or her claims. Stransky v. Cummins Engine Co., 51 F.3d 1329, 1995 WL 144246 (7th Cir. 1995).
In plaintiff's response to defendants' motion to strike and dismiss, plaintiff concedes that Hirsch cannot be held liable under Title VII because he was not plaintiff's "employer." Consequently, defendant's motion to strike Counts I and II against Hirsch is granted. Accordingly, the only issue left for this court to consider is defendants' motion to dismiss Count III of the complaint.
In moving to dismiss plaintiff's § 1983 claim, defendants raise several arguments. First, they argue that plaintiff's § 1983 claim must be dismissed because plaintiff has failed to state a claim for a due process violation of his liberty interest in public employment. Second, defendants argue that plaintiff has failed to allege sufficiently a deprivation of property without due process because he has not alleged that he had a constitutionally recognized property interest in his employment. Defendants also argue that plaintiff's claim fails to rise to the level of a deprivation of property without due process because he has not alleged that he was denied process to which he was entitled. Finally, defendants argue that plaintiff's due process claim is deficient because an adequate post-deprivation remedy exists.
Defendants in this case blur the distinction between procedural due process claims and other constitutional injuries remedied under § 1983. As the Supreme Court explained in Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990), there are three types of § 1983 actions: (1) violation of rights under the Bill of Rights, (2) violations of substantive due process rights, and (3) violations of procedural due process rights. Consequently, defendants incorrectly focus on the existence of a liberty or property interest in public employment or, alternatively, the adequacy of process afforded plaintiff. As plaintiff clarifies in his response brief, his claim is a substantive, not a procedural, due process claim. The alleged unconstitutional act underlying the § 1983 claim is not the deprivation of a liberty or property interest or inadequate process, but rather defendants' retaliatory conduct itself.
The initial inquiry in every § 1983 action "must focus on whether the two essential elements of a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Only the second prong of this test is at issue in this case.
As the Seventh Circuit has recently held, "an allegation of deprivation of due process rights states a claim under both procedural and substantive due process." Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). In examining § 1983 claims, the Seventh Circuit has noted that "simply because they are not 'procedural due process' injuries, other constitutional harms may arise no matter how much process is afforded." Sherwin Manor Nursing Center v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir. 1994). "Substantive due process is a shorthand for the fact that the Supreme Court has interpreted the due process clause of the Fourteenth Amendment to confer certain substantive rights based mainly on the Bill of Rights." Toney-El v. Franzen, 777 F.2d 1224, 1227 (7th Cir. 1985) (citing Brown v. Brienen, 722 F.2d 360, 366 (7th Cir. 1983).
The Seventh Circuit has likewise held that "substantive rights" include those rights guaranteed in the Bill of Rights. Lawshe v. Simpson, 16 F.3d 1475, 1479 (7th Cir. 1994). Consequently, the Lawshe court held that a substantive due process claim against a state official who allegedly violated a plaintiff employee's free speech rights by retaliating against the plaintiff for his speech "would be possible because the First Amendment has been incorporated into the Fourteenth Amendment. . . ." Id.
The Seventh Circuit has specifically held that state retaliatory conduct constitutes a substantive due process violation if the retaliation was for exercising constitutional rights. Black, 22 F.3d 1395, 1402-03. In Black, the court held that retaliatory conduct by prison officials against an inmate for exercising his First Amendment rights constituted a violation of substantive due process. Id. at 1402. The court held that Black's complaint created an inference that the defendants retaliated against him for exercising his First Amendment rights by filing an administrative complaint against prison officials. Id. See also, Bryant v. Northeast Illinois Regional Commuter Railroad Corp., 809 F. Supp. 584 (N.D.Ill. 1992) (retaliatory discharge that violated First Amendment rights supported claim under § 1983 and the First and Fourteenth Amendments); Woerner v. Brzeczek, 519 F. Supp. 517, 522 (N.D. Ill. 1981) (complaint alleging retaliation for filing complaints of sexual harassment stated cause of action under § 1983 because such speech may be entitled to constitutional protection under First Amendment).
Under Black, in order to state a substantive due process claim under § 1983, the facts alleged in Count III must create a reasonable inference that defendants retaliated against plaintiff for exercising his First Amendment rights. While defendants emphasize in their reply brief that Count III fails to specifically mention the First Amendment, as discussed above this is not fatal to the complaint. Teumer, 34 F.3d at 545. At this stage of the proceedings, if the facts alleged support a reasonable inference that plaintiff's First Amendment rights may have been violated, the complaint adequately states a claim under § 1983. See Simmons v. Chicago Public Library, 860 F. Supp. 490, 493 (N.D. Ill. 1994) (while plaintiff's § 1983 claim completely failed to identify what constitutional right her employer's discriminatory practices allegedly violated, after "taking all reasonable inferences in her favor" the court held that plaintiff adequately pled a violation of equal protection of the laws).
A public employee's speech is protected by the First Amendment if: (1) it touches on a matter of public concern, and (2) the employee's interest in speaking outweighs any injury the speech could cause the employer's interest in promoting effective and efficient public service. Waters v. Churchill, U.S. , 115 S. Ct. 49, 130 L. Ed. 2d 10 (1994). Consequently, "not all speech by public employees is protected by the First Amendment such that constitutional concerns are raised if a public employer retaliates in response to that speech." Cliff v. Board of School Commissioners of Indianapolis, Ind., 42 F.3d 403, 409 (7th Cir. 1994).
In determining whether the speech is a matter of public concern, the "content, form, and context" of the speech must be considered. Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). It is generally the content of the speech that is the most important. Cliff, 42 F.3d at 409. However, even if the topic is deemed one of public import, that "does not automatically render [the employee's] remarks on that subject protected." Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994). Consequently, "the public concern element is lacking as a matter of law if speech concerns a subject of public interest but the expression addresses only the personal effect upon the employee.'" Cliff, 42 F.3d at 410 (quoting Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir. 1994)). The Seventh Circuit has emphasized that in determining whether speech is of public concern, the focus is on whether the employee's intent was to further a public or a purely private interest. Phares v. Gustafsson, 856 F.2d 1003, 1008 (7th Cir. 1988).
In Count III of his complaint, plaintiff alleges that beginning in June 1992, he objected to the defendants' racially discriminatory practices against African-American agents. Plaintiff advised his supervisors about his objections and threatened to file formal charges if the Department's racially discriminatory practices continued. Plaintiff spoke to his supervisors about the Department's potentially actionable discrimination before any of his own employment problems began. Additionally, plaintiff alleges that he also complained about defendants' discriminatory hiring practices. Since plaintiff was already employed by the Department, these complaints were clearly not a matter of private concern. In several paragraphs of Count III, plaintiff refers to his complaints of defendants' discriminatory practices against African-American agents as a group. Based on these allegations, the court finds that it is reasonable to infer that plaintiff's complaints about the Department's racially discriminatory conduct concerned other African-American agents generally. Consequently, the subject matter of plaintiff's allegations appears to be a matter of public concern. See Pollard v. City of Chicago, 643 F. Supp. 1244, 1249 (N.D.Ill. 1986) (speech identifying potentially actionable discrimination by government employees constitutes a matter of public concern).
Because it finds that plaintiff alleges speech that may touch on matters of public concern, the court must proceed to the second element of the Waters test: whether the public employer's interest in promoting the efficiency of public services outweighs the employee's interest in expression. Based on the above stated allegations, and giving plaintiff all favorable inferences, the court finds that plaintiff may be able to prove a set of facts entitling him to relief. See Pollard, 643 F. Supp. at 1249 (on a motion to dismiss public employee's First Amendment claim, it could not be said as a matter of law that the employer's interest in efficiency outweighs the employee's interest in expression, rather, "the Court need only note that the . . . [employee's] speech . . . would tend to aid the efficient operation of [the] Department"). Therefore, the court finds that at this stage of the proceedings, plaintiff has sufficiently stated a § 1983 claim that his constitutional rights were violated by defendants' alleged retaliatory conduct. Accordingly, defendants' motion to dismiss Count III for failure to state a claim under § 1983 is denied.
For the reasons set forth above, the court grants the motion to strike Counts I and II against Steven Hirsch, and denies defendants' motion to dismiss Count III.
ENTER: December 8, 1995.
Robert W. Gettleman
United States District Judge