A motion to dismiss tests the sufficiency of the complaint, not the
merits of the suit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th
Cir. 1990). When considering a motion to dismiss, the court views all
facts alleged in the complaint, as well as any inferences reasonably
drawn therefrom, in the light most favorable to the plaintiff. Doherty,
75 F.3d at 322. This Court will grant a motion to dismiss only if it
appears beyond doubt that the plaintiff can prove no set of facts entitling
her to relief. Venture Assocs. Corp. v. Zenith Data Sys. Corp.,
987 F.2d 429, 432 (7th Cir. 1993). See also Hishon v. King & Spalding,
467 U.S. 69 (1984); Conley v. Gibson, 355 U.S. 41, 45-56 (1957).
Under Federal Rule of Civil Procedure 12(f), the court may strike
"from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter." "Immaterial matter is
defined as that which has no relationship to the cause of action pled."
VPHI v. National Educ. Training Group, No. 94 C 5559, 1995 WL 51405, at
*3 (N.D. Ill. Jan. 20, 1995). Motions to strike are generally not
favored, and the court will not strike matter from a complaint "unless it
is clear that it can have no possible bearing on the subject matter of
the litigation." Patel v. Board of Governors of State Colleges and
Universities, No. 92 C 8300, 1995 WL 573418, at *3 (N.D. Ill. Sept. 22,
1995). See also Tektel, Inc. v. Maier, 813 F. Supp. 1331, 1334 (N.D.
Ill. 1992). "Furthermore, pleadings are generally not stricken unless the
moving party will be prejudiced otherwise." Patel, 1995 WL 573418, at
*3. "Prejudice results when the matter complained of has the effect of
confusing the issue or where it is so lengthy and complex that it places
an undue burden on the responding party." 5 Wright & Miller, Federal
Practice and Procedure, § 1382.
I. Counts I and III - Municipal Liability under § 1983 and § 1981
The Board attacks the sufficiency of Burke's claims in Counts I, II,
and III, claiming that she has not set forth the elements necessary to
establish municipal liability in order to maintain a § 1983 or §
1981 action against the Board. Municipalities, including school boards,
may not be held liable under § 1983 simply because they employed the
tortfeasor acting within the scope of his or her employment. Cornfield
v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993).
Instead, a municipality may be held liable when it has an
unconstitutional custom or policy. Brokaw v. Mercer County, 235 F.3d 1000,
1013 (7th Cir. 2000). A "custom" or "policy" can take one of three
forms: (1) an express policy that, when enforced, causes a constitutional
deprivation; (2) a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled
as to constitute a "custom or usage" with the force of law; or (3) an
allegation that the constitutional injury was caused by a person with
final policy-making authority. Id. (citing McTigue v. City of Chicago,
60 F.3d 381, 382 (7th Cir. 1995)). Thus, "custom or policy" may be
established by "an allegation that the constitutional injury was caused
by a person with `final policymaking authority.'" McTigue, 60 F.3d at
382. See also Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 735 (7th
Cir. 1994) ("It is true that a single act or decision of a final
policymaker can establish municipal policy.").
Because Burke has identified neither an "express policy" nor a "custom
usage with the force of law," she must establish that one or more of
the individuals named as a defendant had final policy-making authority.
Burke points out that Vallas, the Board's Chief Executive Officer, is
such an individual, and we agree. Whether an individual has "final
policy-making authority" is a question of state law. Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 737 (1989). According to the Illinois
School Code, "[t]he [Chicago School Reform Board of] Trustees and their
chief executive officer are empowered and directed to . . . enact
policies and procedures that ensure the system runs in an ethical as well
as efficient manner." 105 ILCS 5/34-3.3. See also Townsend v. Vallas,
No. 98 C 8080, 1999 WL 409996. at *5 (N.D. Ill. June 7, 1999) (involving
a § 1983 claim by two Chicago public school employees in which "the
Board concede[d] . . . that Vallas is a policy-making official").
Therefore, in viewing the facts in the light most favorable to Burke, we
find that she has adequately established municipal liability to survive
Defendants' motion to dismiss as to Counts I and III.
II. Count II — Due Process Claim
Count II alleges that the Board deprived Burke of her property and
liberty interests in her employment without due process, in violation of
the Fourteenth Amendment. In making a due process claim, a plaintiff
first must establish that she possessed a protectable life, liberty, or
property interest as a matter of substantive law. Moulton v. Vigo County,
150 F.3d 801, 804 (7th Cir. 1998). In this case, Burke has adequately
pled a denial of a liberty interest in her job. Therefore, the motion to
dismiss Count II must be denied.
A. Property Interest
Burke asserts that she had a property interest in her job. The Seventh
Circuit, however, has held that, although a substantive property interest
in one's job might arise if the terms of the employment are governed by
contract, there is no such interest in an at-will employment situation.
Harris v. City of Auburn, 27 F.3d 1284, 1286 (7th Cir. 1994) ("Our cases
make clear that an at-will employee does not have a constitutionally
protected property right in his continued employment."). See also Campbell
v. City of Champaign, 940 F.2d 1111, 1112 (7th Cir. 1991); McMillian v.
Svetanoff, 878 F.2d 186, 191-92 (7th Cir. 1989). Therefore, Burke must
assert the deprivation of a liberty interest to survive a motion to
B. Liberty Interest
Defendants argue that Burke's due process claim is subject to dismissal
because she has not identified a protectable liberty interest of which
she was deprived. To maintain her claim of deprivation of a liberty
interest, Burke must show that: (1) she was stigmatized by Defendants'
conduct; (2) the stigmatizing information was publicly disclosed; and (3)
she suffered a tangible loss of other employment opportunities as a
result of public disclosure. Harris, 27 F.3d at 1286. Put another way,
Burke must allege "defamation plus" loss of employment opportunities.
Davis v. City of Chicago, 53 F.3d 801, 804 (7th Cir. 1995).
Defendants' conduct is sufficiently stigmatizing if Burke's "good
name, reputation, honor, or integrity" is implicated, greatly impairing
her ability to find new employment in that field. See Lashbrook v.
Oerkfitz, 65 F.3d 1339, 1348-49 (7th Cir. 1995). Significantly
stigmatizing accusations include "such charges as immorality,
dishonesty, alcoholism, disloyalty, Communism, or subversive acts." Id.
at 1348. Here, Burke was accused of fabricating or even causing sex
crimes between students on school premises. In addition, Burke
accused of attendance book fraud and stealing her grade book. These
charges are extremely serious — some rising to the level of
criminal behavior. Burke was threatened with discipline, including
termination, for insubordination in continuing to report sex crimes.
These accusations greatly diminish Burke's reputation as a teacher and
make it virtually impossible for her to find future employment in the
education field. In addition, Burke makes a threshold showing that the
stigmatizing information was publicly disclosed by claiming that she was
given negative job references.
Finally, Burke has adequately pled that she suffered a tangible loss of
employment opportunities as a result of the stigmatizing accusations.
Specifically, Burke alleges constructive discharge, and even conclusory
allegations must be taken as true for purposes of a motion to dismiss.
She also claims that she was given at least one negative reference, which
deprived her of future job opportunities. Thus, a liberty interest has
been established, satisfying the minimal requirements to survive a
12(b)(6) motion. Therefore, the Board's motion to dismiss Count II is
III. Count V and Official Capacity Claims
Burke concedes that the Seventh Circuit endorses the dismissal of
official capacity suits against government officials where the government
employer is also named as a defendant. Burke also concedes that 740 ILCS
175/4(b) fails to recognize a private cause of action for whistleblower
activities. Accordingly, the Board's motion to dismiss is granted as to
Count V and the official capacity claims.
IV. The Board's Motion to Strike
A. Statute of Limitations
The Board asks this Court to strike any of Burke's claims challenging
actions taken by the Board and known to Burke prior to May 24, 1998, the
date two years preceding the filing of the original complaint on May 24,
2000. Actions under § 1983 are governed by the personal injury
statute of limitations of the state where the injury occurred. Joy
Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 716-17 (7th Cir.
1994). Therefore, Illinois' two-year statute of limitations for personal
injury actions is applicable to the case at hand. 735 ILCS 5/13-202. See
also Smith v. City of Chicago Heights, 951 F.2d 834, 837 (7th Cir.
1991). The limitations period begins when a plaintiff knew or should have
known that her constitutional rights were violated. Wilson v. Giesen,
956 F.2d 738, 740 (7th Cir. 1992). In other words, "the limitations
period is calculated by counting forward from the date when [the
plaintiffs] claim accrued." Love v. Sheahan, No. 99 C 1243, 2001 WL
315228, at *9 (N.D. Ill. Mar. 30, 2001). Because neither party has
suggested an accrual date when Burke knew or should have known that her
procedural due process rights were violated, additional facts are needed
to determine when her claim accrued. Drawing all inferences in Burke's
favor at this stage of the litigation, it is not beyond doubt that Burke
can prove no set of facts establishing that her claim is within the
period of limitations. Therefore, Defendants' motion is denied without
prejudice as to the statute of limitations issue.
B. Paragraph 17 of the Second Amended Complaint
Defendants also move to strike Paragraph 17 of the complaint, claiming
that it recites generalized, vague and undated events, making it
difficult to admit or deny the allegations contained therein. In the
alternative, the Board moves for a more definite statement pursuant to
Federal Rule of Civil Procedure 12(e). We think the latter course of
action is appropriate
here. A 12(e) motion "shall point out the defects
complained of and the details desired." Id. The Board points to the lack
of dates and identities of the alleged perpetrators of the events listed
in Paragraph 17. In order for Defendants to be able to respond to
Paragraph 17, Burke must identify the individual(s) to whom the
allegations are directed. In addition, Burke must specify dates where she
has not done so, namely subparagraphs 17(b), (e), (f), (g) and (h).
Accordingly, the 12(e) motion is granted.
Because Burke has adequately pled municipal liability and the existence
of a liberty interest in her employment, the Board's motion to dismiss
Counts I, II, and III is denied. (R. 26-1.) In light of Burke's
concessions, the Board's motion to dismiss Count V and the suits against
the individual defendants in their official capacities is granted. (Id.)
The Board's motion to strike all events occurring prior to May 24, 1998,
as well as the Board's motion to strike Paragraph 17 of Burke's complaint
are denied. (R. 26-2.) The Board's motion for a more definite statement
is granted as to subparagraphs 17(b), (e), (f), (g). and (h) of the
complaint. (Id.) Burke's attorney is given until July 30, 2001 to amend
subparagraphs 17(b). (e). (f), (g) and (h) of the complaint.
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