United States District Court, N.D. Illinois
March 17, 2004.
ALEKSANDAR MIHAILOVIC and SOCCER MADE IN AMERICA, INC., Plaintiffs,
CARMEN SOLDATO, Mayor of Darien, MAGGIE KRONIEK, NANCY CAMPAGNOLO, AL CIMAGLIA, KURT MACH, and DARIEN DYNAMO SOCCER CLUB Defendants
The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Aleksandar Mihailovic and Soccer Made in America have
filed suit against Carmen Soldato; the Mayor of Darien; Nancy Compagnolo,
a member of the Darien Park District Board; the Darien Dynamo Soccer
Club; Kurt Mach, president of the club; Al Cimaglia, a club board member;
and Maggie Kroniek, a Darien resident. Plaintiffs allege that the
defendants conspired to violate their due process and equal protection
rights in relation to their employment contract with the Darien Park
District. Plaintiffs also assert several state law claims, including
defamation, intentional interference with business, conspiracy, and
breach of contract. Plaintiffs settled with Campagnolo, and she has been
dismissed from the case. Soldato, Mach, Cimaglia, and Kroniek have moved
to dismiss pursuant to Rule 12(b)(6). For the reasons stated below, the
motions are granted except as to Count 2, which remains as to defendant
The following facts are taken from plaintiff's amended complaint, which
the Court accepts as true for the purposes of defendants' motions to
In the year 2000, Mihailovic and SMIA (which we will collectively refer
to as Mihailovic) entered into a contract with the Darien Park District
to act as the director of soccer operations and marketing director for
the Darien Sportsplex. Mihailovic also entered into a contract with the
Darien Dynamo Soccer Club, a private not for profit entity which sponsors
youth soccer teams, to provide services as the director of coaching.
Starting in 2002, Mach and Cimaglia began to publicly criticize
Mihailovic for "bringing in Mexicans" to the soccer club. In March 2003,
Kroniek and Cimaglia made statements to the Darien Park District Board
and to the public that Mihailovic was engaging in a "conflict of
interest" and claiming that he had engaged in other inappropriate or
unlawful acts. Shortly thereafter, Kroniek expressed concerns publicly
and to the Park District Board about the financial future and community
reputation of the Sportsplex. In doing so, Kroniek made several negative
statements regarding Mihailovic, including allegations that he had been
banned from the NCAA for foul play and bringing in players from other
countries; was kicked out of another park district for "cheating them out
of money"; was not playing by the rules; was engaging in a "conflict of
interest;" and doing things that "were not proper."
Soldato made negative statements about Mihailovic at the April 2003
Park District Board meeting, specifically that the payments Mihailovic
had received were "in question" and that he should be "looked into," that
"we all know about his background," "that there was all kinds of double
dipping going on," that Mihailovic was violating the rules, and that "we
people dealing with kids that have any question about his background."
In May 2003, Soldato made statements to the Park District Board to the
effect that Mihailovic was "feathering his nest." Shortly thereafter,
Soldato made statements to the Board and the public that the Park
District "had hired a guy that was thrown out of college for violations"
and "has conflicts all over the place." Soldato told the Board that he
was going to keep coming to the meetings until they "let the
professionals run [the Sportsplex]" and that "you will think I am
harassing you." Around June 2003, Soldato began airing videotapes on the
local cable television channel from the Park District Board meetings in
which he and the other defendants made the previously referenced
statements regarding Mihailovic.
Mihailovic alleges that because of Soldato's position with the City of
Darien, and due to the defendants' statements (all of which Mihailovic
says were false), the Park District decided to terminate plaintiffs'
contract. Plaintiffs also allege that the Park District acted as it did
due to Mihailovic's national origin (Yugoslavian) and his attempt to
diversify the club by bringing in minorities. Plaintiffs filed the
instant suit alleging that because of defendants' actions they have
essentially been blackballed from the community, and have been unable to
pursue their chosen occupation.
Dismissal under Rule 12(b)(6) is appropriate only if it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim that would entitle him to relief. Conley v. Gibson,
355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Del. Ass'n,
187 F.3d 690, 695 (7th Cir. 1999). In considering the motion, the court
accepts as true all well pleaded facts alleged in the complaint and draws
reasonable inferences from those facts in favor of the plaintiff.
Jackson v. E. J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999);
Zemke v. City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996).
Count 1 (procedural due process)
Mihailovic claims that the defendants deprived him of both liberty and
property without due process of law. The former claim is that the
allegedly defamatory statements by Soldato, Mach, Cimaglia, and Kroniek,
combined with the Park District Board's termination of his contract,
deprived him of a liberty interest by stigmatizing him in a way that
prevents him from obtaining future employment in his chosen field.
A person does not have a protectible liberty interest in his
reputation, see Paul v. Davis, 424 U.S. 693, 701 (1976), and
thus simple defamation by the government does not deprive a person of
liberty within the meaning of the Due Process Clause, even when it
impairs one's future employment prospects. See, e.g., Siegert v.
Gilley, 500 U.S. 226, 234 (1991); Paul, 424 U.S. at 697.
Rather, the constitution's procedural safeguards in this context,
the right to a name-clearing hearing are invoked only when the
injury resulting from the defamation is combined with the alteration of
the person's legal status, such as the termination of public employment.
Paul, 424 U.S. at 708-09, 710; see also, e.g., Hojnacki v.
Klein-Acosta, 285 F.3d 544, 548 (7th Cir. 2002).
Conversely, a termination of employment is actionable under the
Fourteenth Amendment as a deprivation of liberty only "if it is
accompanied by a publicly announced reason that impugns the employee's
moral character or implies dishonesty or other job-related moral
turpitude." Omosegbon v. Wells, 335 F.3d 668, 675 (7th Cir.
2003) (quoting Hedrich v. Bd. of Regents of Univ. of Wis. Sys.,
274 F.3d 1174, 1184 (7th Cir. 2001)). In other words, the
defamation must be "incident to the termination of [the plaintiff's]
employment." Siegert v. Gilley, 500 U.S. 226, 234 (1991). The
defamatory statement must be published "in the context of termination."
McMath v. City of Gary, Ind., 976 F.2d 1026, 1032 (7th Cir.
Such is not the case here. Mihailovic does not allege that the Park
District Board made or communicated any defamatory statements about him
incident to his termination. Rather, his contention is that Soldato and
the others made defamatory statements, and that the Park District relied
on these to terminate him. That is not sufficient. Due process does not
require a hearing in this context "when there is no public disclosure of
the reasons for the discharge." Bishop v. Wood, 426 U.S. 341,
348 (1976). See also Codd v. Velger, 429 U.S. 624, 628 (1977)
(per curiam) (due process requires hearing on discharge of
government employee "if the employer creates and disseminates a false and
defamatory impression about the employee in connection with his
For these reasons, Mihailovic's claim that he was deprived of liberty
fails to state a claim upon which relief may be granted, and we need not
address the defendants' remaining arguments in support of dismissal of
Mihailovic's other due process claim is that he was deprived of
property, specifically his employment contract with the Park District,
without due process. Mihailovic's ability to maintain this claim depends
on whether he had a property right in continued employment. See
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 538 (1985), citing
Board of Regents v. Roth, 408 U.S. 564, 576-78(1972).
Property interests are created not by the Constitution, but by rules or
understandings that stem from some other source, such as state law.
Id. In the employment context, a property
interest can be created in one of two ways: "1) by an independent source
such as state law securing certain benefits; or 2) by a clearly implied
promise of continued employment." Phelan v. City of Chicago,
347 F.3d 679, 681 (7th Cir. 2003) (quoting Shlay v. Montgomery,
802 F.2d 918, 921 (7th Cir. 1986)). Mihailovic's complaint does not
contain allegations sufficient to support a claim under either of these
alternatives. The former theory typically involves allegations that the
plaintiff's employment contract permitted termination only for cause.
See, e.g., Dixon v. City of New Richmond, 334 F.3d 691, 694
(7th Cir. 2003). No such allegation is found in the complaint. Absent a
contrary showing, an employment agreement is presumed to be terminable
at-will, that is, at any time and for any reason. Corcoran v.
Chicago Park District, 875 F.2d 609, 612 (7th Cir. 1989). At-will
employees, generally speaking, do not hold a property interest in their
employment that is protected by the Due Process Clause, see, e.g.,
Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 624 (7th Cir.
2002), though as indicated above the Seventh Circuit appears to have
recognized a narrow exception for cases in which the at-will employee
has "clearly implied promise in their continued employment." See
Phelan, 347 F.3d at 682. But no such allegation appears in the
complaint in this case.
Contrary to defendants' argument, the concept of notice pleading does
not require a plaintiff who relies on an employment contract in a case
such as this one to attach it to the complaint. But the plaintiff must at
least make allegations sufficient to reflect the existence of a property
interest that is subject to due process protection. Such an allegation is
conspicuously absent from Mihailovic's complaint. His claim of
deprivation of property without due process must therefore be dismissed.
For these reasons, the Court grants defendants' motions to dismiss
Count 1, plaintiffs'
due process claim.*fn1
Count 2 (equal protection)
In Count 2, Mihailovic alleges that the defendants conspired to deprive
him of equal protection of the laws. This appears to be a claim that
defendants acted based on Mihailovic's national origin and because he had
recruited persons of Mexican origin to play on the soccer club, and that
he was singled out for arbitrary and differential treatment as a "class
of one."*fn2 Defendants' arguments regarding this claim primarily
concern whether they can be said to have acted under color of law.
The equal protection clause "can be violated only by conduct that may
fairly be characterized as `state action.'" Lugar v. Edmondson Oil
Co., 457 U.S. 922, 924 (1982). And liability under 42 U.S.C. § 1983
requires a showing that the defendant deprived the defendant of a
constitutional right under "color of law." E.g., Adickes v. S.H.
Kress & Co., 398 U.S. 144, 150 (1970). The color-of-law and
state action requirements exclude from the reach of the Equal Protection
Clause and § 1983 conduct that is merely private, no matter how
discriminatory or wrongful it may be. See, e.g., Blum v.
Yaretsky, 457 U.S. 991, 1002 (1982).
Action is taken under color of law "when it involves a misuse of power,
`possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.'" Honaker v.
Smith, 256 F.3d 477, 484 (7th Cir. 2001) (quoting West v.
487 U.S. 42, 49 (1988)). Not every act by a state or local government
official is an action under color of law; to qualify the act must be
"related in some way to the performance of the duties of the
[governmental] office," Id.
The color of law requirement does not require the defendant to be a
government official. It is enough that he is a willful participant in
joint action with the State or its agents. "Private persons, jointly
engaged with state officials in the challenged action, are acting `under
color' of law for purposes of § 1983 actions." Dennis v.
Sparks, 449 U.S. 24, 27-28 (1980).
Soldato's comments at Park District Board meetings were not actions
under color of law. There is nothing in the complaint that so much as
hints that his opportunity to speak at the meetings depended upon his
official position as Mayor of Darien. Rather, like Mach, Cimaglia, and
Kroniek, Soldato spoke at what appears to have been the public-comment
portion of the Board's meetings. Thus to the extent plaintiffs' claim
depends on an allegation that Soldato was a state actor, it cannot
succeed. Likewise, if plaintiffs' claim is simply that Mach, Cimaglia,
and Kroniek conspired with Soldato to orchestrate negative public
commentary, the claim fails.
Rather, only the Park District Board, the governmental entity with
which Mihailovic claims to have had a contractual relationship, was in a
position to deny him equal protection of the laws. Thus a conspiracy or
joint action between Soldato, Mach, Cimaglia, and Kroniek would be
insufficient to impose liability on them under § 1983. These
defendants may be held liable under § 1983 only if, and to the
extent, they acted jointly with the Board or, perhaps, one of the Board's
members to deny Mihailovic equal protection.
The mere fact that the Board acted in response or reaction to Soldato,
Mach, Cimaglia, and/or Kroniek's comments referenced in the complaint
does not constitute joint action or
conspiracy. The essence of conspiracy is an agreement. See, e.g.,
Hampton v. Hanrahan, 600 F.2d 600, 624 (7th Cir. 1979), rev'd
in part on other grounds, 446 U.S. 754 (1980). Action merely taken
in response to a comment, argument, petition, or remonstrance is not
conspiracy or joint action. To draw an analogy, when a judge rules in a
litigant's favor based on an argument the litigant makes in court, that
does not make the judge and the litigant co-conspirators or joint actors.
See Dennis, 449 U.S. at 28.
The fairest reading of plaintiffs' complaint is that Mach, Cimaglia,
and Kroniek are claimed to have acted jointly only with Soldato, not with
Campagnolo or other members of the Park District Board. See,
e.g., Am. Cplt. ¶¶ 43, 45, 29, 39, 42. For the reasons indicated
above, this is insufficient to impose liability on those defendants under
§ 1983. Matters are different with regard to Soldato; there is a
square allegation that he conspired directly with Campagnolo. See
id. ¶ 46. This allegation is sufficient under Dennis to
state a claim that Soldato acted under color of law. In this regard, it
appears Mihailovic contends that Soldato may have acted behind the scenes
to put the arm on the Board or at least some of its members to terminate
Mihailovic's contract. If so, that would likewise be sufficient to impose
liability on Soldato.
We turn finally to Soldato's claim that he is entitled to "absolute
immunity" from § 1983 liability for his actions. The argument is
frivolous. In support of his contention, Soldato cites, first of all, a
case that discusses the immunity that applies to actions taken by
legislators in their legislative capacity. See Soldato Mot. at
5. That has nothing to do with this case. Soldato also relies on the
Illinois Tort Immunity Act, see id. at 6, but that has nothing
to do with immunity from federal liability under § 1983. Finally, and
frankly rather bizzarely, Soldato relies on the doctrine of state
defamation law of absolute privilege (not immunity),
see id. at 4 (incorporating
Argument II1.B), which again has nothing to do with § 1983 liability.
The Court finds it hard to imagine how Soldato's counsel could possibly
believe that this state law privilege doctrine can be transmogrified into
a rule of immunity from federal liability.
Counts 3-5 defamation, intentional interference, and
Soldato's claim of absolute privilege and immunity under the Tort
Immunity Act fares no better with regard to Mihailovic's state law
defamation claim (Count 3). As indicated earlier, the complaint, fairly
read, attacks Soldato's public comments that cannot fairly be said to
have been made as part of his official duties as Mayor of Darien. The
Court recognizes that plaintiffs also sought to impose liability on
Soldato on the opposite theory (which we have rejected), but federal
pleading rules specifically permit a party to plead in the alternative.
Soldato's argument, however, that his statements are entitled to
absolute privilege from liability for state law defamation, because they
were made in a legislative forum, is well taken. Whether a defamatory
statement is protected by absolute privilege is question of law for the
court. Layne v. Builders Pluming Supply Company, Inc.,
210 Ill. App.3d 966, 969, 569 N.E.2d 1104, 1106 (1991), citing Thomas v.
Petrulis, 125 Ill. App.3d 415, 417, 465 N.E.2d 1059, 1060 (1984).
Absolute privilege extends to statements made by private citizens, as
well as public officials, as part of legislative and judicial
proceedings, see Joseph v. Collins, 212 Ill. App.3d 200, 211,
649 N.E.2d 964, 972 (1995), whether federal, state, or municipal.
Larson v. Doner, 32 Ill. App.2d 471, 474, 178 N.E.2d 399
(1961). The defense of privilege rests on the notion that "conduct which
otherwise would be actionable [should] escape liability because the
defendant is acting in furtherance of some interest of social importance,
which is entitled to protection even at the expense of uncompensated harm
to the plaintiffs reputation." Krueger v. Lewis, 342 Ill, App.3d
467, 473, 794 N.E.2d 970, 974-75, (2003) (quoting W. Keeton, Prosser
& Keeton on Torts, § 114, at 815 (5th ed. 1984)).
The defendants' statements are claimed to have been made at one or more
meetings of the Park District Board, which were legislative proceedings.
See Park District of Highland Park v. Becker, 60 Ill. App.2d 463,
468, 208 N.E.2d 621, 623-24 (1965); see also Steier v. Batavia
Park District, 283 Ill. App.3d 968, 978, 670 N.E.2d 1215, 1223
(1996). Moreover, their alleged statements all relate to payments that
were made by the Park District to the plaintiffs as well as plaintiffs'
continued employment by the Park District. Public comments to a
legislative body concerning the conduct of its public business are the
type of conduct that the privilege described above is designed to
protect. Citizens ought not be chilled from making public comments to
legislative bodies by fear of being subjected to suit for defamation.
Plaintiffs' state law defamation claims are therefore dismissed.*fn3
Under Illinois law, privileges that bar defamation actions also extend
to related tort actions based on the same conduct, such as conspiracy and
intentional interference with business relations. Geick v. Kay,
236 Ill. App.3d 868, 869-70, 603 N.E.2d 121, 129-30 (1992). For this
reason, Counts 4 and 5 of the amended complaint must be dismissed as
For the reasons stated above, the Court grants in part and denies in
part the motions to dismiss filed by Soldato [docket # 11-1] and by
defendants Mach, Cimaglia, and Kroniek [docket #21-1]. Counts 1, 3, 4 and
5 are dismissed as to all defendants. Count 2 is dismissed as to
defendants Mach; Cimaglia, and Kroniek, but not as to Soldato. Soldato
is directed to answer Count 2 on or before March 24, 2004.