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December 1, 2004.

PAUL DEANE, Plaintiff,

The opinion of the court was delivered by: RONALD GUZMAN, District Judge


Paul Deane ("Deane") has sued Steven Skinner ("Skinner"), individually, and Round Lake Area Public Library District ("the District") for violating his First Amendment rights and unlawfully discharging him. The case is before the Court on defendants' Federal Rule of Civil Procedure ("Rule") 12(b)(6) motion to dismiss. For the reasons provided in this Memorandum Opinion and Order, the motion is granted in part and denied in part.

The Legal Standard

  On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Factual Background

  The District operates the Round Lake Area Public Library ("the Library"). (Compl. ¶ 5.) The Library functions under rules and regulations set by the District's Board of Trustees ("the Board"). (Id.) Defendant Skinner is President of the Board. (Id. ¶ 2.)

  In 1998, the District hired Deane as the Library's Head of Technical Services and Local Area Network Manager, and he satisfactorily worked in that capacity until December 2000. (Id. ¶ 6.) In January 2001, the District promoted Deane to Director of the Library. (Id. ¶ 7.) Deane's new responsibilities included making personnel and planning decisions, budgeting, overseeing Library materials and keeping the Board apprised of his activities. (Id. ¶¶ 7-8.) As Director of the Library, Deane reported to, and was supervised by, the Board. (Id. ¶ 8.)

  In late 2003, the Board decided to place a referendum for a District tax increase on the March 2004, Lake County, Illinois election ballot. (Id. ¶ 9.) In November 2003, Skinner told Deane to mail material in favor of the referendum to each registered voter in the District. (Id. ¶ 10.) Toward that end, Skinner sent Deane an e-mail containing the name, address, phone number, political party affiliation and voting history of each registered voter in the District ("voter data"). (Id. ¶ 11.)

  Deane thought it was illegal to release the voter data to anyone other than registered state political committees without the permission of the Illinois State Board of Elections. (Id. ¶ 14.) Because the District was not a state political committee, on January 13, 2004, Deane told Skinner in an e-mail that the District should not use the voter data unless the District took the necessary steps to legitimize its use. (Id. ¶¶ 15-16.)

  Approximately three weeks later, Skinner persuaded the Board to hold private meetings to discuss Deane's job performance. (Id. ¶ 17.) On February 7, 2004, the Board, including Skinner, voted to terminate Deane's employment effective February 9, 2004. (Id. ¶ 18.) Discussion

  In Count I, Deane alleges that Skinner sought his termination in retaliation for Deane's exercise of free speech. To state a First Amendment retaliation claim, Deane must allege that: (1) the implicated speech was constitutionally protected; and (2) Skinner retaliated against him because of that speech. See Button v. Kibby-Brown, 146 F.3d 526, 529 (7th Cir. 1998). In the public employment context, speech is constitutionally protected if it "addresse[s] a matter of public concern" and the employee's "interest in his expression . . . outweigh[s] . . . any injury the speech could cause to the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. (internal quotation marks and citation omitted).

  The threshold question, whether the speech is a matter of public concern, is a matter of law for the court. Id. The court bases its determination on "the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48 (1983). In addition, we must take into account "the point of the speech in question: was it the employee's point to bring wrongdoing to light? Or was the point to further some purely private interest?" Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985).

  Though Deane's January 2003 e-mail questioned the legality of using the voter data, ostensibly a public matter, Skinner says that the form, context and purpose of Deane's speech establish that he was furthering a private interest. Deane challenged the voter data in an e-mail that was sent only to Skinner, the supervisor who had assigned him the direct mailing task, not to the media, the public at large or even the other members of the Library Board. (Compl. ¶ 16.) Moreover, he sent the e-mail on January 13, 2003, more than two months after he had received the mailing assignment and less than two months before the scheduled referendum. (Id. ¶¶ 9, 11, 16.) Skinner says that the timing of the e-mail establishes that its purpose was to protect Deane from the consequences of his procrastination, not to air his concerns about the voter data. Thus, Skinner argues, Deane's e-mail addresses a purely private concern and is not constitutionally protected.

  That Deane's e-mail was simply an attempt to avoid rebuke from his boss is one plausible interpretation of the complaint. But it is not the only one. It is equally reasonable to infer that Deane was threatening to go public with Skinner's purportedly illegal conduct if he persisted in using the data.*fn1 Viewed in that light, Deane's e-mail implicated the paradigm public interest: exposing the wrongdoing of a government official. McGreal v. Ostrov, 368 F.3d 657, 679-80 (7th Cir. 2004) (noting that speech that exposes government corruption "`has generally been accorded the greatest level of First Amendment protection.'" (quoting Jefferson v. Ambroz, 90 F.3d 1291, 1298 (7th Cir. 1996) (Rovner, J., concurring)). Because Deane's allegations do not conclusively establish that his e-mail addressed a purely private matter, defendants' motion to dismiss on that basis is denied. Trejo v. Shoben, 319 F.3d 878, 885 (7th Cir. 2003) ("[W]here the employer brings a motion to dismiss the employee's free speech claim on the basis of the pleadings rather than on the facts in the record, the speech may be presumed to involve a matter of public concern if it touches upon any matter for which there is potentially a public interest.") (internal quotation marks and citation omitted) (emphasis in original).

  Even if the e-mail addresses a matter of public concern, defendants say that Deane's First Amendment claim must still be dismissed because his interest in that expression is outweighed by the District's interest in promoting the efficiency of its public services. Among the factors we must consider to determine whether the employer's interest is paramount are:
(1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee's ability to perform [his] responsibilities; (4) the time, place and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decisionmaking; and (7) whether the speaker should be regarded as a member of the general public.
Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. ...

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