United States District Court, N.D. Illinois, Eastern Division
December 1, 2004.
PAUL DEANE, Plaintiff,
STEVEN SKINNER and ROUND LAKE AREA PUBLIC LIBRARY DISTRICT, Defendants.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
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
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
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. 2000). There may
be evidence to support defendants' contention that the balance of
these factors tips in their favor. At this stage, however, we are
weighing allegations, not evidence, and those allegations do not
establish that defendants' interests prevail.
Next, Skinner argues that the affirmative defense of qualified
immunity shields him from liability. Government officials
performing discretionary functions have qualified immunity from
money damages if their actions do not violate "`clearly
established statutory or constitutional rights of which a
reasonable person would have known.'" Erwin v. Daley,
92 F.3d 521, 525 (7th Cir. 1996) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). "When considering a defense of qualified
immunity, two questions are pertinent: first, whether the
plaintiff has asserted a violation of a constitutional right at
all, and second, whether the plaintiff has demonstrated that the
applicable constitutional standards were clearly established at
the time in question." Id. We have already determined that
Deane has stated a First Amendment claim. Moreover, it was
clearly established in 2003 that a public employee cannot be
fired for exposing official misconduct, unless his speech unduly
disrupts the public employer's operations. Connick,
461 U.S. at 147-50 (employee's interest in speech on matter of public concern
must be weighed against employer's interest in efficient
operations); Spiegla v. Hull, 371 F.3d 928, 937 (7th Cir. 2004)
(citing cases from 1987 forward and stating "our cases have consistently held that speech alleging
government corruption and malfeasance is of public concern").
Thus, Skinner's motion to dismiss Count I on the grounds of
qualified immunity is denied.
Skinner's last argument is that the Court should dismiss
Deane's complaint because the Board, not Skinner, fired him.
Because he did not personally cause Deane's termination, Skinner
says, he cannot be held liable under section 1983. Though
personal liability under section 1983 is predicated on fault,
"[a]n official causes a constitutional violation if he sets in
motion a series of events that [he] knew or reasonably should
have known would cause others to deprive plaintiff of
constitutional rights." Brokaw v. Mercer County, 235 F.3d 1000,
1012 (7th Cir. 2000). That is just what Deane claims Skinner did.
(See Compl. ¶¶ 17-18 (alleging that Skinner induced the Board
to terminate Deane).) Accordingly, Skinner's motion to dismiss
Count I is denied. See Soderbeck v. Burnett County,
752 F.2d 285, 293 (7th Cir. 1985) (reversing directed verdict for members
of committee who had not terminated plaintiff but may have been
involved in the decision to do so because "[t]he important
question is whether [the committee] participated" in the
termination not whether it had the authority to make the
In Count II, Deane asserts a state-law retaliatory discharge
claim against the District. The District says that it is shielded
from this claim by the Local Governmental and Governmental
Employees Tort Immunity Act ("Tort Immunity Act"). The Tort
Immunity Act immunizes public employees, like Deane and the
Board, whose positions involve "the determination of policy or
the exercise of discretion," from liability for injuries
resulting from those acts. 745 ILL. COMP. STAT. 10/2-201.
Moreover, if a public employee is not liable on a claim, neither
is the local public entity that employs him. See 745 ILL. COMP.
STAT. 10/2-109 ("A local public entity is not liable for an
injury resulting from an act or omission of its employee where
the employee is not liable."). Immunity under section 2-201 will not apply, however, if the
injury results from an act that is ministerial in nature.
Trotter v. School Dist. 218, 733 N.E.2d 363, 374 (Ill.App.Ct.
2000). "Ministerial acts are those that a person performs on a
given state of facts, in a prescribed manner, in obedience to the
legal authority, and without reference to the official's
discretion as to the propriety of the act." Id. Deane alleges
that, at Skinner's urging, the Board fired him because it
determined that his "performance as Director of the Library was
either substandard or not suited to the District's needs."
(Compl. ¶ 17.) Thus, Deane has alleged that his termination was
an exercise of discretion. See Zinnermon v. City of Chicago,
209 F.Supp.2d 908, 911 (N.D. Ill. 2000) (holding that termination
of police officer was discretionary act).
Though he does not dispute the discretionary label, Deane says
the Tort Immunity Act still does not apply because it has an
exception for acts that are willful and wanton or based on
malicious motives. Because he has alleged that Skinner
"intentionally and maliciously . . . cause[d] the Board to
terminate [him]," (Compl. ¶ 17), Deane says his discharge claim
In support of his argument, Deane cites Youker v.
Schoenberger, 22 F.3d 163 (7th Cir. 1994). The Youker court
relied on Barth v. Board of Education of the City of Chicago,
490 N.E.2d 77 (Ill. 1986) to hold that immunity under section
2-201 "`does not extend to (1) a public employee's acts based on
corrupt or malicious motives, or (2) a public employee's willful
and wanton acts.'" Id. at 168 (quoting Barth,
490 N.E.2d at 81). Subsequently, however, in In re Loop Flood Litigation,
680 N.E.2d 265 (Ill. 1997), the supreme court overruled Barth. In
the words of the court:
The plain language of section 2-201 is unambiguous.
That provision does not contain an immunity exception
for willful and wanton misconduct. Where the
legislature has chosen to limit an immunity to cover
only negligence, it has unambiguously done so. Since
the legislature omitted such a limitation from the
plain language of section 2-201, then the legislature
must have intended to immunize liability for both
negligence and willful and wanton misconduct.
Id. at 273; see Village of Bloomingdale v. CDR Enters., Inc.,
752 N.E.2d 1090, 1097-98 (Ill. 2001) (holding that section 2-201
does not have an exception for acts committed with corrupt or
malicious motives). The Illinois Supreme Court's recent
pronouncements on the issue leave no room for debate: section
2-201 of the Tort Immunity Act contains no exceptions for acts
done willfully and wantonly or with corrupt or malicious motives.
Accordingly, both Skinner and the District are immune from
Deane's retaliatory discharge claim.
For the reasons set forth above, defendants' motion to dismiss
[doc. 6] is granted in part and denied in part. The motion is
granted as to the state-law retaliatory discharge claim asserted
against the District in Count II, which is dismissed with
prejudice. The motion is otherwise denied.