United States District Court, N.D. Illinois, Eastern Division
May 12, 2005.
FRANK A. HAUENSCHILD, Plaintiff,
CITY OF HARVEY, ILLINOIS, an Illinois municipal corporation, a body politic; ERIK KELLOGG, Mayor of the City of Harvey, Illinois; FRANK PIEKARSKI, JOSEPH WHITTINGTON, DARYL CRUDUP, THOMAS DANTZLER, DONALD NESBIT, RONALD WATERS, in their official capacities as members of the City of Harvey; and WILLIAM C. BELL, JR., Public Safety Fire Administrator, in his individual and in official capacity as an employee of the City of Harvey, Defendants.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Defendants
Erik Kellogg, Frank Piekarski, Joseph Wittington, Daryl Crudup,
Thomas Dantzler, Donald Nesbit, Ronald Waters, William Bell, and
the City of Harvey (collectively referred to as the "Defendants")
to dismiss Counts I-III of the complaint of Plaintiff Frank
Hauenschild pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth
below, the motion is denied.
Because this case comes to us in the context of a motion to
dismiss, we take all well-pleaded facts alleged in the complaint
as true. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Hauenschild served on the Harvey Fire Department from 1977 until
early 2004. For his last 12 years as a firefighter, he held the
rank of captain and served as shift commander. In those
positions, he was responsible for management tasks such as
scheduling and supervising firefighters who served during his
shift, as well as responding to fire calls. Until December 2003,
Hauenschild had a consistent shift of 24 hours on duty followed
by 48 hours off duty, referred to as a 24/48 shift. This atypical
(by conventional employment standards) schedule allowed him to
obtain a law degree and thereafter to become a practicing
attorney while maintaining his job as a firefighter.
Defendant Bell is also a veteran of the department, enjoying a
20-year tenure and attaining the rank of Fire Chief prior to his
retirement in 1996. Upon his departure, Bell began receiving
pension benefits from the department. In May 2003, Defendant Kellogg was elected mayor of
Harvey.*fn1 Shortly thereafter, he appointed Bell to serve
as the Public Safety Fire Administrator. According to the
complaint, the position did not exist before Kellogg took office,
and the duties and trappings of the position were
indistinguishable from those of the Fire Chief's office.
Hauenschild alleges that Bell's assumption of the office of the
Administrator was virtually contemporaneous with Kellogg's
election even though the position was not officially created
until August 2003.
At the time of Bell's appointment, Hauenschild was a member of
the Board for the Harvey Firefighters Pension Fund. Its president
was another firefighter named Richard Stockwell. When Bell began
serving as administrator in approximately May 2003, Stockwell
terminated Bell's pension payments, apparently concluding that
Bell had reentered active service in the department. According to
Stockwell's interpretation of 40 ILCS § 5/4-117(a),*fn2
Bell's receipt of the administrator's salary barred his continued
collection of retirement benefits. It appears from the complaint that Stockwell's unilateral
decision as board president was appealable to the board as a
whole. Bell sought this review in October 2003; in the meantime,
Hauenschild had been elected to replace Stockwell as president of
the board. The seven-member board heard Bell's appeal on or
around December 1, 2003, and voted four to three in support of
the earlier decision to discontinue Bell's retirement benefits.
Hauenschild was one of the four who agreed with Stockwell's
According to Hauenschild, the day after the hearing, Bell
rescinded the yearly schedule that Hauenschild and the other two
shift commanders had prepared for the department's staffing for
2004. The day after that, Bell removed him from the 24/48 shift
and instead required him to work five eight-hour shifts per week,
Monday through Friday. He was moved into an office that had been
converted from a storage room, located in an area for which he
was not given keys. He was divested of his position as shift
commander, thus terminating his supervisory duties. He was no
longer permitted to respond to fire calls. His sole duty was to
update the department's policy manual, a task that had not been
attended to for 20 years.
Hauenschild's new schedule adversely impacted his legal
practice, so he requested that Bell restore him to his previously
occupied shift. After Bell refused, Hauenschild sent a letter to
each of the individual Defendants, detailing Bell's actions and alleging that he had so acted to retaliate against
Hauenschild for voting not to reinstate his pension benefits.
Hauenschild's circumstances did not change, and in early January
2004 he resigned from the department.
Approximately one year later, Hauenschild filed suit. The
four-count complaint alleged First Amendment retaliation,
deprivation of a property right in contravention of the
Fourteenth Amendment, conspiracy to violate Hauenschild's
constitutional rights, and a state-law claim for wrongful
termination. Defendants moved to dismiss the complaint in its
entirety for failure to state a claim pursuant to Fed.R. Civ.
When considering a 12(b)(6) motion to dismiss, a court
evaluates the legal sufficiency of a plaintiff's complaint, not
the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th
Cir. 1990). We must accept all well-pleaded allegations as true
and will not dismiss a case for failure to state a claim unless
the plaintiff cannot prove any facts sufficient to support his
claim. Conley, 355 U.S. at 45-46. All inferences are to be
drawn in a light most favorable to the plaintiff. Jackson v.
E.J. Branch Corp., 176 F.3d 971, 978 (7th Cir. 1999). To survive
a motion to dismiss, a plaintiff need only provide a "short and
plain statement" under Rule 8(a)(2); the particulars of the claim
are not required. Midwest Gas Servs. v. Ind. Gas. Co.,
317 F.3d 703, 710 (7th Cir. 2002). Nonetheless, to withstand a motion to dismiss, a complaint
must allege facts that set forth the essential elements of the
cause of action. Doherty v. City of Chicago, 75 F.3d 318, 326
(7th Cir. 1996). With these principles in mind, we consider the
As an initial matter, we note that Hauenschild acknowledged in
his response that Count IV, a claim for wrongful discharge under
Illinois law, is not viable. He also concedes that he cannot
pursue any damage claims against the individual Defendants in
their official capacities. Finally, he disavows any intention of
seeking punitive damages against the City or the individual
Defendants in their official capacity. His request that he be
permitted to file an amended complaint incorporating these
changes is granted, and we turn our full attention to the
A. Count I: First Amendment Retaliation
To state a cognizable claim for infringement of First Amendment
rights by a government employer, a public employee such as
Hauenschild must allege that he engaged in constitutionally
protected speech and that the speech was a substantial or
motivating factor behind the employer's actions against him.
See Carreon v. Illinois Dep't of Human Servs., 395 F.3d 786,
791 (7th Cir. 2005). Because government employers have greater
latitude in regulating their employees' speech than they would in regulating the speech of private citizens, the first element
triggers a separate threepart analysis. See Bonds v. Milwaukee
County, 207 F.3d 969, 976 (7th Cir. 2000); Dishnow v. Sch.
Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996). First, the
speech in question must be the type that would be protected if it
originated from someone who was not a public employee. See
Dishnow, 77 F.3d at 197. Second, the speech must involve a
matter of public concern, not merely a personal grievance or
dispute. See id. Moreover, the plaintiff must speak as a
concerned citizen, rather than as a representative of the public
employer or pursuant to the routine duties of his or her job.
See Gonzalez v. City of Chicago, 239 F.3d 939, 941 (7th Cir.
2001); Bonds, 207 F.3d at 980; Youker v. Schoenenberger,
22 F.3d 163, 166-67 (7th Cir. 1994). The third step examines whether
the employer's interest in controlling the speech outweighs the
employee's interest in giving voice to the particular expression.
See Pickering v. Board of Education, 391 U.S. 563, 568,
88 S. Ct. 1731, 1734-35 (1968).
The sole basis for Defendants' 12(b)(6) challenge to Count I
focuses on whether Hauenschild's speech involved a matter of
public concern. To determine whether speech addresses a matter of
public concern, a court must look to the content, form, and
context of the speech, paying particular attention to content.
See Connick v. Myers, 461 U.S. 138, 147 (1983); Delgado v.
Jones, 282 F.3d 511, 517 (7th Cir. 2002). According to
Defendants, the content of Hauenschild's speech was a simple "no"
vote, it took the form of an execution of his duty as a board member to
decide pension disputes, and the context was nothing but an
employment decision on the personal grievance of Bell. They
contend that it is a private matter, of the sort that has been
deemed by the case law to not constitute a matter of public
concern. See, e.g., Gonzalez, 239 F.3d at 941; Snider v.
Belvidere Township, 216 F.3d 616, 620 (7th Cir. 2000). Relying
particularly upon Gonzalez, they aver that the vote was nothing
but a routine execution of Hauenschild's duties as a board
member, effectively removing any permissible characterization of
the speech as a matter of public concern.
We are unpersuaded by Defendants' argument for several reasons.
First, this case does not involve a private decision of a human
resources department; rather, it centers upon a vote by a public
body, charged with application of a statute governing the manner
in which public funds will be spent. This is very much a matter
of public concern. Relatedly, the context in which the speech
allegedly arose is unusual, to say the least. Given the
involvement of the mayor and the city council members with the
decision at issue, we cannot share Defendants' position that the
matter could be nothing but a private employment dispute. Third,
the allegations of Count I are not limited to Bell or
Hauenschild's vote; they encompass all the individual Defendants
and the letter that Hauenschild wrote to them describing Bell's
actions. In the unique circumstance described by the complaint,
it is conceivable that this communication would fall within the realm of public concern. At this stage of the litigation, and
because we know next to nothing about the letter's contents or
form, making any decision about the legal significance of this
correspondence is exceedingly difficult. Lastly, we emphasize
that this matter comes to us on a motion to dismiss for failure
to state a claim upon which relief can be granted. Having
reviewed the contents of the complaint as a whole, it is not
apparent that Hauenschild will be unable to prove a set of facts
that would entitle him to relief. Of course, this does not
represent a conclusion that the converse is true, i.e., that he
will be able to ultimately prevail on his claim of First
Amendment retaliation. It is simply too early in the proceeding
to make such a definitive determination.
B. Conspiracy to Violate Constitutional Rights
Count II of the complaint contends that the Defendants
conspired to deprive Hauenschild of his property right in his
employment with the department in violation of the Fourteenth
Amendment. Defendants correctly note that the complaint does not
specify whether Hauenschild is basing his claim in
42 U.S.C. § 1983 or 42 U.S.C. § 1985(3). However, because the complaint
contains no allegation that alludes to any animus by the
Defendants on grounds of race or other constitutionally protected
class, relief under § 1985(3) would be unavailable. See Bray
v. Alexandria Women's Health Clinic, 506 U.S. 263, 268-74,
113 S. Ct. 753, 759-62 (1993); Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798 (U.S. 1971). Thus, we
examine only the viability of a conspiracy claim founded on §
In the § 1983 context, a viable claim for conspiracy must
allege that a state official and a private party agreed to
deprive the plaintiff of constitutional rights and that the
private party willfully participated in concerted activity with
the state actors. Fries v. Helsper, 146 F.3d 452, 457 (7th Cir.
1998). Defendants charge that Count II is infirm because the
conspiracy alleged consists solely of persons working for the
City, a municipal corporation. They correctly note that a
corporation cannot conspire with itself, thus preventing
Hauenschild from properly alleging the first aspect of a legally
cognizable claim. However, Hauenschild points out that, when a
public official acts solely out of personal motivation, that
person acts outside the scope of his or her employment with the
government and in effect is transformed into a private party.
Hartman v. Bd. of Trustees, 4 F.3d 465, 470 (7th Cir. 1993).
Because the contents of the complaint reasonably allow an
inference that Bell acted not to further the interests of the
City but only to serve his own ends, the allegations of Count II,
under a particular set of facts, could provide Hauenschild with
relief. Thus, he must be given the opportunity to pursue his
claim beyond the pleading stage. C. Unconstitutional Deprivation of a Property Right
Count III alleges that Hauenschild possessed a property
interest in his job with the department and that Defendants,
acting under color of state law, wrongfully deprived him of that
right in violation of the Fourteenth Amendment by creating or
contributing to a situation that amounted a constructive
discharge. Drastically altering an employee's duties or position
can support a claim for constructive discharge. See, e.g.,
Levenstein v. Salafsky, 164 F.3d 345, 351 (7th Cir. 1998)
(concluding that an employer had constructively discharged a
physician by preventing him from seeing patients and relegating
him to a basement office to review old medical training videos);
Parrat v. City of Connersville, 737 F.2d 690, 694 (7th Cir.
1984) (finding constructive discharge when a 25-year police
veteran was demoted and placed in a windowless room with no
duties). In this case, Hauenschild alleges several of the
Defendants' actions created such an intolerable working
environment that he had no alternative but to resign his post.
His usual 24/48 shift was switched to an 8-hour, 5-day-per-week
shift. His title of shift commander and all accompanying
authority as well as his participation in responding to fire
calls were removed. Finally, he was assigned to work in a
windowless, converted storage room without an operating phone or
the ability to access the room without going through another
department employee. When read in the light most favorable to Hauenschild, Count III states
a cognizable claim. See Wozniak v. Conry, 236 F.3d 888,
889-90 (7th Cir. 2001).
D. Qualified Immunity
As an alternative ground for dismissal of Counts I and III,
Defendants assert that they are entitled to qualified immunity
from Hauenschild's claims. Public officials performing
discretionary functions are generally entitled to qualified
immunity from civil suit if their actions do not violate clearly
established statutory or constitutional rights of which a
reasonable official would have been aware. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). There is no entitlement to
qualified immunity if the plaintiff sufficiently alleges facts
that establish a constitutional violation and demonstrate the
constitutional right at issue was clearly established when the
violation occurred. Saucier v. Katz, 533 U.S. 194, 201,
121 S. Ct. 2151, 2156 (2001). The question of the application of
qualified immunity should be addressed at the earliest possible
point to effectuate its underlying purpose of protecting public
officials from litigation rather than just from ultimate
liability. Saucier, 533 U.S. at 200-01, 121 S. Ct. at 2156.
However, that point is seldom found at the motion to dismiss
stage, as § 1983 plaintiffs are not required to plead facts that
would indicate that immunity is not available. See Alvarado v.
Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001). Because, as
discussed above, we cannot definitively categorize the nature of
Hauenschild's speech without knowing facts that are not included in the complaint, the request
for dismissal premised on this affirmative defense is premature.
Based on the foregoing analysis, Defendants' motion to dismiss
the complaint is denied. Hauenschild is given until May 19, 2005,
to amend the complaint in accordance with the contents of this