The opinion of the court was delivered by: Gilbert, District Judge
This matter is before the Court on Defendant Marion Community Unit School District No. 2's (the "District") motion to dismiss Counts X, XI and XII of Plaintiffs' first amended complaint. (Doc. 24). The District submitted a memorandum of law in support of its motion (Doc. 25), to which plaintiff Jennifer Lincoln ("Lincoln) has responded (Doc. 31) and the District has replied (Doc. 35). For the following reasons, the District's motion to dismiss will be DENIED.
Lincoln, like her fellow plaintiffs, is a teacher at Washington School, an elementary school in the District. She has worked for the District for 14 years (at least 10 years at Washington) and is a tenured teacher under Illinois law. See 105 ILCS § 5/24-11. The events giving rise to the instant litigation began sometime in 2003 or 2004, when the District's Superintendent, Wade Hudgens, made it known that he wanted to implement a new system for organizing the District's elementary schools. Traditionally, the District has had geographically-based elementary schools, that is, schools catering to students of several grades drawn from specific geographical areas. Hudgens wanted to do away way the old system in favor of attendance centers, where, for example, all first and second grade students in the District would attend one school that housed only those grades. Lincoln, like her fellow plaintiffs, believed that this plan would hurt the District's students and relayed her concerns to a member of the District's Board of Education (the "Board"), Dick Baggett. Pursuant to Baggett's request, Lincoln polled the other teachers at her school and informed her principal, Debra Runion ("Runion"), that she intended to present the results of her poll to the Board at its meeting in October 2003. Runion counseled her against such action and Lincoln heeded her warning. After another conversation, Lincoln was similarly dissuaded from presenting her findings in November; however, she eventually presented the results of her poll at the December meeting. After she presented this information, Hudgens' attitude toward her soured and he rarely, if ever, spoke to her after that time.
Lincoln and her fellow plaintiffs participated in a number of meetings and presentations regarding the District's proposed plan. At these meetings, Lincoln and the other plaintiffs expressed concern over the proposed attendance centers, Hudgens' plan to test first grade students at the beginning of the year rather than during the fourth quarter and his plans to change the elementary school reading program. Lincoln also voiced her opposition to the attendance centers and the reading programs in several interviews with local newspapers. On April 7, 2005, Lincoln's husband wrote a letter to the editor in a local newspaper expressing his concerns with Hudgens' and the Boards' fiscal policies and the attendance center plan. On April 13, 2005, Lincoln's husband's employer, Marion Ford, received an anonymous letter stating that its author and others of like mind would no longer patronize the business so long as Mr. Lincoln remained an employee. Marion Ford's owner, Don Fisher, called Hudgens to inquire as to whether he knew the identity of the letter's author. Though he stated that he did not know the letter's author, Hudgens indicated that neither he nor the members of the Board wanted anything to do with Marion Ford so long as Mr. Lincoln remained in its employ. Lincoln allegedly suffered retaliation more directly in the form of lower performance evaluations from Runion. Specifically, Runion evaluated Lincoln's performance in the categories of communication, attitude and cooperation satisfactory. In all of these categories Lincoln had previously received "excellent" marks -- apparently one grade above the satisfactory level. When Lincoln questioned her about these departures, Runion told her that "she was the martyr of the school and that she had brought everyone down on the administration . . . that she should have handled the attendance center issue differently." (Doc. 22 at ¶ 122). Lincoln alleges that these marks were in retaliation for her speech on the matters previously discussed. For these reasons, Lincoln claims the District violated her rights under the First and Fourteenth Amendments to the United States Constitution (Count X), Article 1, Section 4 of the Illinois Constitution (Count XI) and the Illinois Local Government Employees Political Rights Act, 50ILCS 135/1 et seq. (Count XII).
The District's motion to dismiss only relates to plaintiff Lincoln's claims in the complaint, Counts X, XI and XII. The District claims she has failed to state a claim upon which relief can be granted on all of these counts because receiving lower marks is not a sufficient adverse employment action to support a claim of retaliation under the First Amendment and the Illinois statutes serving as the basis for her part of the complaint. The District also claims Lincoln lacks standing to challenge the alleged retaliatory actions taken against her husband.
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations as true and draws all reasonable inferences in favor of the plaintiff. Brown v. Budz, 398 F.3d 904, 908 (7th Cir. 2005); Holman v. Indiana, 211 F.3d 399, 402 (7th Cir. 2000). The Court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff cannot prove his claim under any set of facts consistent with the complaint. Brown, 398 F.3d at 908-09; Holman, 211 F.3d at 405. "[I]f it is possible to hypothesize a set of facts, consistent with the complaint, that would entitle the plaintiff to relief, dismissal under Rule 12(b)(6) is inappropriate." Brown, 398 F.3d at 909 (internal quotations omitted).
Generally, courts will not grant a motion to dismiss merely because the complaint is vague or lacking in detail so long as it pleads "the bare minimum facts necessary to put the defendant on notice of the claim so that he can file an answer." Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); see Brown, 398 F.3d at 908; Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985). A complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing. Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); American Nurses' Ass'n v. Illinois, 783 F.2d 716, 727 (7th Cir. 1986). Nor must it allege all, or any, of the facts logically entailed by the claim. Higgs, 286 F.3d at 439; Bennett, 153 F.3d at 518; American Nurses', 783 F.2d at 727. Nonetheless, the complaint must provide a short and plain statement of the claim sufficient to fairly put the defendant on notice of the claim and its basis. Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993); Brown, 398 F.3d at 908; see also Fed. R. Civ. P. 8(a).
Stated broadly, the two issues presented by this motion are whether Lincoln's receipt of lower marks on her employment evaluation can serve as a sufficient act of retaliation under any of the provisions cited in her complaint and whether she has standing to bring claims resulting from alleged actions taken against her husband. The resolution of the second issue necessarily plays into the first, as will become clear below.
In order to state a First Amendment claim for retaliation, a plaintiff need only allege that she engaged in activity protected by the First Amendment and that the defendant's actions were motivated by that protected activity. See Higgs, 286 F.3d at 439; see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977). If a plaintiff makes such allegations, her complaint will withstand dismissal for failure to state a claim unless she pleads too much, that is, facts showing that she cannot prevail in her lawsuit. See, e.g., Jefferson v. Ambroz, 90 F.3d 1291, 1296 (7th Cir. 1996). To prevail on her First Amendment retaliation claim, Lincoln must show that her speech was constitutionally protected and that the speech was a substantial or motivating factor in the District's retaliatory action. Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004). For purposes of this motion, the District does not contest that Lincoln engaged in protected speech or that the District acted in response to her speech. The only issue before the Court here is whether the alleged actions taken here are sufficient to support a claim upon which relief can be granted.
Lincoln must show that she "suffered an adverse employment action motivated by the exercise of [her] right to free speech." DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 191 (7th Cir. 1995) (citing Pickering v. Bd. of Educ., 391 U.S. 563 (1968)). The retaliatory action "must be sufficiently adverse to present an actual or potential danger that the speech of employees will be chilled." Id. (citing Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)). These actions need not be "monstrous"; they need only create the potential to chill speech. Id. DeGuiseppe is a reasonable place to start the Court's discussion. In that case, an officer of the Bellwood, Illinois police department claimed the village and its police chief retaliated against him in violation of the First Amendment after he unsuccessfully opposed the chief's ascension to that possession. Id. at 189. Specifically, the officer claimed retaliation in defendants' refusal to grant him light duty status. Id. The Court found no sufficient retaliation because the officer failed to show that defendants had taken some action "with materially adverse consequences to him." Id. at 192. The Court held that a material change in the circumstances of employment "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (quoting Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Put another way, the action must be "adverse in the sense that the employee is made worse off by it." Id. That the chief required the officer to obtain additional medical advice regarding his request for light duty and that after relating to the chief the doctors' suggestion that he no longer remain a police officer, suggesting the officer take a pension, was insufficient to meet this standard. Id. Finding that he did not suffer any loss -- "not a penny" -- the Court found that he did not suffer an adverse employment action. Id. Though the circumstances in DeGuiseppe are quite different from the circumstances here, the Court's analysis there serves to define the initial point of contention between the parties.
In her response to the District's motion to dismiss, Lincoln takes issue with its assertion, under DeGuiseppe and similar cases, that a plaintiff need show an "adverse employment action" to state a claim for retaliation in violation of the First Amendment. Citing Spiegla v. Hull, among other cases, Lincoln asserts that she need not show an "adverse employment action" as that requirement has been defined in the cases brought under Title VII and the other antidiscrimination statutes. Rather, she insists that "any deprivation . . . that is likely to deter the exercise of free speech . . . is actionable." Spiegla, 371 F.3d at 928 (quoting Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000)). Though the disagreement on this relatively fine point might seem like a trivial exercise in semantics, it is important because the Seventh Circuit has said that a retaliatory action under the First Amendment need not even relate to employment. In Powers v. Summers, the Seventh Circuit sought to clarify its holding in DeGuiseppe. 226 F.3d at 820. In Powers, the Court held that there is no requirement under § 1983 and the constitutional doctrines it enforces that alleged actions taken in retaliation for free speech "alter the terms or conditions of . . . employment." 226 F.3d at 820. One can state a claim for retaliation under the First Amendment based on actions that do not even relate to employment. Id. All that is required is a "deprivation under color of law that is likely to deter the exercise of free speech . . . even something as trivial as making fun of an employee for bringing a birthday cake to the office to celebrate another employee's birthday." Id. (citing Bart v. Telford, 677 F.2d 622, 624 (7th Cir. 1982)). Explaining its holding in DeGuiseppe, the Court said its reasoning there was meant to reflect that an employee must show that the activity complained of was sufficient to deter the exercise of his free speech rights. Id. at 820-21 (unwilling to conclude that the denial of a few hundred dollar raise was unlikely to deter the exercise of free speech).
The Seventh Circuit has addressed negative employment evaluations in the Title VII context a number of times. The District believes the Court should conduct an analysis similar to that conducted in Title VII cases, citing Hilt-Dyson v. City of Chicago, 282 F.3d 456, 466 (7th Cir. 2002), among other cases. In Hilt-Dyson, the Seventh Circuit found, like it has in a number of Title VII cases, that "negative evaluations, standing alone, do not constitute adverse employment actions." Id.; see also Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 613 (7th Cir. 2001) (same); Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999) (same). It is clear, therefore, that negative evaluations are insufficient under Title VII. However, the policies which underlie the antidiscrimination statutes are not the same as those that are implicated under the First Amendment. As the Court stated in Bart v. Telford, though the effect of harassment and ridicule "on freedom of speech may be small . . . since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable." 677 F.2d 622, 625 (7th Cir. 1982) (finding that it was a question of fact whether defendants' campaign of petty harassments "reached the threshold of actionability under § 1983"); see also Lifton, 416 F.3d at 576 (assuming for purposes of decision that a recommendation of fifteen-day suspension, though not served, could constitute an adverse action sufficient to give rise to a retaliation claim because the injury in these cases need not be great). The question remains whether a lower evaluation is sufficient for First Amendment ...