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Caffarello v. Illinois State Toll Highway Authority

United States District Court, N.D. Illinois, Eastern Division

July 17, 2014



AMY J. ST. EVE, District Judge.

On November 25, 2013, Plaintiff Joseph M. Caffarello brought the present nine-count Complaint against Defendants Illinois State Toll Highway Authority ("Toll Authority"), Office of the Inspector General of the Toll Authority ("OIG"), James Wagner, individually and in his official capacity as Inspector General of the Toll Authority ("Wagner"), and Rita Mayfield, individually and in her official capacity as Illinois State Representative of Illinois House District 60 ("Representative Mayfield"). Before the Court are Defendants' motions to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6).

For the following reasons, the Court grants Defendants' motions as to Counts II, III, VI, VII, VIII, and IX of the Complaint with prejudice and dismisses Representative Mayfield as a Defendant to this lawsuit. The Court grants Defendants' motion to dismiss Count IV without prejudice and further grants Plaintiff leave to amend his procedural due process claim with respect to his liberty interest, as discussed in detail below. Also, the Court grants in part Defendants' motion to dismiss Count I regarding Wagner's October 23, 2012, memorandum to the Toll Authority, but denies the remainder of Defendants' motion to dismiss Count I. The Court denies Defendants' motion to dismiss Count V of the Complaint. Plaintiff's Amended Complaint is due on or before August 5, 2014.


"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). "In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true, Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), and draw "reasonable inferences in favor of the plaintiffs." Teamsters Local Union No. 705 v. Burlington No. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014).


The Toll Authority is an administrative agency of the State of Illinois and is in charge of the administration and maintenance of Illinois toll roads. (R. 1, Compl. ¶ 3.) The OIG was created to maintain the public trust in the administration and operation of the Toll Authority. ( Id. ¶ 4.) Wagner is the Toll Authority Inspector General. ( Id. ¶ 5.) Plaintiff alleges that the Toll Authority and OIG empower Wagner, as the Toll Authority Inspector General, to investigate waste, inefficiencies, fraud, corruption, and mismanagement in the day-to-day operations of the Toll Authority. ( Id. ¶ 9.) Plaintiff further alleges that at all relevant times he was working under the authority and control of Wagner, who had the authority and responsibility for all employment decisions and policies concerning the terms and benefits of Plaintiff's employment. ( Id. )

Plaintiff began his employment with the Toll Authority in April 2000 as a seasonal toll collector, and in June 2000, he became a full-time toll collector and a member of a bargaining unit. ( Id. ¶¶ 11, 12.) In November 12, 2002, Plaintiff became an Equipment Operator/Laborer for the Toll Authority. ( Id. ¶ 14.) In December 2010, the Toll Authority promoted Plaintiff to Roadway Section Supervisor. ( Id. ¶ 16.) After his December 2010 promotion, the Toll Authority assigned Plaintiff to its Maintenance 6 operation in Marengo, Illinois ("M-6"). ( Id. ¶ 17.) Beginning in May 2011, the Toll Authority temporarily reassigned Plaintiff to Roadway Section at M-4 in Gurnee, Illinois. ( Id. ¶ 18.) On July 1, 2011, the Toll Authority officially transferred Plaintiff to M-4. ( Id. )

Upon Plaintiff's arrival at M-4, and in his capacity as Roadway Section Manager, Plaintiff identified a number of operational and personnel issues that he believed had a negative impact on the safety of M-4 roadway personnel and the motoring public. ( Id. ¶ 19.) Plaintiff further alleges that he insisted that M-4 employees put in an honest day's work and that they contribute to the Toll Authority's success and growth. ( Id. ) As a result of his actions, Plaintiff asserts that he "ruffled the feathers" of some M-4 employees. ( Id. ¶ 20.) One of these disgruntled employees was Edward Maluska. ( Id. ¶¶ 21, 23.)

Plaintiff further contends that Maluska used his clout with Defendant Representative Mayfield, after which she called Plaintiff telling him that she looks out for Maluska because he is her constituent. ( Id. ¶ 26.) According to Plaintiff, Representative Mayfield told him that Maluska complained about his fellow co-workers harassing him and that she wanted Plaintiff to put a stop to the harassment. ( Id. ¶ 27.) Plaintiff told Representative Mayfield that it was inappropriate for her to contact him about disciplining Toll Authority employees and stated that he takes direction from Roadway Maintenance Manager Michael Zadel. ( Id. ¶ 28.) Plaintiff then gave Zadel's contact information to Representative Mayfield and she contacted Zadel a few minutes later. ( Id. )

After his telephone conversation with Representative Mayfield, Plaintiff met with Maluska on August 31, 2011, at which time Maluska acknowledged that he was aware of Plaintiff's and Representative Mayfield's earlier telephone conversation. ( Id. ¶ 29.) Plaintiff alleges that during the meeting, Maluska made threats about his co-worker John Misek because Misek allegedly defiled a photograph of Maluska's father. ( Id. ) On September 1, 2011, Plaintiff sent Zadel and the district manager an e-mail detailing his August 31, 2011, telephone conversation with Representative Mayfield, the conflict between Maluska and his co-workers Misek and Joseph Genella, and Maluska's threat to get back at his co-worker. ( Id. ¶ 30.) Plaintiff's e-mail stated that he intended to make a recommendation to move Maluska to a shift that would not require him to work with Misek or Genella. ( Id. ) According to Plaintiff, Maluska was not pleased with the shift change because he would face more scrutiny. ( Id. ¶ 32.)

In March 2012, the General Manager of Maintenance and Traffic told Plaintiff that the Toll Authority had received a photograph of him sleeping on the job. ( Id. ¶ 33.) Plaintiff alleges that Representative Mayfield provided the photograph of him to the Toll Authority in a May 12, 2012 letter authored by her entitled "waste of taxpayer dollars." ( Id. ¶ 34.) In particular, Representative Mayfield sent the letter to the Executive Inspector General with copies to the Illinois Governor, Executive Director of the Toll Authority, and the Chair of the Toll Authority's Board. ( Id. ) On April 2, 2012, the Toll Authority issued Plaintiff a written reprimand and a two-day unpaid suspension for sleeping on the job, after which Plaintiff served the suspension. ( Id. ¶¶ 37, 38.)

Plaintiff further alleges that Wagner initiated an investigation into his misconduct on or about March 27, 2012, that Representative Mayfield's March 12, 2012 letter had triggered. ( Id. ¶ 42.) On April 14, 2012, Plaintiff met with Wagner and an investigator from OIG. ( Id. ¶ 46.) According to Plaintiff, Wagner asked him about his work history with the Toll Authority and how he got promoted so rapidly. ( Id. ) Wagner also asked Plaintiff about whether he knew certain Italian individuals who were in prison and then asked Plaintiff if he was involved in bookmaking or if he gambled. ( Id. ) Plaintiff's national origin is Italian. ( Id. ¶¶ 47, 48.)

After the investigation into Plaintiff's conduct, on October 23, 2012, Wagner drafted a memorandum recommending that the Toll Authority terminate Plaintiff's employment based on his misconduct. ( Id. ¶ 60.) On November 26, 2012, the Toll Authority suspended Plaintiff without pay for unprofessional behavior in connection with his subordinate staff. ( Id. ¶¶ 64, 65.) Plaintiff alleges that his changing Maluska's shift was a factor in his suspension. ( Id. ¶ 65.) On December 3, 2012, Plaintiff filed an appeal of the November 26, 2012, suspension without pay with his supervisor, Roadway Maintenance Manager Zadel, pursuant to the Tollway Policy and Procedures Manual, Section E that states suspension without pay is appropriate when a reprimand is unsuccessful or when the gravity of an offense so warrants. ( Id. ¶¶ 66, 81.) Section E also requires that the Toll Authority provide a copy of the documentation to the disciplined employee. ( Id. ) In his December 3, 2012 appeal, Plaintiff also cited Section F, which requires a Department Chief to approve suspensions. ( Id. ¶ 66.) Plaintiff further alleges that Zadel did not respond to this appeal. ( Id. ¶ 81.)

At the end of January 2013, the Toll Authority forwarded Plaintiff a letter including an OIG Executive Memorandum dated January 30, 2013, a one page Loudermill response form, and information about unemployment insurance. ( Id. ¶ 88.) The January 2013 letter further advised Plaintiff that he had seven business days to respond. ( Id ¶ 89.) On February 11, 2013, Plaintiff timely denied the charges against him. ( Id. ¶ 99.) By letter dated February 20, 2013, the Chief of Administration informed Plaintiff that the Toll Authority was terminating his employment. ( Id. ¶ 101.)

On March 28, 2013, the Toll Authority placed on its website a summary activity report entitled "Illinois Tollway Inspector General Releases Summary Activity Report for Past Six Months." ( Id. ¶ 103.) The report stated that the Toll Authority had terminated the employment of a Toll Authority Maintenance Supervisor because he was found sleeping on the job and had intimidated employees. ( Id. ) On that same day, the Toll Authority Defendants placed on the website a similar summary activity report that stated that OIG initiated an investigation into a Maintenance Supervisor on March 27, 2012, "following receipt of information from an elected official, regarding allegations of the Supervisor sleeping on the job and intimidating employees." ( Id. ¶ 104.) The reports did not mention Plaintiff by name. ( Id . ¶ ¶ 103-04.) On April 19, 2013, the Toll Authority Defendants published redacted copies of the January 30, 2013 OIG Executive Memorandum and Plaintiff's February 11, 2013 response on the Toll Authority's website. ( Id. ¶ 119.) Plaintiff alleges that these documents made false statements. ( Id. ¶ 120.)

In his Complaint, Plaintiff alleges the following claims: (1) an Equal Protection national origin discrimination claim (Count I); (2) First Amendment political affiliation and speech claims (Counts II and III); (3) a Fourteenth Amendment procedural due process claim (Count IV); (4) a conspiracy claim under 42 U.S.C. § 1983 (Count V); (5) a state law tortious interference with employment expectancy claim (Count VI); (6) a state law defamation claim (Count VII); (7) a state law invasion of privacy claim (Count VIII); and (8) a whistleblower claim under the Illinois State Officials and Employees Ethics Act, 5 ILCS 430/1, et seq. (Count IX).


I. National Origin Discrimination Claim - Count I

In Count I of his Complaint, Plaintiff brings a Fourteenth Amendment equal protection claim based on his national origin against Defendants Toll Authority, OIG, and Wagner pursuant to 42 U.S.C. § 1983. "To establish a violation of the Fourteenth Amendment's Equal Protection Clause, a plaintiff must demonstrate that a state actor has treated him differently from persons [not in his protected class] and that the actor did so purposefully.'" Xiong v. Wagner, 700 F.3d 282, 295 (7th Cir. 2012) (citation omitted); see also Swanson v. City of Chetek, 719 F.3d 780, 783 (7th Cir. 2013) ("The typical equal protection case involves discrimination by race, national origin or sex."). In support of his equal protection claim, Plaintiff alleges that Wagner, who had the authority to investigate corruption within the Toll Authority, was aware of Plaintiff's Italian heritage. (Compl. ¶¶ 9, 46.) Plaintiff further contends that Wagner was suspicious how Plaintiff was promoted "so rapidly" and asked ...

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