United States District Court, N.D. Illinois, Eastern Division
SAMUEL DER-YEGHIAYAN, District Judge.
This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, the motion to dismiss the federal claims is granted and the remaining state law claims are dismissed without prejudice.
Plaintiff Laura Kubiak (Kubiak) alleges that in 1986 she began employment with the Chicago Police Department (CPD) as a beat patrol officer. In 2000, Kubiak was allegedly detailed to the Office of News Affairs (ONA). In 2009, Officer Veejay Zala (Zala), was also detailed to the ONA. Kubiak contends that on one occasion when she was leaving work Zala became enraged by a report prepared by Kubiak, swore at Kubiak, shook his finger in her face, swung his hand back as if to strike Kubiak, and continued to berate and intimidate her. Kubiak contends that she spoke about the incident with Defendant Melissa Stratton (Stratton), ONA Director, and with Defendant Maureen Biggane (Biggane), a Lieutenant with the CPD. Kubiak also allegedly submitted a memorandum to Biggane regarding the incident, which led to an Internal Affairs Division (IAD) investigation. In February 2013, Kubiak was allegedly verbally informed that her IAD complaint brought against Zala had been sustained. Kubiak contends that subsequently Biggane informed Kubiak that her detail at the ONA was being terminated. Kubiak also claims that she was then reassigned to work a midnight shift as a beat patrol officer. Kubiak alleges that Defendants' action in reassigning her was retaliation against her for exercising her First Amendment rights.
Kubiak includes in her complaint claims alleging retaliation in violation of her First Amendment rights brought pursuant to 42 U.S.C. § 1983 (Section 1983) (Count I), a Section 1983 Monell claim (Count I), Section 1983 conspiracy claims (Count II), and claims brought under the Illinois Whistleblower Act, 740 ILCS 174/1-1 et seq. (Count III). Defendants now move to dismiss all claims.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " and that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).
I. Section 1983 Retaliation Claims
Defendants move to dismiss the Section 1983 retaliation claims. A public employee bringing a First Amendment retaliation claim must establish: (1) that her "speech was constitutionally protected, " (2) that "[s]he has suffered a deprivation likely to deter speech, " and (3) that her "speech was at least a motivating factor in the employer's action." Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013); Volkman v. Ryker, 736 F.3d 1084, 1091 (7th Cir. 2013)(stating three steps for establishing a First Amendment retaliation claim brought by a public employee); Hutchins v. Clarke, 661 F.3d 947, 955-56 (7th Cir. 2011)(stating that "[f]irst, the court must determine whether the employee's speech was constitutionally protected under the Connick-Pickering test[, ]... [s]econd, the plaintiff must establish that the speech was a substantial or motivating factor in the alleged retaliatory action, " and third, that the defendant is then given "an opportunity to establish that the same action would have been taken in the absence of the employee's protected speech").
Defendants argue that Kubiak has not alleged facts to plausibly suggest that Kubiak engaged in any protected speech. In order for a public employee to show her speech is protected under the First Amendment, the employee must establish: (1) that "[s]he made the speech as a private citizen, " (2) that "the speech addressed a matter of public concern, " and (3) that her "interest in expressing that speech was not outweighed by the state's interests as an employer in promoting effective and efficient public service.'" Swetlik, 738 F.3d at 825-26 (quoting in part Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008))(stating that "[t]his last element is known as Pickering balancing")(citing Garcetti v. Ceballos, 547 U.S. 410 (2006) and Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois, 391 U.S. 563, 567 (1968)).
1. Speaking in Capacity as Employee
Defendants argue that Kubiak has failed to allege facts to suggest that she was speaking as a private citizen. In determining "whether a public employee is speaking as an employee or as a citizen, ... [t]he proper inquiry" must be a practical one'" and the court should consider "whether the speech is part of the employee's daily professional activities.'" Chrzanowski v. Bianchi, 725 F.3d 734, 738-39 (7th Cir. 2013)(quoting in part Garcetti v. Ceballos, 547 U.S. 410, 416 (2006))(stating that " Garcetti governs speech that is made pursuant to official duties in the sense that it is government employees' work product that has been commissioned or created by the employer")(internal quotations omitted); see also Swetlik, 738 F.3d at 826 (citing Garcetti for proposition that "a public employee's statements made pursuant to official duties are not made as a private citizen for the purposes of the First Amendment").
In the instant action, Kubiak alleges that she "made her complaint against Officer Zala, not as part of her routine job duties, but as a citizen who was subjected to an assault by a Chicago Police Officer, with a history of violence, knowing his conduct was unlawful and fearing for her own safety as well as the safety of others." (Compl. Par. 48). However, the facts alleged by Kubiak do not corroborate her conclusory assertion that she was speaking out as a private citizen. Kubiak alleges that the incident occurred during work hours at the work place. (Compl. Par. 26-35). Kubiak also contends that the disagreement between herself and Zala involved Kubiak's preparation of a report as part of her official duties. (Compl. Par. 27). Kubiak does not allege that she attempted to voice her concerns in a public forum. Instead, Kubiak contends that she ...