United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Plaintiff Angela Cunliffe brought this action relating to her allegedly unlawful dismissal as a counselor at a Chicago high school. Defendants, the Board of Education of the City of Chicago and Jeffrey Wright, have moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Count III of Cunliffe's Third Amended Complaint. For the reasons discussed below, Defendants' Motion is granted.
Cunliffe, proceeding pro se, filed this lawsuit on August 10, 2012. She subsequently amended her claims several times. On June 20, 2014, this Court dismissed Cunliffe's nineteen-count Second Amended Complaint, dismissing some claims with prejudice and granting Cunliffe leave to amend the claims that were dismissed without prejudice. Cunliffe obtained legal counsel and, on November 12, 2014, filed a Third Amended Complaint ("TAC"). The TAC asserts three claims: (1) violation of due process under the Fourteenth Amendment (Count I); (2) a constitutional claim for "stigma plus" (Count II); and (3) First Amendment retaliation (Count III).
The following facts are drawn from the TAC and are accepted as true for purposes of the Motion to Dismiss. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). In 1992, Cunliffe was hired at Dr. Martin Luther King Jr. College Preparatory High School ("King") by the Board and attained tenure that same year. In September 2000, Cunliffe moved into a tenured counselor position at King. Defendant Wright was the principal at King from August 2005 through March 2012. (Compl. ¶¶ 4-8.)
King provides benefits to homeless students through a publically funded program, known as "Students in Temporary Living Situations" ("STLS"). ( Id. ¶ 10.) Wright assigned Cunliffe to be the STLS liaison and assigned another King employee, Rhonda Jones, to be the STLS clerk. ( Id. ¶ 11.) As STLS liaison, Cunliffe was responsible for providing general counseling services to student candidates, advising them of their rights under the program, and completing enrollment forms for Wright's final approval. ( Id. ¶ 12.)
In June 2009, Cunliffe learned that three of Jones's children were enrolled improperly in the STLS program. ( Id. ¶ 14.) Cunliffe brought the issue to Wright's attention, who indicated that he did approve their enrollment. Cunliffe also consulted with the Board's STLS Coordinator, Jennifer Fabbrini, who recommended a compliance audit of King's STLS program. ( Id. ¶ 16.) Cunliffe later made an anonymous report with the Board's Office of the Inspector General. ( Id. ¶ 15.)
The day after Fabbrini conducted the audit, Wright issued Cunliffe a notice of a pre-disciplinary hearing that accused Cunliffe of misconduct, insubordination, and incompetently performing her duties. ( Id. ¶ 18.) Cunliffe had always maintained a "superior" performance rating until these disciplinary proceedings were initiated in 2009. ( Id. ¶ 9.) Cunliffe subsequently received additional poor performance reviews and reprimands. On August 13, 2010, Cunliffe received a termination letter from the Board stating that her position was closed due to "redefinition." ( Id. ¶¶ 23-27.)
Rule 12(b)(6) permits a defendant to move to dismiss a complaint by citing the plaintiff's "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the plaintiff must simply allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must also provide defendant "with fair notice' of the claim and its basis." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed.R.Civ.P. 8(a)(2) and Twombly, 550 U.S. at 555). However, a complaint "that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Rather, the complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 556). When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in favor of the plaintiff. Tamayo, 526 F.3d at 1081.
To state a First Amendment retaliation claim, a plaintiff must allege that: "(1) his speech was constitutionally protected; (2) the protected speech was a but-for' cause of the employer's action; and (3) that he suffered a deprivation because of the employer's action." Wackett v. City of Beaver Dam, 642 F.3d 578, 581 (7th Cir. 2011) (internal citations omitted); see also Peele v. Burch, 722 F.3d 956, 959 (7th Cir. 2013).
Constitutionally Protected Speech
A public employee's speech will be protected by the First Amendment where she is speaking as a citizen on a matter of public concern. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). However, where a public employee makes statements pursuant to her official duties, that speech is not protected. Id. at 421. Accordingly, there must be a "threshold determination regarding whether the public employee spoke in his capacity as a private ...