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Rose v. Haney

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

May 8, 2017

Barry Rose, an individual, Plaintiff,
Richard Haney, individually and in his capacity as Provost of the College of Lake County and the College of Lake County, Defendants.


          Honorable Thomas M. Durkin United States District Judge

         Plaintiff Barry Rose, a former adjunct professor in the Paralegal Program at the College of Lake County (“CLC”), brings suit pursuant to 42 U.S.C. § 1983 for wrongful employment termination. Defendants purportedly terminated Plaintiff for writing disrespectful emails to faculty and students, but Plaintiff alleges the true reason he was fired was that he exercised his First Amendment right to speak out about concerns he had with the Paralegal Program, including concerns about the teacher evaluation system and meetings of the Paralegal Advisory Board (Count I). Plaintiff also alleges that the process by which Defendants terminated his employment as an adjunct professor violated his rights to procedural due process (Count II). Defendants have filed a motion to dismiss and strike certain portions of the complaint. See R. 28 (hereinafter “Motion”). For the reasons that follow, Defendants' Motion is granted in part and denied in part.

         Legal Standard

         A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘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.'” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Id. In addition, the Court may consider facts outside the complaint referenced by Plaintiff in her brief that are not contrary to any of the allegations in the complaint.[1]


         The allegations of the complaint show that Plaintiff began teaching at CLC as an adjunct professor in the Paralegal Program in January 2007. R. 23, ¶ 1. He was nominated for Teacher of the Year in 2010 and 2011, and again in 2014. In 2010 and 2011, he was recognized as one of CLC's Outstanding Faculty of the Year. Id., ¶ 2. Plaintiff has consistently been rated favorably by his students, receiving an average of 4.75 on a 5-point scale in his two most recent evaluations. Id., ¶ 3.

         In early 2011, Plaintiff met with Richard Haney, who at the time was Vice-President of Educational Affairs, to discuss Plaintiffs concern that CLC did not have a thorough, effective instructor evaluation system. Id., ¶ 4. Haney admitted to Plaintiff that CLC's instructor evaluation methods were inadequate. Id., ¶ 5. Shortly after the meeting, Plaintiff sent Haney an email recounting their discussion and offering to work on improvements to CLC's teacher evaluation system. Id. Haney neither contacted Plaintiff nor implemented any changes in the evaluation system. Id., ¶ 6. Plaintiff therefore contacted the President of CLC to discuss his concerns. Id. The President, however, would not agree to meet with Plaintiff and instead referred him to Haney. Id. Plaintiff later wrote letters expressing his concerns about CLC's teacher evaluation process to two state senators. Id., ¶¶ 26, 27.

         In April 2015, Plaintiff requested and received permission to attend the semiannual meeting of the Paralegal Advisory Board. His invitation to attend the meeting, however, was later rescinded after he indicated that he wanted to discuss “the future of the adjuncts in the Paralegal Program.” Id., ¶¶ 7-8. Plaintiff complained that his exclusion from the meeting was in violation of the Illinois Open Meetings Act and the Public Community College Act, and he informed CLC that he intended to seek an official Attorney General Opinion on the open meeting requirement. See R. 33 at 4. As a result, CLC relented and allowed him to attend the meeting. Id. Plaintiff contends, however, that the CLC administrative staff treated him “coldly and harshly” at the meeting, where he was relegated to seating in the back row, passed over for introductions, and not allowed to speak. Id.; R. 23, ¶¶ 9, 10. After the meeting, Plaintiff alleges, he was “ostracized” by the CLC administration. Id., ¶ 20.

         On September 3, 2015, Plaintiff submitted requests to teach eight classes in the Spring 2016 semester, including two courses he had taught on numerous previous occasions. Id., ¶ 19. CLC was obligated by the Adjunct Union Contract to extend Plaintiff an offer if any course for which he was qualified to teach was available. Id.; R. 33 at 13. The deadline for CLC to inform Plaintiff whether he would be offered any classes for the Spring 2016 semester was October 30, 2015. R. 23, ¶ 19.

         On or about September 6, 2015, only a couple of business days after Plaintiff submitted his request to teach eight courses in the Spring 2016 semester, Haney sent Plaintiff an email directing Plaintiff to attend an Investigatory Interview (“Interview”) to discuss concerns about certain emails Plaintiff had sent to faculty and students. Id., ¶ 21. Haney did not identify the emails at issue or inform Plaintiff whether he might suffer any consequences as a result of the Interview. Id. Plaintiff did not want to attend the Interview but was told he would be cited for insubordination if he did not appear. Id. Plaintiff asked which emails of his were of concern to CLC, and he received that information from Haney prior to the meeting. Id., ¶ 28. The emails in question related to Plaintiffs issues with CLC's teacher evaluation system and CLC's refusal to allow Plaintiff to volunteer as a tutor at CLC's Writing Center. Id., ¶ 22; see also id., ¶ 16. According to Plaintiff, the emails “did not disparage any instructors o[r] other persons. Instead, the harshest comment Plaintiff ever made was that he believed that CLC did not always have the best interests of CLC students at heart.” Id., ¶ 16; see also id., ¶ 17.[2]

         On September 16, 2015, Plaintiff, along with his attorney and two union representatives, attended the Interview. Id., ¶ 30. Plaintiff requested but was denied the right to have the co-chairs of his department attend so he could question them, as well as to have the Interview recorded. Id., ¶ 30. Plaintiff was subjected to questioning at the meeting by Haney and an attorney. But when Plaintiff attempted to ask questions of his own, he was told he could not do so. Id., ¶ 32.

         On October 30, 2015, Plaintiff received an offer from CLC to teach Legal Research and Writing in the Spring 2016 semester. Plaintiff immediately accepted the offer by email. Id., ¶¶ 19, 33. He was never presented with any contract in connection with this offer, however. Id., ¶ 34. Instead, on December 15, 2015, Plaintiff was informed by letter that his email and other privileges to access CLC's faculty portal were immediately revoked pending the investigation, which was expected to be completed by the end of January 2016. Id., ¶ 36. Plaintiff also was informed that he must attend a second Interview. Id., ¶ 35. The second Interview was held on December 16, 2015, and, just like the earlier Interview, Plaintiff was not allowed to record the meeting, to ask any questions, or to present any evidence on his own behalf. Id. In January 2016, just before the start of the Spring 2016 semester, Plaintiff was informed that the offer he had accepted to teach Legal Research and Writing had been rescinded. Id., ¶ 37. A short time later, on January 30, 2016, Plaintiff received a “detailed letter” from Haney with exhibits containing “many unfounded statements and conclusions, ” informing him that he was being terminated as an adjunct professor. Id, ¶ 38.


         I. Count I-First Amendment Retaliation Claim

         “[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). To make out a prima facie case of retaliation in violation of the First Amendment (made applicable to state actors through the Fourteenth Amendment), Plaintiff must show: (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity; and (3) the First Amendment activity was at least a motivating factor behind the deprivation Plaintiff was made to suffer. Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). Defendants argue that Plaintiff has failed to plead sufficient facts to plausibly allege either the first or third requirements.

         A. Activity Protected By The First Amendment

         Defendants argue that Plaintiff has not adequately alleged that he engaged in an activity protected by the First Amendment. As an adjunct professor employed by a state community college, Plaintiff was a public employee. “In assessing the viability of a public employee's First Amendment claims, [the court] must make a threshold determination as to whether the speech that allegedly motivated the employer's adverse action was protected by the Constitution.” McArdle v. Peoria Sch. Dist. No. 150, 705 F.3d 751, 754 (7th Cir. 2013). “The inquiry into the protected status of speech is one of law, not fact.” Id.

         “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). At the same time, “a public employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004). In particular, government employees have a First Amendment right “to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment.” Id. In striking a balance between the competing governmental interest of managing its employees and private interest of free speech, the Supreme Court has held that, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419. In addition, the Supreme Court in Garcetti imposed a threshold determination regarding whether the public employee spoke in his capacity as a private citizen or as an employee.

         1. Garcetti DOESNOTAPPLY.

         In Garcetti, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 547 U.S at 421. The Seventh Circuit has described this inquiry as a “threshold determination regarding whether the public employee spoke in his capacity as a private citizen or as an employee.” Chaklos v. Stevens, 560 F.3d 705, 712 (7th Cir. 2009). The relevant inquiry for purposes of Defendants' Motion is whether Plaintiff was acting pursuant to his official duties as an adjunct professor when he engaged in the speech for which he was fired. That inquiry is resolved by looking at “whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.” Lane v. Franks, 134 S.Ct. 2369, 2373 (2014). Thus, “[p]ublic employee speech does not lose First Amendment protection because it concerns the subject matter of the employee's job.” Chrzanowski v. Bianchi, 725 F.3d 734, 738 (7th Cir. 2013). “Likewise, public employees' speech is not subject to restriction simply because it occurs inside the office, since ‘[m]any citizens do much of their talking inside their respective workplaces.'” Id. (quoting Garcetti, 547 U.S. at 420-21)). As the Seventh Circuit explained, “speech does not ‘owe[ ] its existence to a public employee's professional responsibilities' within the meaning of Garcetti simply because public employment provides a factual predicate for the expressive activity; rather, 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.” Id. (quoting Garcetti, 547 U.S. at 422).

         Defendants argue that “Plaintiff has failed to plead that he was speaking as a private citizen.” R. 29 at 4. But the issue on Defendants' Motion is not whether Plaintiff has formulaically alleged that he was speaking as a private citizen but whether the facts alleged would support a finding that he was. The protected speech alleged by Plaintiff for which he claims to have been fired includes his expressed concerns about the meetings of the Paralegal Advisory Board being open to the public and his emails to faculty and students regarding the teacher evaluation process and possibly other related concerns about CLC not acting in the best interests of its students. Although neither party specifically discusses what the job duties of an adjunct professor in the CLC Paralegal Department are, it is reasonable to infer that they relate to the task of teaching, not to the tasks of ensuring open meetings of the Paralegal Advisory Board or even adequate teacher evaluations and other school policies to promote the best interests of the students. Compare Garcetti, 547 U.S. at 421 (memo written by deputy district attorney recommending that case be dismissed because of government misconduct was part of the attorney's duties for which he was employed); McArdle, 705 F.3d at 754 (the issues of adherence to district policies and its finances were all matters within the ...

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