United States District Court, S.D. Illinois
MEMORANDUM & ORDER
HERNDON, UNITED STATES DISTRICT JUDGE
the Court is defendants' motion to dismiss
plaintiff's wrongful termination and defamation complaint
pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1) (Doc. 7).
Based on the following, defendant's motion to dismiss is
GRANTED; all remaining state-law claims are DISMISSED for
lack of subject matter jurisdiction.
January 2017, plaintiff Allison Austin (“Austin”)
filed a four-count complaint naming defendants and alleging
various civil-rights and common law violations (Doc. 1).
Austin alleged in January 2015, she entered into an
employment contract (“Agreement”) with defendants
where it was agreed she would serve a three-year term as
Executive Director of the Marion County Housing Authority
(Id. at 3; Doc. 16). In December 2016, defendants
advised she was being terminated “for cause”
without providing notice or allegations of misconduct (Doc.
claimed to remain in compliance with stipulations governing
the Agreement, and did not act in any manner construed as a
“grave misconduct, ” which-according to the
Agreement (Doc. 16)-would solely justify termination
“for cause” (Id. at 4). Moreover, Austin
contended defendants ignored repeated requests for an
explanation about being fired (Id.), and further,
damaged her reputation by disseminating news of her
termination through local media outlets (Id. at 6,
9). She asserted claims of deprivation of property interest
and liberty interest without due process under the Fourteenth
Amendment, breach of contract, and defamation. For relief she
requested damages and costs (Doc. 1).
response, defendants filed a motion to dismiss for failure to
state a claim and lack of subject matter jurisdiction over
common law claims-assuming deprivation of property and
liberty interest counts are initially dismissed (Doc. 7).
Defendants argue, inter alia, Austin has no protectable
property interest in employment because said interest was
created and defined by terms of the Agreement (Id.
at 2-3); and, no protectable liberty interest based on
reputational loss due to her failure to demonstrate
defendants caused her alleged defamation injury (Doc. 14).
retort, Austin argues, among other things, state law governs
whether she maintains a protectable property interest (Doc.
13 at 3); and, in Illinois, public employees who are
terminated “for cause” may not be terminated
without due process (Id. at 4). Furthermore, she
declares sufficient pleading of an occupational liberty claim
due to defendant's alleged false and defamatory public
statements (Id. at 8). In reply, defendants contend
the occupational liberty claim must fail, as no legal basis
to assert a violation of liberty interests exists under the
facts of this case (Doc. 14).
STANDARD OF REVIEW
12(b)(6) permits a motion to dismiss for failure to state a
claim upon which relief can be granted. Hallinan v.
Fraternal Order of Police Chi. Lodge No. 7, 570 F.3d
811, 820 (7th Cir. 2009). The Supreme Court explained in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007), that Rule 12(6)(b) dismissal is warranted if the
complaint fails to set forth “enough facts to state a
claim to relief that is plausible on its face.” Notice
pleading remains all that is required in a complaint, even
though federal pleading standards were overhauled by
Twombly and Ashcroft v. Iqbal, 556 U.S. 662
(2009). “A plaintiff still must provide only
‘enough detail to give the defendant fair notice of
what the claim is and the grounds upon which it rests and,
through his allegations, show that it is plausible, rather
than merely speculative, that he is entitled to relief.'
” Tamayo v. Blagojevich, 526 F.3d 1074, 1083
(7th Cir. 2008) (citation omitted).
Seventh Circuit offers further instruction on what a civil
action must allege to endure 12(b)(6) dismissal. In Pugh
v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008), the
Court reiterated the standard: “surviving a Rule
12(b)(6) motion requires more than labels and
conclusions”; the complaint's allegations must
“raise a right to relief above the speculative
level.” A plaintiff's claim “must be
plausible on its face, ” that is, “the complaint
must establish a non-negligible probability that the claim is
valid.” Smith v. Med. Benefit Admin. Grp.,
Inc., 639 F.3d 277, 281 (7th Cir. 2011).
12(b)(1) requires dismissal if the Court lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(b)(1). When a
defendant makes a 12(b)(1) challenge, the plaintiff bears the
burden of establishing jurisdiction. See United
Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946
(7th Cir. 2003), overruled on other grounds by Minn-Chem,
Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012) (en
banc) (burden of proof 12(b)(1) issue is on party asserting
jurisdiction). “[A] district court must accept as true
all well-pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff.” St.
John's United Church of Christ v. City of Chi., 502
F.3d 616, 625 (7th Cir. 2007). Yet, a court may receive and
weigh evidence outside allegations in the complaint to
determine if it has subject matter over the case. See
a question of law determines whether specific employment
actions affecting public employees allude to constitutionally
protected property interests. See Cole v. Milwaukee Area
Tech. Coll. Dist., 634 F.3d 901, 904 (7th Cir. 2011).
“The Fourteenth Amendment's Due Process Clause does
not itself create any property interests. It protects
property interests that ‘are created and . . . defined
by existing rules or understandings that stem from an
independent source such as state law.' ” Dibble
v. Quinn, 793 F.3d 803, 808 (7th Cir. 2015) (quoting
Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
An employee must present-not just an optimistic belief-but a
legitimate, legal, and factual entitlement to employment to
establish a discernible property right. See Moore v.
Muncie Police and Fire Merit Comm'n, 312 F.3d 322,
326-27 (7th Cir. 2002) (stating employee has no property
interest in prospective personnel matters).
suit derives from an Agreement entered into with defendants
where it was established she would serve a 3-year term-from
January 5, 2015 to January 5, 2018-as the Executive Director
of the Housing Authority of the County of ...