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Banske v. City of Calumet City

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

January 11, 2018

RICHARD BANSKE, Plaintiff,
v.
CITY OF CALUMET CITY, a local unit of government; MICHELLE QUALKINBUSH in her individual capacity; JAMES GALGAN in his individual capacity; and JAMES PATTON in his individual capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          Harry D. Leinenweber, Judge United States District Court

         Defendants City of Calumet City, Michelle Qualkinbush, James Galgan, and James Patton (“Defendants”) move [ECF No. 11] to dismiss Plaintiff Richard Banske's (“Banske”) Complaint [ECF No. 1] for failure to state a claim. For the reasons stated herein, Defendants' Motion to Dismiss is granted, and Banske's Complaint is dismissed without prejudice.

         I. BACKGROUND

         Plaintiff Richard Banske began serving as a firefighter in the Calumet City Fire Department in 1992. In 2009, Banske was promoted to Deputy Chief of the Fire Department. (Compl. ¶¶ 7-8.) That same year, Banske created a Facebook account. According to his Complaint, Banske thereafter began to post political commentary on his Facebook page. (Id. ¶¶ 12-13.) Banske does not specify the nature or content of these comments other than to say that they were “matters of public concern” and not “expressions of private grievances.” (Id. ¶ 14.)

         Banske alleges that around September 2016, Defendant Michelle Qualkinbush (“Qualkinbush”) (then and now the Mayor of Calumet City) caught wind - allegedly via some anonymous messenger - of Banske's political Facebook posts, and that Banske, Qualkinbush's assistant (not a defendant here), and Defendant James Patton (“Patton”), then the Calumet City Director of Personnel, had a phone conversation about these posts. (Id. ¶¶ 19-20.) Banske states that during that conversation, neither the assistant nor Patton directed him to stop posting political commentary on Facebook. (Id. ¶ 21.) The Complaint does not further describe this conversation.

         Finally, Banske avers that in early December 2016, Defendant Fire Chief James Galgan (“Galgan”) called Banske to his office and informed him that due to “concerns over [Banske's] private political views in his Facebook posts, ” Galgan and Qualkinbush wanted to terminate Banske's employment. (Id. ¶ 23.) Banske was let go that same day. (Id. ¶¶ 24-25.)

         Banske now sues Calumet City, as well as Qualkinbush, Patton, and Galgan (all in their individual capacities), claiming First Amendment retaliation under 42 U.S.C. § 1983 (Counts II and III). He also sues all Defendants on the same theory under the Illinois Constitution (Count IV). For reasons that will become clear below, the Court first considers these claims before turning to Count I, which seeks indemnification for the individual Defendants from Calumet City. Defendants now move to dismiss the Complaint in full.

         II. LEGAL STANDARD

         To survive a motion to dismiss, a complaint must contain “sufficient factual matter” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Put another way, the allegations must raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 555). In evaluating the Complaint, the Court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of Plaintiff. Iqbal, 556 U.S. at 678.

         III. DISCUSSION

         Defendants move to dismiss Banske's Complaint for failure to state a claim under Rule 12(b)(6). Fed.R.Civ.P. 12(b)(6). Defendants raise two central arguments: First, Banske fails to state a claim because his Complaint does not plead the facts necessary to establish that he engaged in constitutionally protected speech; and second, Banske fails to state a claim because the Deputy Fire Chief is a “policymaking” position, and thus one that Defendants may fire someone from simply for engaging in speech that could undermine the policy or political goals of Defendants. (Defs.' Mem. in Supp. of Mot. to Dismiss (“Defs.' Mem.”) at 5, ECF No. 13 (citing Hagan v. Quinn, 867 F.3d 816, 820 (7th Cir. 2017).)

         The Court agrees with Defendants' first argument in substance, and Defendants' Motion is granted.

         A. First Amendment Retaliation Claims (Counts II and III)

         To establish a First Amendment retaliation claim, a public employee must show that (1) he engaged in constitutionally protected speech; (2) he suffered a deprivation because of his employer's action; and (3) his protected speech was a but-for cause of the employer's action. Hagan v. Quinn,867 F.3d 816, 822 (7th Cir. ...


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