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Porter v. Board of Education of City of Chicago

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

April 25, 2018

BOARD OF EDUCATION OF THE CITY OF CHICAGO; KAREN SAFFOLD, individually; BARBARA BYRD-BENNETT, individually; FORREST CLAYPOOL individually; JAMES SULLIVAN, individually; JAMES BEBLEY, individually; CYNTHIA HARRIS, individually; CHARLES LITTLE, individually; JOHN LAMANTIA, individually; and RONALD MARMER, Defendants.


          John J. Tharp, Jr United States District Judge

         After litigating various claims in the Circuit Court of Cook County against the Board of Education of the City of Chicago (the “Board”) and its employees for their alleged retaliatory conduct, Phyllis Porter filed this lawsuit in federal court alleging violations of her constitutional rights under 42 U.S.C. § 1983 (“Section 1983”). Porter, an education administrator and consultant, claims that a Chicago Public Schools (“CPS”) supervisor offered to steer contracts to Porter and her company in exchange for $10, 000. Porter claims that she was retaliated against in violation of her First and Fourteenth Amendment rights after she refused to pay the bribe and reported it to law enforcement authorities. The Board moves to dismiss Porter's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Because Porter's claim against the Board is barred by res judicata, and is otherwise insufficient to state a claim for Monell liability, the Court grants the Board's motion to dismiss.


         Porter is an education administrator and consultant. She lives in Chicago and runs a business called PPES, Inc., which provides consulting and professional development services to CPS. The Board is a quasi-municipal body that manages CPS. Forrest Claypool and Barbara Byrd-Bennett were Chief Executive Officers for CPS. James Sullivan was employed by the Board as the Inspector General for CPS. James Bebley, Ronald Marmer, Cynthia Harris, Charles Little, and John Lamatia were employed by the Board as senior leaders. Karen Saffold was employed by the Board as a supervisor to certain CPS schools.

         In 2006, Porter and PPES had agreements to provide services to approximately 115 CPS schools. In July of that year, Saffold offered to help Porter obtain contracts with CPS in exchange for a $10, 000 bribe payment from Porter. A CPS principal, Dushon Brown, was present when Saffold made the offer. Porter rejected Saffold's offer and reported her conduct to Sullivan, Byrd-Bennett, Claypool, Bebley, Harris, Little, Lamantia, and Marmer. She also reported the bribe solicitation to the FBI and the Cook County State's Attorney's Office.

         Saffold retaliated against Porter for speaking out about the incident. Saffold took steps to deny Porter and PPES business opportunities with CPS. She worked with Byrd-Bennett and others to devise a plan to blacklist Porter from CPS schools and refused to pay Porter for the work she had already completed. Sometime after November 2009, the principal for a CPS school, Curtis Elementary School, told Porter that Saffold instructed him not to do business with PPES or Porter. Saffold told the principal to use a different company, Progressive Group, and directed the budget manager to pay Progressive Group even though the company did not provide any services to the school. In addition, the Board and/or the individual defendants changed certain policies to prevent Porter from getting contracts, hired an investigator to tell parents and principals that Porter was under investigation, and interfered with Porter's payment process, causing her to lose a contract.

         According to the complaint, the Board and/or the individual defendants had evidence that Saffold asked Porter for a bribe but covered up the misconduct and took steps to destroy or hide evidence that could implicate Saffold. The Inspector General for CPS, James Sullivan, who was assigned to investigate Saffold, conspired with Saffold and refused to investigate her.

         Porter also alleges, on information and belief, that Saffold was engaged in a conspiracy to steer CPS contracts to other vendors and contractors in exchange for millions of dollars in kickbacks and bribes. Hank Johnson, an agent or contractor for a CPS vendor that supplied copiers and printers, told Porter that Saffold demanded a $500 kickback for each copier he sold to the CPS schools that Saffold supervised. The payment was in exchange for Johnson's ability to do business with those schools. Principals of those schools told Porter that Saffold pressured them to purchase copiers from Johnson when they did not actually need the copiers.

         In addition to reporting Saffold's conduct to law enforcement authorities, Porter also filed a lawsuit in 2008 in Cook County Circuit Court against the Board, Saffold, and others for their retaliatory conduct. In that lawsuit, Porter ultimately filed a sixth amended complaint in September 2016 alleging breach of contract, defamation, and intentional infliction of emotional distress claims. In April 2017, Judge James E. Snyder entered a judgment in favor of Porter and against the Board for $75, 000, plus costs, on Porter's breach of contract claims.

         In this lawsuit, Porter's amended complaint[2] alleges one count against the Board for violations of her First and Fourteenth Amendment rights (Count I). She also brings multiple counts against the individual defendants for conspiracy to violate her First and Fourteenth Amendment rights (Counts II-IV). In addition, the complaint includes an indemnification claim against the Board for any damages caused by the individual defendants while acting in the scope of their employment (Count V). After the Board's motion to dismiss was briefed, Saffold, Sullivan, Bebley, Harris, Little, Lamantia, and Marmer were dismissed from the case based on Porter's failure to timely serve them. Porter subsequently voluntarily dismissed her claims against Claypool and Byrd-Bennett. Therefore, the only remaining claim in the case is against the Board.


         Porter's claim against the Board seeks to hold the governmental entity responsible for the alleged retaliatory conduct of its employees. Porter asserts that the Board had several de facto policies, practices, or customs that were pervasive and widespread, including: concealing or suppressing misconduct by senior leadership; failing to maintain accurate and complete records of complaints and investigations of misconduct by senior leadership officials; hiring and retaining unqualified employees and failing to properly train, monitor, or supervise senior leaders; and maintaining a “code of silence” resulting in a refusal or failure to report misconduct. Porter claims that these de facto policies encouraged or motivated Saffold and Byrd-Bennett to engage in conduct that violated Porter's constitutional rights. Specifically, the alleged policies allowed Saffold and Byrd-Bennett to retaliate against Porter for speaking out about Saffold's misconduct, in violation of Porter's First Amendment right to free speech and her Fourteenth Amendment right to equal protection. Porter also claims that Saffold and Byrd-Bennett violated her Fourteenth Amendment right to due process by cancelling her contracts.

         The Board moves to dismiss Porter's complaint on several grounds. First, the Board argues that Porter's claim against it is barred by the doctrine of res judicata. Second, the Board asserts that Porter has failed to allege sufficient facts to plausibly allege a violation of her First or Fourteenth Amendment rights. The Board also argues that Porter's complaint does not adequately plead a basis for municipal liability under Monell. Finally, the Board asserts that Porter's claim is time-barred.

         I. Res Judicata

         The Board argues that Porter's claim is barred by res judicata because it could have been litigated in the state court lawsuit that Porter previously filed against the Board. Res judicata bars a subsequent lawsuit between the same parties involving the same cause of action if a final judgment on the merits was entered in a prior lawsuit. River Park, Inc. v. City of Highland Park, 703 N.E.2d 883, 889 (Ill. 1998). Because res judicata is an affirmative defense, it should be raised in a motion for judgment on the pleading under Rule 12(c) rather than a motion to dismiss under Rule 12(b)(6). Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. ...

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