United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge
Calderone alleges that her employer, the City of Chicago,
violated her Second and Fourteenth Amendment rights when she
was fired after shooting another person with a gun during an
altercation. The City and the Calderone's supervisors-
Tenaya Williams and Alicia Tate-Nadeau-have moved to dismiss
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). R. 23; R. 25. Those motions are granted.
12(b)(6) motion challenges the “sufficiency of the
complaint.” Berger v. Nat'l Collegiate Athletic
Assoc., 843 F.3d 285, 289 (7th Cir. 2016). 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 a 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,
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.' ” Boucher v. Fin. Sys. of Green Bay,
Inc., 880 F.3d 362, 366 (7th Cir. 2018) (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.
Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir.
Calderone was driving her car on July 19, 2017, she was
involved in an altercation with another driver. At this early
stage of the case, the record does not reflect what triggered
the dispute. But a video recording submitted with
Defendants' motions shows that, at one point, the other
driver threw a drink into Calderone's car. The other
driver then pulled off the road into a driveway. Calderone
followed, stopping her car behind the other driver's car
and partially blocking a lane of traffic. Calderone and the
other driver each got out of their cars and began arguing.
After arguing for about one minute, the other driver got back
in her car and attempted to drive away, but Calderone stood
in front of the car, blocking its path. The other driver got
out of her car again and pushed Calderone out of the way
several times, eventually throwing her to the ground.
Calderone then shot the other driver with a gun.
was arrested and charged with attempted murder. She was
indicted in August 2017. She argued self-defense and was
acquitted after a bench trial in October 2018.
is employed as a “Police Communications Operator
II” (“PCO II”) with the City of
Chicago's Office of Emergency Management &
Communications (“OEMC”). After her arrest but
before her acquittal, Defendants administratively charged
Calderone with violating City of Chicago Personnel Rules
XVIII, Section 1, Subparts 15, 23, and 50, which prohibit:
Engaging in any act or conduct prohibited by the Municipal
Code of the City of Chicago, the Illinois Compiled Statutes,
applicable laws of other states, or federal statutes.
Discourteous treatment, including verbal abuse, of any other
City employee or member of the public.
Provoking or inciting another employee or member of the
public to engage in such conduct.
Conduct unbecoming an officer or public employee.
R. 20 ¶¶ 24, 65. The charge under Subpart 15
specifically noted that Calderone had “violated 720
ILCS 5/12-3.05(e)(1) (‘Aggravated Battery-Offense Based
on Use of a Firearm').” Id. ¶ 24.
Tenaya Williams, OEMC's Deputy Director of Legal/Labor,
informed Calderone that OEMC was seeking Calderone's
termination. A pre-termination hearing was conducted, which
Calderone alleges was a “sham . . . pervaded by
negative animus [and] hype from negative press about the
shooting, [and] hype and bias and concern based on unrelated
police shootings such as the Van Dyke case.” R. 20
¶ 28. After the hearing, OEMC's Executive Director,
Defendant Alicia Tate-Nadeau, informed Calderone that she was
terminated, effective December 6, 2017.
was reinstated sometime after her acquittal in October 2018.
See R. 23 at 11 n.6. An arbitration hearing to
determine back-pay owed to Calderone took place on February
14, 2019. See id.; R. 33 at 11-12. Calderone brings
the following claims: (1) Second Amendment violation for
retaliatory termination (Counts I & III); (2) Fourteenth
Amendment deprivation of property interest in employment
against the individual defendants (Count II); (3) Fourteenth
Amendment deprivation of liberty interest in occupation
(Count V); (4) the City's personnel rules are
unconstitutionally vague and overbroad (Count IV); and (5)
indemnification of the individual defendants by the City
alleges that she was fired in retaliation for exercising her
Second Amendment right to bear arms for self-defense. Since
most employment-retaliation claims brought under § 1983
involve First Amendment rights, this Court has previously
adopted the same framework in analogous challenges that
involve the Second Amendment. See Kole v. Village of
Norridge, 2017 WL 5128989, at *18-19 (N.D. Ill. Nov. 6,
2017); see also Thaddeus-X v. Blatter, 175 F.3d 378,
387 (6th Cir. 1999) (“[C]ertain provisions of the
Constitution define individual rights with which the
government generally cannot interfere-actions taken pursuant
to those rights are ‘protected' by the
Constitution.”). On a retaliation claim, a plaintiff
must prove that “(1) he engaged in protected activity;
(2) he suffered a ...