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Calderone v. City of Chicago

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

September 17, 2019

Keli Calderone, Plaintiff,
City of Chicago; Tenaya Williams; and Alicia Tate-Nadeau, Defendants.


          Honorable Thomas M. Durkin United States District Judge

         Keli 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.

         Legal Standard

         A Rule 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, 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.' ” 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. 2018).


         As 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.

         Calderone 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.

         Calderone 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.

         Defendant 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.

         Calderone 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 (Count VI).

         Analysis I.

         Second Amendment

         A. Substantive Violation

         Calderone 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 ...

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