Presley et al v. Board of School Directors of Rankin School District No. 98, an Illinois Local Governmental Entity et al

Filing 38

ORDER AND OPINION granting 28 Defendants' Motion for Summary Judgment. Civil Case Terminated. Entered by Chief Judge James E. Shadid on 12/16/2016. (RK, ilcd)

E-FILED

Friday, 16 December, 2016 09:50:01 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JAY PRESLEY and TAMMY PRESLEY,
Plaintiffs,
v.
BOARD OF SCHOOL DIRECTORS OF
RANKIN SCHOOL DISTRICT NO. 98,
et al,
Defendants.

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Case No. 14-1055

ORDER AND OPINION
This matter is now before the Court on Defendants’ Motion [28] for Summary Judgment.
For the reasons set forth below, Defendants’ Motion [28] is GRANTED.
BACKGROUND
The following background is taken from Defendants’ Statement of Undisputed Material
Facts. See ECF Doc. 28. Plaintiff Tammy Presley was employed as a secretary at Rankin School
District No. 98 (the “School District”) from 2007 until her involuntary termination on December
2, 2013. Plaintiff Jay Presley is Tammy Presley’s husband and an elected member of Defendant
Board of Education of Rankin School District No. 98 (“the Board”). He was elected to a fouryear term on the Board in 2011 and reelected in 2016. Plaintiffs brought this action under Section
1983 and Section 9-102 of the Illinois Tort Immunity Act, naming as Defendants the Board,
Superintendent Steven Johnson, Board President Debbie Lowman, Board Secretary Julia Nelms,
and Board members Timothy Gay and Lyle Secrest. 1 Jay Presley alleges that his wife Tammy’s

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The Superintendent and the members of the Board who voted to terminate Tammy are being sued in their
individual capacity.

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termination was in retaliation for exercising his constitutional right to free speech in an email he
sent to the Board regarding the School District’s Administration and its use of funds. Plaintiffs
further allege that the Defendants’ conduct infringed on their liberty interest of intimate
association with their spouse. ECF Doc. 28, at ¶¶ 1-7.
Tammy Presley’s supervisors at the School District were the Principal and the
Superintendent, Steven Johnson. The first incident Tammy recalls that is relevant to her
termination was on May 3, 2013, when she verbally complained to Superintendent Johnson that
Carole Delahunt, the school bookkeeper, was an “adult bully” and used profane language at
work. Tammy speculated that Superintendent Johnson did not look into her complaint, but
admitted that she never followed up with him either. Id. Tammy received a “great evaluation and
raise” from Superintendent Johnson on June 13, 2013. On June 18, 2013, Tammy exchanged
emails with Delahunt and Johnson regarding book fees that were waived for Delahunt’s nephews
without proper documentation. On August 1, 2013, Superintendent Johnson issued a notice to all
office employees, including Tammy, advising that “[o]n the occasion(s) when parents, guardians,
or community members contact our office, all received issues, concerns or complaints are to be
directed to my office. I will then direct the received issues, concerns or complaints as needed.”
Id. at ¶¶ 8-16.
On August 19, 2013, after first raising the issue with Superintendent Johnson, Tammy
sent an email to the Board members about Tammy and another teacher’s concern that students
would be required to purchase planners. See ECF Doc. 34, at ¶ 8. On August 30, 2013,
Superintendent Johnson issued a Memorandum to Tammy, titled “Re: Notice of Direction,”
stating that Tammy had admitted to forwarding an email chain on August 19, 2013, from her

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work/school email account to members of the Board without notifying the Superintendent first.
Specifically, the letter stated:
In my conversation with you, I communicated that all school concerns that are
brought to your attention should be shared with the Superintendent prior to a
concern being raised with the Board of Education. This policy is designed to
resolve issues at the lowest possible level. If issues are still not resolved to the
satisfaction of all parties, concerned parties are free to address the issue through
the chain of command up to the Board of Education.
If you receive information during the work day, through district email, or which
otherwise pertains to school business which suggests that a school issue needs to
be addressed, you are directed to raise the matter with me or other appropriate
administrative personnel prior to raising the matter with members of the Board of
Education. In short, you are directed to use the chain of command to address all
school issues. Failure to follow this directive may result in discipline up to and
including discharge from employment.
In response, Tammy wrote the following on the Memorandum:
8/30/13- I disagree w/this statement. Action by teacher had gone through proper
chain + situation was not handled before I sent to Board. As parent I talked to
teacher and she or I did not want to purchase assignment notebooks from our
personal accounts.
ECF Doc. 28, at ¶¶ 17-19.
On September 5, 2013, Tammy Spoke to Sarah Cummins at a little league baseball game.
Cummins told Tammy that she had twice sent an email to the Board about the band program but
had not yet heard a response. Tammy asked Cummins to forward her the email and she would
make sure to pass it along to the Board. At 10:16 p.m. on September 5, 2013, Tammy emailed
Board President Lowman the following message:
HelloI was talking to a Spring Lake parent tonight and I was very upset to hear that she
had sent a letter to our School Board President, Debbie Lowman about the band
program and she hadn’t heard a word back from her. As an employee of the
school many parents come to me with questions and comments. I asked Mrs.
Cummings forward the letter to me and I would forward to ALL board members. I
think that it is very inconsiderate not to respond to a parent who has their time to
type a letter up and send it to our school board. Don’t know how many other
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items are not being shared with the other school board members, but I believe the
board is to operate as a unit, the board is not one individual. . . .
At 10:17 a.m. on September 6, 2013, Tammy forwarded the email from Cummins to all members
of the Board. She also exchanged several emails with President Lowman, who reminded Tammy
of the proper chain of command. Id. at ¶¶ 21-24.
On September 16, 2013, Jay Presley sent an email to Board President Lowman setting
forth a list of his concerns to be addressed at the next Board meeting. Jay forwarded this email to
Tammy’s personal email account on December 3, 2013, the day after she was terminated. Jay’s
email raised many questions, including: Superintendent Johnson’s reprimand of an “employee”
for “going around [the] administration with an issue,” bussing schedules, book fee collection
practices, and the nature of the bookkeeper’s employment. Tammy testified that she was aware of
some portions of the email before it was sent. Id. at ¶¶ 25-28.
On September 25, 2013, Tammy filed a written complaint against Delahunt for bullying
and making threatening remarks, which she sent to the Board after discussing it with
Superintendent Johnson. On September 30, 2013, Tammy sent a request to the Board for a
special hearing on her complaint against Delahunt. Shortly thereafter, Delahunt filed her own
complaint against Tammy. Upon learning of Delahunt’s complaint, Tammy sent an email to the
Board and Superintendent Johnson on October 7, 2013, wherein she accused Johnson of having
“a personal vendetta against” her. In the same email, she questioned whether the Board was
taking her complaint seriously, remarking that “Sandy Hook School didn’t think it [bullying] was
serious either.” On October 18, 2013, Board President Lowman emailed Tammy to inform her
that her complaint would be considered at the next Board meeting on October 23, 2013. Id. at ¶¶
29-34.

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On November 6, 2013, the Board issued a “Notice of Direction” memorandum to
Tammy, stating:
This Notice of Direction follows receipt of a complaint regarding your behavior
and Board consideration of the matter at a meeting held on October 23, 2013.
Specifically, the Board of Education has determined that you have, on multiple
occasions, made comments and provided non-verbal communication to persons
attempting to meet with Carole Delahunt in her office which have had the effect
of discouraging these persons from doing so in an attempt to ostracize Ms.
Delahunt from staff and others in the school community. The Board of Education
finds these actions unprofessional and directs you to refrain from any such
conduct in the future . . . .
In short, you are direct to, at all times in the future, conform your conduct in
accordance with these expectations. Failure to follow this directive may result in
discipline up to and including discharge from employment.
Tammy denied receiving the document before she was terminated, but stated that the contents of
the memorandum tracked remarks she received from the Board at the meeting on October 23,
2013. On November 15, 2013, Superintendent Johnson issued another written direction to
Tammy and her colleague Trudy Dodson prohibiting them from using or displaying their “WTF”
list in the office. Id. at ¶¶ 35-36.
On November 26, 2013, Superintendent Johnson met with Tammy and gave her another
memorandum documenting her suspension without pay until December 2, 2013, when the Board
would consider disciplinary action on the recommendation of the Administration. At the
December 2 meeting, Tammy read her response to the November 26 memorandum to the Board.
In her response, Tammy stated that she spoke with Superintendent Johnson and confirmed that
the September 5 email forwarding Cummin’s concerns was the only reason for her suspension
and possible termination. No reference was made to Jay Presley’s email. Superintendent Johnson
presented a written document to the Board for consideration at the December 2 meeting, wherein
he recommended that Tammy be terminated for numerous reasons, including her failure to

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follow the chain of command. Tammy was notified of her termination in a letter dated December
3, 2013. ¶¶ 37-41.
Plaintiffs’ response lists only one fact from Defendants’ Motion for Summary Judgment
as “disputed,” but sets forth 15 Additional Material Facts. Plaintiffs assert that Superintendent
Johnson resigned at the Board meeting on September 26, 2013, and further allege the following:
2. Superintendent Johnson after stating his resignation said that either Jay Presley
or Tammy Presley [sic] should be required to resign their position because there
was a conflict between Jay Presley’s interest as a Board member and Tammy
Presley’s interest as a non-union employee of the office staff. PltfEx:2 Jay Presley
Dec; See also ECF 28-3; TammyPresleyDep:138-39.
ECF Doc. 32-1, at 5.
The remaining portions of Plaintiffs’ Additional Material Facts largely recite the undisputed facts
in Defendants’ motion.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Summary judgment is mandated “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Id. at 322-23. However, “[t]he burden on the non-movant is not onerous.” Waldridge v.
American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994). Rather, the non-movant “need only
come forward with appropriate evidence demonstrating that there is a pending dispute of

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material fact” and “may rely on affidavits or any other materials of the kind identified in Rule
56(c).” Id.
ANALYSIS
Plaintiffs’ Amended Complaint asserts three claims: (1) Jay Presley’s First Amendment
retaliation claim, (2) Jay Presley’s First Amendment intimate association claim, and (3) Tammy
Presley’s First Amendment intimate association claim. ECF Doc. 13. Tammy Presley does not
raise a First Amendment retaliation claim for her speech.
(1) Jay Presley’s First Amendment Retaliation Claim
Plaintiffs’ first claim alleges that Tammy Presley was suspended and later terminated in
retaliation for Jay Presley’s protected speech. A public employee’s § 1983 claim for retaliation in
violation of First Amendment rights is evaluated under a three-step analysis stemming from the
Supreme Court’s decision in Mt. Healthy City School District Board of Education v. Doyle, 429
U.S. 274 (1977). First, the employee’s speech must be constitutionally protected. Second, “the
plaintiff must establish that the speech was a substantial or motivating factor in the retaliatory
action.” Third, the defendant may show that “the same action would have been taken in the
absence of the employee’s protected speech.” Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004).
(a) Whether Jay Presley’s Speech was Constitutionally Protected
The first issue is whether Jay Presley’s email to the Board was constitutionally protected
speech. “Whether a public employee’s speech is constitutionally protected depends on ‘whether
the employee spoke as a citizen on a matter of public concern.’” Brown v. Chicago Board of
Education, 824 F.3d 713, 715 (7th Cir. 2016) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)). An employee does not speak as a citizen when he makes statements pursuant to his
official duties. Garcetti, 547 U.S. at 421. Additionally, “the interest of the employee as a citizen

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in commenting upon matters of public concern” must “outweigh[] the interest of the State as an
employer in promoting the efficiency of the public services it performs through its employees.”
Nagle v. Vill. Of Calumet Park, 554 F.3d 1106, 1123 (7th Cir. 2009) (quoting Sigsworth v. City of
Aurora, 487 F.3d 506, 509 (7th Cir. 2007)).
Here, Jay Presley’s email was in response to the Board president’s request for agenda
items for the next Board meeting. It set forth a list of his questions and concerns, including the
notice of direction “an employee” (Tammy) received for “going around the administration” and
raising questions to the Board about the planners, scheduling of busses, residency requirements,
fees, class schedules, and the math program. At the conclusion of the email, Jay writes: “[a]s a
board member, I am not here to manage our administration but to be more informed about how
we conduct business . . . . It is our board responsibility to hold individuals ‘accountable’ for
managing our school . . . .” [T.Presley Dep. Ex. 13].
Viewing the email as a whole, it appears that Jay Presley’s speech was “pursuant to his
official duties” as a Board member, rather than “as a citizen.” Brown, 824 F.3d at 715. Under
Garcetti, public employees speaking pursuant to their official duties are speaking as employees,
not citizens, “and thus are not protected by the First Amendment regardless of the content of
their speech.” Spiegla, 481 F.3d at 965. In other words, because Jay Presley was speaking as a
Board member, his speech was not protected by the First Amendment; thus, the Court need not
determine whether his speech was a matter of public concern nor balance his interest against that
of the School District.
Plaintiff asserts that Garcetti is inapposite because Jay Presley is an elected Board
member tasked with making the education policy for the District, rather than a “public
employee.” Seventh Circuit case law distinguishes public employees from policymaking officials

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in the context of political expression. Fuerst v. Clarke, 454 F.3d 770, 772 (7th Cir. 2006)
(“Public officials do not violate the First Amendment when they deny for political reasons
appointments or promotions to jobs that involve the making of policy or the giving of
confidential policy-related advice to a policymaker.”); Riley v. Blagojevich, 425 F.3d 357, 359
(7th Cir. 2005) (public officials cannot be fired based on political affiliation “unless the nature of
the job makes political loyalty a valid qualification”). However, the distinction does not support
Plaintiffs’ argument because public officials are given wider latitude to base employment
decisions on otherwise protected expression (political affiliation) when the job involves making
of policy or giving confidential advice. Fuerst, 454 F.3d at 772. Here, Plaintiffs do not claim that
Tammy Presley was fired because of her or Jay’s political affiliation, so the distinction is
immaterial. Thus, Plaintiffs have failed to establish that Jay Presley’s speech was constitutionally
protected as required under the first prong of Mt. Healthy’s First Amendment retaliation analysis.
(b) Jay Presley’s Speech was not a Substantial or Motivating Factor in the
Retaliatory Action
Assuming arguendo that Jay Presley was speaking “as a citizen,” and further that his
speech was addressing “a matter of public concern” Connick v. Myers, 461 U.S. 138, 147 (1983),
that outweighed the State’s interest in efficiency, Sigsworth, 487 F.3d at 509, Plaintiff cannot
establish the second prong of Mt. Healthy’s First Amendment retaliation analysis—that the
speech was a substantial or motivating factor in the retaliatory action. Spiegla, 371 F.3d at 935.
The only causal connection between Jay’s speech and Tammy’s termination relates to Plaintiffs’
second Additional Material Fact, which alleges that:
2. Superintendent Johnson after stating his resignation said that either Jay Presley
or Tammy Presley [sic] should be required to resign their position because there
was a conflict between Jay Presley’s interest as a Board member and Tammy
Presley’s interest as a non-union employee of the office staff. PltfEx:2 Jay Presley
Dec; See also ECF 28-3; TammyPresleyDep:138-39.
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ECF Doc 32-1, at 5.
In support of this statement, Plaintiff provides two citations: one to a purported declaration by
Jay Presley, and one to Tammy Presley’s deposition transcript. However, Plaintiffs never filed a
declaration by Jay Presley with the Court, even after Defendants’ reply brief brought the issue to
Plaintiffs’ attention.
Nor does the citation to the transcript of Tammy Presley’s deposition support Plaintiffs’
assertion:
Q. All right. It says on 9-23 of 2013 Mr. Johnson announces resignation one year
early to School Board at meeting. He also states that after reading his
resignation letter that he feels that Mr. Presley or Mrs. Presley should have to
resign their position. Were you at that School Board meeting?
A. No.
Q. Did you learn that from your husband?
A. Yes. Right here. December 3rd.
Q. Did you know that before December 3rd of 2013?
A. Actually I did but not from my husband.
Q. How did you know it?
A. Confidential information from School Board meetings. I was given
information by other School Board members. I was given information from
school staff. I was given information from other parents at different times.
Q. Well, I’m specifically, referring to where Mr. Johnson announces resignation
one year early to School Board at meeting.
A. Yes.
Q. Who told you that?
A. Lynn Kasinger. Oh, actually it was Stacy Stoller because Lynn Kasinger had
told her . . . . I thought it was Lynn but Stacy is the one that told me. I don’t
know where Stacy got her information.
Q. Was Stacy at the School Board meeting?
A. No. She’s a friend of ours, but I have no idea. We were at a track meet and she
told me and I was – I had absolutely no idea.
Q. And what did she – She told you that at the School Board Mr. Johnson had
announced his resignation and that – and that he felt Mr. or Mrs. Presley
should have to resign their position?
A. No, she didn’t state all that. She said she heard the good news that he was
resigning a year early.
Q. And who did she get that good news from?
A. I don’t know.

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Q. All right. And how about where Mr. Johnson told the School Board after
reading his resignation letter that he felt Mr. Presley or Mrs. Presley should
have to resign their position. Did you get that information before December
3rd of 2013?
A. I don’t recall when it was exactly that I heard that statement.
Q. And who did you hear it from?
A. Jay.
Q. And do you know if that was immediately after the School Board? He came
home from the School Board and said Mr. Johnson resigned and he feels that
one of us should have to resign our position[?]
A. I don’t recall how that came about. And maybe this was actually the first time I
heard about it. That’s why he sent it to me. To put on my timeline. I don’t
recall.
ECF Doc. 28-3, at 138-141.
Q. Okay. As you sit here today is there any other document, testimony,
information that you have as – that was cited by anybody before or after you
were fired as to a reason as to why you were fired?
A. No.
Q. Did it have anything to do with Jay being on the School Board?
A. No. Nobody said we’re going to fire you because Jay’s on the School Board.
Nobody’s verbally came out and said that to me.
Q. Did it have anything to do with the actions taken by Jay?
A. Well, we believe so.
Q. I’m saying do you have any information to support that?
A. The only information I have is that I’m a good employee. I was marked as a
good employee. I followed the rules. I was a good employee for seven years so
that’s my basis to . . .
Q. All right. Understood. I understand. But I guess what I’m saying is has
anybody written you a letter, told you, given you any information that any of
the bases that you were fired is for anything other than what you’ve testified
here to so far today?
A. Correct.
Id. at 198-200.
Likewise, the transcripts from Jay Presley’s deposition do not support Plaintiffs’ assertion
regarding the alleged statement by Superintendent Johnson:
Q. Do you have any documents or have you spoken to anybody that Tammy was
fired because she was married to you?
A. Do I have any documents?
Q. Or have you talked to anybody on the School Board or have any evidence that
Tammy was fired solely because she was married to you.
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A. I don’t know if a document exists that would state that.
Q. Have you ever seen a document that says that?
A. No.
Q. Have you ever talked to anybody who told you that?
A. No.
Q. Do you have any document or spoken to anybody who have told you that
Tammy was fired because you drafted the email to Debbie Lowman on
September 16th of 2013. . . ?
A. No.
ECF Doc. 28-4, at 37.
In order to survive the Defendants’ motion for summary judgment, Jay Presley must
demonstrate that his speech was a substantial or motivating factor in the decision to dismiss
Tammy Presley. Williams v. Seniff, 342 F.3d 774, 782 (7th Cir. 2003). The only evidence
Plaintiffs offer on this point is Superintendent Johnson’s alleged statement that either Jay or
Tammy should resign. As noted above, the citations to the record either do not exist (i.e., the
unfiled declaration) or do not support (i.e., Tammy Presley’s Deposition) that assertion. See Fed.
R. Civ. P. 56(e) (failing to properly support or address a fact); Fed. R. Civ. P. 56(c)(3) (“The
court need consider only the cited materials, but it may consider other materials in the record.”).
Plaintiffs cannot rely on Tammy Presley’s deposition testimony because her statements
are inadmissible hearsay. “[H]earsay is inadmissible in summary judgment proceedings to the
same extent that it is inadmissible in a trial, except that affidavits and depositions, which . . . are
not generally admissible at trial, are admissible in summary judgment proceedings to establish
the truth of what is attested or deposed . . . provided, of course, that the affiant’s or deponent’s
testimony would be admissible if he were testifying live.” Eisenstadt v. Centel Corp., 113 F.3d
738, 742 (7th Cir. 1997). Tammy’s testimony about Superintendent Johnson’s purported
statement is hearsay because it is an out of court statement offered to prove the truth of the
matter asserted, i.e., that Johnson made the comments attributed to him. Fed. R. Evid. 801(c).

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The statement is inadmissible because the declarant is alive and available to testify, and none of
the exceptions under Fed. R. Evid. 803 apply. And Plaintiffs may not rely on their own
deposition testimony to prove the statement made by Johnson because neither Tammy nor Jay
had firsthand knowledge of the statement. See Eisenstadt, 133 F.3d at 742. Finally, the hearsay
statement does not fall under Fed. R. Evid. 807’s residual exception because Plaintiffs could have
obtained affidavits from or deposed individuals present at the Board meeting when
Superintendent Johnson announced his resignation. Thus, Plaintiffs have failed to establish that
Jay Presley’s speech was protected and have further failed to present any evidence that the
decision to terminate Tammy Presley was motivated by Jay’s speech.
(2) Plaintiffs’ First Amendment Intimate Association Claims
“The Court of Appeals for the Seventh Circuit has not addressed retaliation in the context
of a spouse’s speech, but other courts have recognized such a claim as a violation of the right to
intimate association.” Cockroft v. Moore, 638 F. Supp. 2d 1024, 1027 (W.D. Wisc. 2009) (citing
Adler v. Pataki, 185 F.3d 35, 44 (2d Cir. 1999)); see also Norman-Nunnery v. Madison Area
Technical College, 625 F.3d 422, 433 (7th Cir. 2010) (reserving the question of whether a public
employer’s refusal to hire a person because of animosity toward that person’s spouse is an
actionable constitutional claim). Plaintiffs’ intimate association claim fails for the same reasons
as Jay Presley’s First Amendment retaliation claim—Plaintiffs have failed to provide any
evidence that the Defendants terminated Tammy because of her marriage to Jay. NormanNunnery, 625 F.3d at 433. At best, Plaintiffs have shown that at least some of the Defendants on
the Board were aware of Jay’s email. However, awareness of Jay’s speech is insufficient to show
that Defendants were motivated by his activities. Spiegla, 371 F.3d at 935.

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Plaintiffs failed to establish by a preponderance of the evidence a causal link between the
contested speech and Tammy’s termination. Spiegla, 371 F.3d at 941. In other words, Plaintiffs
have not presented any evidence to show “a motivating fact in the Defendants’ action was
retaliation.” Id. Moreover, Plaintiffs have not shown that Jay Presley’s email was protected
speech. Because Plaintiffs have failed to make a showing sufficient to establish the existence of
an element essential to their case and on which they will bear the burden of proof at trial,
Defendants are entitled to summary judgment in their favor. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).

CONCLUSION
For the reasons stated above, Defendants’ Motion [28] is GRANTED

This matter is now terminated.
Signed on this 16th day of December, 2016.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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