Craig v. Rich Township High School District 227 et al
Filing
22
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 2/19/2013. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRYAN CRAIG
Plaintiff,
v.
RICH TOWNSHIP HIGH SCHOOL DISTRICT
227; BOARD OF EDUCATION OF RICH
TOWNSHIP HIGH SCHOOL DISTRICT 227;
DONNA LEAK, in her capacity as
Superintendent of Rich Township High
School District 227; BETTY J. OWENS,
in her capacity as President, Board
of Education of Rich Township High
School District 227; SHEILA FRIDAY,
CHERYL COLEMAN, DAVID MORGAN,
EMMANUEL IMOUKHUEDE, AND SONYA
NORWOOD, in their capacities as
Board Members, Board of Education of
Rich Township High School District
227,
)
)
)
)
)
)
)
)
)
)
)
No. 12 C 7581
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Bryan Craig filed this lawsuit under 42 U.S.C.
§ 1983 against defendants Rich Township High School, District 227;
the Board of Education of Rich Township High School, District 227;
Dr. Donna Leak, in her official capacity as Superintendent of Rich
Township High School, District 227; Betty J. Owens, in her official
capacity as President of the Board of Education of Rich Township
High School, District 227; and Sheila Friday, Cheryl Coleman, David
Morgan, Emmanuel Imoukhuede, and Sonya Norwood, in their official
capacities as Board Members of the Board of Education of Rich
Township High School, District 227. Plaintiff alleges, in his onecount complaint, that defendants violated his constitutional rights
under the First and Fourteenth Amendments when they fired him after
he self-published the book “It’s Her Fault.”
Defendants move to
dismiss plaintiff’s complaint in its entirety.
For the reasons
given below, defendants’ motion is granted.
I.
According to plaintiff’s complaint, plaintiff was employed as
a tenured guidance counselor by Rich Township High School, District
227 (“the District”) and the Board of Education of Rich Township
High School, District 227 (“the Board”).
In July 2012, he self-
published a book entitled “It’s Her Fault.”
Plaintiff describes
the book as a “self-help book” about relationships between men and
women.
In September 2012, defendant Donna Leak sent plaintiff a
letter
indicating
that
there
had
been
an
investigation
into
concerns raised about the book’s publication and including a copy
of “charges” and “bill of particulars” brought against plaintiff.
In defendant Leak’s opinion, the charges provided good cause for a
recommendation for plaintiff’s dismissal. Indeed, on September 18,
2012, the Board issued a resolution, signed by the defendant Board
members, to effectuate plaintiff’s dismissal.
Instead of pursuing his right to a review of the Board’s
decision under state law, plaintiff filed this lawsuit.
2
He claims
that defendants have restrained his right to free speech and
retaliated against him in violation of the First and Fourteenth
Amendments.
II.
For purposes of deciding a motion to dismiss, I accept all
well-pleaded allegations as true and draw all reasonable inferences
in plaintiff’s favor.
Opp v. Office of State’s Attorney of Cook
County, 630 F.3d 616, 619 (7th Cir. 2010) (citations omitted). The
purpose of a motion to dismiss is to test the sufficiency of the
complaint, not to decide the merits.
Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990).
To state a claim upon which
relief can be granted, a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled to
relief.”
motion
to
Fed. R. Civ. P. 8(a)(2).
dismiss
is
not
high,
While “the bar to survive a
the
complaint
must
‘contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’”
Bonte v. U.S. Bank, N.A.,
624 F.3d 461, 463 (7th Cir. 2010) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1973 (2009)).
III.
Defendants
Amendment claim.
argue
that
plaintiff
has
not
stated
a
First
Evaluating plaintiff’s claim requires a three-
step analysis:
3
First, the court must determine whether the plaintiff’s
speech was constitutionally protected.
If so, then the
plaintiff must prove that the defendant’s actions were
motivated by the plaintiff’s constitutionally protected
speech.
Finally, if the plaintiff can demonstrate that
his constitutionally protected speech was a substantial
or motivating factor in the defendant’s actions, the
defendant is given the opportunity to demonstrate that it
would have taken the same action in the absence of the
plaintiff’s
exercise
of
his
rights
under
the
First
Amendment.
Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999) (citations
omitted).
The first step in this analysis is a question of law for the
court.
Id. (citations omitted).
If the plaintiff is speaking as
a citizen, as is the case here, see Bivens v. Trent, 591 F.3d 555,
560 (7th Cir. 2010) (discussing Garcetti v. Ceballos, 547 U.S. 410,
126 S.Ct. 1951 (2006)), this first step involves a two-part test
(“the Connick-Pickering test”).
Kokkinis, 185 F.3d at 843.
First, the court must determine whether the plaintiff’s
speech addressed a matter of public concern. See Connick
[v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684 (1983)].
If this hurdle is cleared, the court must then apply the
Pickering
balancing
test
to
4
determine
whether
“the
interests of the [plaintiff], as a citizen, in commenting
upon matters of public concern” outweigh “the interest of
the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.”
Pickering v. Board of Educ. of Township High Sch. Dist.
205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968).
Kokkinis, 185 F.3d at 843-44.
Even if the speech in question is on
a topic of public interest, determining whether speech addresses a
matter of public concern requires courts to “delve deeper into the
precise content, form, and context of speech that admittedly may be
of some interest to the public.”
Id. at 844 (quoting Cliff v. Bd.
of Sch. Comm’rs of Indianapolis, 42 F.3d 403, 410 (7th Cir. 1994)).
“[I]t is necessary to ‘look at the point of the speech in question:
was it the employee’s point to bring wrongdoing to light? Or to
raise other issues of public concern, because they are of public
concern? Or was the point to further some purely private interest?”
Id. (quoting Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir.
1987)).
My analysis begins and ends with the first prong of the
Connick-Pickering
test.
Plaintiff’s
complaint,
insufficient to survive a motion to dismiss.
alone,
is
The bare legal
conclusion that the book is on a matter of public concern is not
enough to state a First Amendment claim.
5
Further, the few facts
pleaded in the complaint (that the book is a “self-help” book on
relationships
between
men
and
women)
are
not
sufficient
to
plausibly establish that the book is on a matter of public concern.
That plaintiff self-published the book, suggests that the book,
though public, may not be a matter “in which the public might be
interested.”
(1996).
Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 197
Moreover,
plaintiff
misunderstands
his
burden
in
establishing that “It’s Her Fault” is on a matter of public
concern. Whether speech is on a matter of public concern is a
matter of law and courts can and do decide this issue on motions to
dismiss.
See Khuans v. Sch. Dist. 110, 123 F.3d 1010, 1016-17 (7th
Cir. 1997).
It is not enough for plaintiff to merely assert that
because the book addresses relationships between adult men and
women, it is a matter of public concern.
vague to state a claim.
Such a statement is too
“[S]peaking up on a topic that may be
deemed one of public importance does not automatically mean the
employee’s statements address a matter of public concern as that
term is employed in Connick.”
omitted).
published
Kokkinis, 185 F.3d at 844 (citation
Similarly, the mere fact that plaintiff has selfhis
book,
making
it
available
to
the
public
and
purportedly part of some public discourse, is not enough to satisfy
the first prong of the Connick-Pickering test.
See id. (finding
that the fact the plaintiff’s statements “were made in the course
of a news program covering sex discrimination” was not enough,
6
standing alone, to establish that the speech was on a matter of
public concern).
However, that plaintiff’s complaint does not, on its face,
satisfy the plausibility test does not end the analysis because, in
response to defendants’ motion, plaintiff has attached the text of
the book along with the charges and bill of particulars adopted by
the Board.
These reveal that though plaintiff describes “It’s Her
Fault” as a “self-help” book on relationships, it is actually
little
more
preferences
than
and
a
lurid
exploits.
account
The
of
first
plaintiff’s
two
own
chapters
sexual
at
least
superficially discuss the balance of power between men and women in
relationships, but by the third chapter plaintiff’s narration is
focused on his own attraction to women, from ogling a “sexy young
lady” at the mall to working after-hours at a strip club, where he
has learned that a stripper’s “mindset is in the right place in
order to meet the true potential of the point of this book.”
“It’s Her Fault,” Dkt. No. 19-1, at 8).
(See
Plaintiff then goes on to
explain “PIMP 101,” to urge women to “enter the wonderful world of
submissiveness,” to describe in detail the vaginas of women of
different races, and to advise men to cheat and engage in sexual
exploits. (See id., passim). Plaintiff has attempted to lend some
value and validity to his book based on, in relevant part, his
credentials as a high school girls basketball coach and a high
school guidance counselor (for defendants) who is “responsible for
7
roughly 425 high school students a year” (see “It’s Her Fault,”
Dkt.
No.
19-1,
at
4),
but
his
credentials
and
superficial
discussions of relationships between men and women do not convert
his book into speech on a matter of public concern.
Simply because plaintiff’s book touches on a matter of public
interest (relationships between men and women) does not mean that
it addresses a matter of public concern such that it satisfies the
Connick-Pickering test.
See Kokkinis, 185 F.3d at 844.
The
Supreme Court has stated that “public concern is something that is
a subject of legitimate news interest; that is, a subject of
general interest and of value and concern to the public at the time
of publication.”
City of San Diego, California v. Roe, 543 U.S.
77, 83-84, 125 S.Ct. 521 (2004).
The Court further suggested that
in evaluating the employee’s purpose, it is important to consider
whether the employee “discussed subjects that could reasonably be
expected to be of interest to persons seeking to develop informed
opinions about the manner in which” the government agency for which
he works functions or operates.
Id. at 84 (quoting Connick, 461
U.S. at 163, 103 S.Ct. 1684 (Brennan, J., dissenting)).
The Court
had no difficulty in City of San Diego determining that the
plaintiff police officer’s speech (a sexually explicit video of him
stripping off a police uniform and masturbating, which he sold on
eBay) did not qualify as a matter of public concern.
Id.
Though
plaintiff here attempts to dress his book in more noble clothing,
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I, too, conclude that “It’s Her Fault” does not meet the threshold
test of the Connick-Pickering analysis.
Moreover, like the plaintiff in City of San Diego, plaintiff
here has exploited his position as a high school guidance counselor
and there is no question that the speech is “detrimental to the
mission
and
functions
of
the
employer,”
including
regarding discrimination based on gender or sex.
policies
See id. at 84.
As a result, plaintiff cannot establish that his book, “It’s Her
Fault,” is a matter of public concern, and his First Amendment
claim must be dismissed.
Defendants also argue that plaintiff has failed to state a
Fourteenth Amendment liberty interest claim.
In his complaint,
plaintiff purports to bring a due process claim, alleging that
defendants have deprived him of his liberty interest in pursuing
his
profession
and
maintaining
his
professional
reputation.
(Compl., at ¶ 36). Defendants contend that plaintiff has failed to
state such a claim in part because he has not alleged that the
defendants
plaintiff.
argument,
publicly
disclosed
stigmatizing
information
about
Not only has plaintiff failed to respond to this
but
defendants’
argument
has
merit.
“To
prove
a
deprivation of [a] liberty interest, a plaintiff must establish
that the defendant publicly disclosed stigmatizing information that
caused the plaintiff to suffer a tangible loss of other employment
opportunities.”
RJB Properties, Inc. v. Bd. of Educ. of City of
9
Chicago, 468 F.3d 1005, 1011 (7th Cir. 2006).
By failing to plead
any publication on the part of defendants, plaintiff has not stated
a claim for deprivation of his liberty interest without due
process.
IV.
For the foregoing reasons, defendants’ motion to dismiss is
granted and plaintiff’s complaint is dismissed with prejudice.
ENTER ORDER:
____________________________
Elaine E. Bucklo
United States District Judge
Dated: February 19, 2013
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