Perez-Garcia v. Dominick et al

Filing 169

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/5/2015:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LAURA PEREZ-GARCIA,
Plaintiff,
Case No. 13 C 1357
v.
Judge Harry D. Leinenweber
CLYDE PARK DISTRICT, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Before

the

Court

are

two

separate

Motions

for

Summary

Judgment by Defendant Clyde Park District (the “Park District”)
[ECF No. 123], and Defendants Brian Dominick, Jose Rodriguez,
Alex Rueda, Frank Szczech (incorrectly spelled as “Szchech”),
Mark Nowak, Tony Martinucci, and Mark Kraft (the “Individual
Defendants”) [ECF No. 126].
combined

Motion

to

Strike

Defendants have also submitted a
the

affidavit

of

Plaintiff

Laura

Perez-Garcia (“Perez-Garcia”) [ECF No. 160].
For the reasons stated herein, the Individual Defendants’
Motion for Summary Judgment is granted in part and denied in
part, the Park District’s Motion for Summary Judgment is denied,
and the Motion to Strike is denied as moot.
I.

BACKGROUND

Before relating the factual background of this case, the
Court must first address Defendants’ Motion to Strike Perez-

Garcia’s

affidavit.

statement,

Without

Defendants

urge

citing

the

a

Court

single

to

contradictory

strike

the

entire

affidavit because it is “repeatedly contrary to [Perez-Garcia’s]
established deposition testimony on numerous matters.”

(Defs.’

Mot. to Strike, ECF No. 160, at 3 ¶ 10.)
The

Seventh

Circuit

has

“long

followed

the

rule

that

parties cannot thwart the purposes of Rule 56 by creating ‘sham’
issues

of

fact

with

affidavits

that

contradict

their

prior

depositions.”

Bank of Ill. v. Allied Signal Safety Restraint

Sys.,

1162,

75

F.3d

1168

(7th

Cir.

generally disfavor motions to strike.

1996).

However,

courts

Loeffel Steel Prods.,

Inc. v. Delta Brands, Inc., 379 F.Supp.2d 968, 971 n.1 (N.D.
Ill.

2005).

enforcement

Moreover,
provisions,”

materials “superfluous.”

Local

Rule

making

56.1

motions

“includes
to

strike

its

own

factual

Id.

Defendants have already taken advantage of the enforcement
provisions in Rule 56.1 by responding to each one of PerezGarcia’s

additional

factual

assertions.

The

Court

has

considered these objections and is capable of determining which
facts

are

inadmissible

or

otherwise

improper.

Defendants’

Motion to Strike is therefore denied as moot.
The following facts are undisputed unless otherwise noted.
The Park District manages the park and recreation facilities in
the Town of Cicero, on the outskirts of Chicago.
- 2 -

The Park

District’s
hiring

Board

and

of

firing

Commissioners
matters

within

(the
the

“Board”)
Park

approves

District

all

and

is

comprised of five individuals — Jose Rodriguez (“Rodriguez”),
who serves as President, Brian Dominick (“Dominick”), Mark Nowak
(“Nowak”), Alex Rueda (“Rueda”), and Frank Szczech (“Szczech”)
(the “Board Members”).
Executive

Director

(“Kraft”),

who

Tony Martinucci (“Martinucci”) serves as

of

reports

the
to

Park

District,

Martinucci,

and

serves

Mark

as

Kraft

Recreation

Director.
Perez-Garcia began working as an administrative assistant
for

the

included

Park

District

managing

in

receipts

2000.
for

Her
Park

job

responsibilities

District

credit

card

charges, paying credit card bills, and processing payroll and
check

requests,

among

other

things.

(Pl.’s

Resp.

Martinucci’s First Set of Interrogs., Defs.’ Ex. N, ¶ 3.)

to
Park

District employees typically turned credit card receipts into
the

business

office,

where

Perez-Garcia

worked,

and

if

they

failed to do so, Perez-Garcia would remind them by phone or email to submit them.

(Punzo-Arias Dep., Defs.’ Ex. O, at 37:19–

39:16.)
Perez-Garcia states in her affidavit that she consistently
had to ask Martinucci and Kraft for receipts for purchases made
on

Park

District

credit

cards

—

a

fact

that

they

dispute.

Perez-Garcia testified at deposition that in 2005 and 2006, she
- 3 -

also

began

to

observe

charges

on

Martinucci’s

Park

District

credit card that she believed were not work related.

On three

occasions, Perez-Garcia drafted and sent internal memoranda to
department heads, including Kraft and Martinucci, reminding them
to submit their receipts.

(Perez-Garcia Dep. Vol. I, Defs.’

Ex. P, at 33:16–34:8.)
Perez-Garcia states in her affidavit that in 2007 and 2008,
and again in 2011 and 2012, she took her concerns about the
credit card charges to Rodriguez.
spoke

to

Rodriguez

about

She also states that she

Martinucci’s

other

improper

activities and showed him copies of related invoices.
to

Perez-Garcia,

Martinucci

submitted

invoices

for

billing

According
expenses

related to his daughter’s volleyball team and a basketball team
that he coached, and he requested that the Park District pay
umpires and referees for games that had never taken place.

At

deposition, Rodriguez denied having any such conversations with
Perez-Garcia.

(Rodriguez Dep., Defs.’ Ex. E, at 36:22–37:11.)

However, Rueda testified that Rodriguez told him that PerezGarcia had spoken to him about Kraft and Martinucci’s improper
credit card use.

(Rueda Dep., Defs.’ Ex. T, at 65:9–19.)

In

April 2012, Perez-Garcia, Kraft, and Martinucci, along with Town
President Larry Dominick and several other employees, held a
meeting.

At

the

meeting,

Perez-Garcia

- 4 -

stated

that

she

had

shared her concerns about Kraft and Martinucci’s credit card use
with Rodriguez.
In her affidavit, Perez-Garcia states that Martinucci cut
off communications with her after the April meeting.

However,

this statement conflicts with previous deposition testimony in
which Perez-Garcia stated that she had received an email from
Martinucci that May.

(See, Perez-Garcia Dep. Vol. II, Defs.’

Ex. Q, at 268:22–269:21.)

Perez-Garcia also claims that Kraft

and Martinucci began stripping away her job responsibilities.
Perez-Garcia apparently lost certain duties related to payroll
and staffing concession stands at soccer games.

According to

Martinucci, Perez-Garcia’s concession stand duty was taken away
because one staff member Perez-Garcia assigned had a “health
issue”

that

should

have

precluded

him

from

working.

When

Martinucci found out, he decided that “everything from here on
out”

in

terms

of

recreation office.

concessions

staffing

would

go

through

the

(Martinucci Dep., Defs.’ Ex. R, at 58:21–

62:1.)
Three

relevant

events

took

place

in

May

2012.

First,

Perez-Garcia began providing Park District documents to David
Duran (“Duran”), a former Board member and family friend, “to
show him some of the corruption” in the hope that “somebody
would

do

something

about

it.”

Defs.’ Ex. Q, at 299:21–300:22.)
- 5 -

(Perez-Garcia

Dep.

Vol.

II,

The documents included copies

of invoices and checks.

Sometime in the middle of 2012, Duran

showed the documents to Rodriguez and Rueda, who suspected he
had received them from Perez-Garcia.

(Rueda Dep., Defs.’ Ex. T,

at 59:11–61:2; Rodriguez Dep., Defs.’ Ex. E, at 42:20–51:1.)
Rueda testified that the documents did not appear to show any
impropriety.

(Rueda Dep., Defs.’ Ex. T, at 59:2–61:2.)

Second,

Perez-Garcia

took

her

concerns

to

the

FBI.

Although Perez-Garcia claims that Duran directed her to do so,
Duran denies this, and Kraft, Martinucci, and Larry Dominick all
testified that they did not know Perez-Garcia went to the FBI
until after she filed this lawsuit.
Finally, that same month, two break-ins occurred at the
Park District, prompting the Park District to change locks and
install a security camera in the business office.
On September 14, 2012, the security camera was damaged.
Security footage revealed a hand reaching up and tampering with
the

camera’s

questioned

wires.

After

Perez-Garcia

and

Alfredo Cintron (“Cintron”).
Perez-Garcia,

and

reviewing
another

the

footage,

Park

District

the

Board

employee,

Cintron told the Board that he,

Perez-Garcia’s

daughter

office when the camera was disabled.

Tanya

were

in

the

Though Perez-Garcia denied

knowledge of the incident, and doubt remains as to whose hand
can be seen in the video, Perez-Garcia was suspended with pay on
October 22, 2012, the day after her meeting with the Board.
- 6 -

Several Board Members testified that they had never heard
any

negative

feedback

about

Perez-Garcia

prior

to

September

2012, and Kraft and Martinucci stated that they had no reason to
criticize

her

suspension,

performance

three

before

instances

of

then.

However,

purported

during

misconduct

her

surfaced:

(1) unauthorized purchases on the Park District’s Sam’s Club
card,

(2)

false

representations

to

the

Illinois

Municipal

Retirement Fund (“IMRF”), and (3) a $6,000 overpayment to Tag’s
Tuckpointing

(“Tag’s”),

a

business

owned

by

Perez-Garcia’s

husband.
Sometime after Perez-Garcia’s suspension, Rodriguez learned
that Perez-Garcia had used the Park District’s Sam’s Club card
to make personal purchases.
items

were

purchased

information,

and

Perez-Garcia

purchase personal items.

Although the parties dispute which
how

Rodriguez

admits

that

came

she

to

used

know

the

this

card

to

However, she contends that employees

were free to do so pursuant to Park District policy, as long as
they

provided

reimbursement.

Rodriguez,

on

the

other

hand,

testified that personal purchases were not permitted, and PerezGarcia was the only individual who used the Sam’s Club card in
this way.
Also during the suspension, Paul Nosek (“Nosek”) — a Park
District accountant who had taken over Perez-Garcia’s role as
IMRF

agent

—

discovered

that

in

- 7 -

2006,

Perez-Garcia

falsely

reported

to

the

IMRF

that

she

had

resigned.

Perez-Garcia

received a refund of almost $4,000 before reenrolling in the
fund.

(Nosek Dep., Defs.’ Ex. G, at 35:16–42:7.)

Finally,

Rueda and Nosek testified that they discovered what appeared to
be an overpayment of $6,000 to Tag’s in relation to work done at
Cicero Stadium.
According to the Board, these three issues, in combination
with

the

camera

Perez-Garcia.

incident,
The

day

led

after

to

its

decision

gathering

for

a

to

terminate

meeting,

on

November 26, 2015, the Board sent Perez-Garcia her termination
letter.

Exactly who knew what at the time of the meeting is

disputed, but each Board Member was aware of at least one of the
issues mentioned above, as well as the camera incident, at the
time of the decision.
II.

LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
facts

are

those

that

affect

FED. R. CIV. P. 56(a).
the

outcome

of

the

Material
lawsuit.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A

genuine

a

dispute

exists

“if

the

evidence

is

such

that

reasonable jury could return a verdict for the nonmoving party.”
Id.

The moving party may meet its burden by showing “there is

an absence of evidence to support the nonmoving party’s case.”
- 8 -

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the

moving party satisfies its initial burden, the non-moving party
must demonstrate with evidence “that a triable issue of fact
remains on issues for which [it] bears the burden of proof.”
Knight v. Wiseman, 590 F.3d 458, 463–64 (7th Cir. 2009).
The

judge’s

role

at

summary

judgment

is

not

credibility determinations or weigh the evidence.
Haupert, 481 F.3d 543, 550 (7th Cir. 2007).
whether

a

genuine

issue

of

material

fact

to

make

Washington v.
In determining

exists,

the

Court

construes all evidence in the light most favorable to the nonmoving party.

Bellaver v. Quanex Corp., 200 F.3d 485, 491-92

(7th Cir. 2000).
III.

ANALYSIS

A. Count I – First Amendment Retaliation
In Count I, Perez-Garcia alleges that the Park District,
Board

Members,

Kraft,

and

Martinucci

retaliated

against

her

based on her speech — specifically, her efforts to expose the
improper

credit

District.

card

and

billing

activity

within

the

Park

Perez-Garcia claims that, as a result of her speech,

Kraft and Martinucci took certain job duties away from her and
the Park District, through the Board, suspended and ultimately
terminated her.
To

establish

retaliation

a

pursuant

prima
to

42

facie
U.S.C.
- 9 -

case
§

of

1983,

First
a

Amendment

plaintiff

must

establish

that:

protected,

(2)

“(1)
[she]

[her]

suffered

speech
a

was

constitutionally

deprivation

likely

to

deter

speech, and (3) [her] speech was at least a motivating factor in
the employer’s action.”

Kidwell v. Eisenhauer, 679 F.3d 957,

964 (7th Cir. 2012) (citation and internal quotation omitted).
Here, Defendants challenge only the first and third factors.
1.

Individual Liability Under § 1983

As a threshold matter, the Individual Defendants argue that
they are improper parties to Count I because Perez-Garcia has
not

alleged

deprivation

that
of

her

they
First

were

personally

Amendment

involved

rights.

In

in

her

the

Second

Amended Complaint, Perez-Garcia does not indicate whether she is
suing the Individual Defendants in an individual or official
capacity.
Where, as here, a plaintiff sues both a local government
unit

and

the

individuals

comprising

it

in

their

official

capacity under § 1983, the official capacity claim is equivalent
to the claim against the entity, and should be dismissed.

See,

e.g., Kiser v. Naperville Cmty. Unit, 227 F.Supp.2d 954, 960–61
(N.D. Ill. 2002).

However, there is no “rigid rule that a

§ 1983 plaintiff who fails to designate whether a defendant is
being

sued

in

her

official

or

individual

capacity

shall

be

presumed to be bringing the action against the defendant in her
official capacity.”

Miller v. Smith, 220 F.3d 491, 494 (7th
- 10 -

Cir. 2000) (citing Hill v. Shelander, 924 F.2d 1370, 1373 (7th
Cir.

1991)).

punitive

Here,

damages

in

Perez-Garcia’s
her

prayer

inclusion

for

relief

of
—

a

a

claim

remedy

for
only

available in an individual capacity suit — provides at least
some

indication

that

she

intended

to

sue

the

Board

Kraft, and Martinucci in their individual capacities.

Members,

See, id.

To state an individual capacity claim under § 1983, PerezGarcia must show that the Individual Defendants, acting under
color of state law, were personally involved in the deprivation
of her First Amendment rights.
F.3d 612, 651 (7th Cir. 2001).

Chavez v. Ill. State Police, 251
Perez-Garcia has alleged that

the Board Members, acting under color of state law, voted to
suspend and terminate her based on her speech, and that Kraft
and Martinucci, acting under color of state law, curtailed her
work duties based on her speech.

Although Perez-Garcia does not

allege that Kraft and Martinucci caused her termination, their
alleged actions could plausibly deter free speech.
v. Summers, 226 F.3d 815, 820 (7th Cir. 2000).

See, Power

The Court finds

Perez-Garcia’s allegations of personal involvement sufficient to
support a claim for individual liability under § 1983.
2.

Protected Speech

To establish protected speech under the First Amendment, a
public employee must show that (1) she made the speech as a
private citizen, (2) the speech addressed a matter of public
- 11 -

concern, and (3) her interest in expressing the speech was “not
outweighed by the state’s interests . . . in promoting effective
and efficient public service.”

Swetlik v. Crawford, 738 F.3d

818, 825–26 (7th Cir. 2013) (citation and internal quotations
omitted).
here:

Four instances of Perez-Garcia’s speech are relevant
the

internal

memoranda,

and

the

communications

to

Rodriguez, Duran, and the FBI.
While a private citizen’s speech is protected under the
First Amendment, “speech that owes its existence to a public
employee’s professional responsibilities,” is not.
Ceballos, 547 U.S. 410, 421 (2006).

Garcetti v.

To determine whether a

plaintiff spoke as a private citizen, the question is whether
she spoke pursuant to her official duties — not whether her
speech

related

to

those

duties.

Diadenko

v.

Folino,

890

F.Supp.2d 975, 988 (N.D. Ill. 2012), aff’d, 741 F.3d 751 (7th
Cir. 2013).

Employees who voice their concerns publicly, or

outside the usual chain of command, tend to speak as private
citizens rather than employees.

Id.

The Court first turns to the internal memoranda, which were
reminders to Park District department heads to provide receipts
for purchases made on Park District credit cards.

The Park

District argues that Perez-Garcia drafted the memoranda “as an
ordinary matter of internal operations” in the course of her job
duties.

(Park Dist. Mem., ECF No. 124, at 4.)
- 12 -

It is undisputed

that

Perez-Garcia’s

job

responsibilities

as

an

administrative

assistant included managing receipts for credit card charges and
reminding employees to turn them in.
that

in

issuing

the

internal

The Court therefore finds

memoranda,

Perez-Garcia

was

speaking pursuant to her job duties, not as a private citizen.
The

Court

next

examines

Perez-Garcia’s

Rodriguez, Duran, and the FBI.

communications

to

Even if it was customary for

Perez-Garcia to remind employees to turn in receipts, taking her
concerns

to

the

Board

President,

federal law enforcement was not.
taking

her

concerns

up

and

a

former

Board

member,

and

The Court concludes that in

outside

of

the

usual

chain

of

command, Perez-Garcia was speaking as a private citizen.
In determining whether an employee’s speech implicates a
matter of public concern, the Court must look to the content,
form, and context of the speech.

Craig v. Rich Twp. High Sch.

Dist. 227, 736 F.3d 1110, 1115–16 (7th Cir. 2013) (citation and
internal quotations omitted).

In terms of content, it is well

established that government waste is a matter of public concern.
Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 672 (7th
Cir.

2009).

However,

purpose

matters,

and

speech

that

vindicates only a personal interest does not implicate a matter
of public concern.
Several

times

Id.
during

deposition,

Perez-Garcia

testified

that her purpose in copying internal documents was to protect
- 13 -

herself.

When asked why she prepared documents to share with

the FBI, she stated that it was because she had been blamed for
certain errors at the Park District and added that she had no
other

purpose

but

to

protect

herself.

Vol. I, Defs.’ Ex. P, at 87:19–88:20.)

(Perez-Garcia

Dep.

However, when asked why

she communicated with Duran, she indicated that her purpose was
to “show him some of the corruption” in the hope that he might
be able to do something about it.
Defs.’

Ex.

conclude

Q,

that

at

(Perez-Garcia Dep. Vol. II,

299:21–301:6.)

Perez-Garcia’s

This

leads

communications

the
to

Court
Duran

to
and

Rodriguez were not driven entirely by self-interest and touched
on a matter of public concern:

the misuse of Park District

funds.
Because

Defendants

do

not

argue

that

their

efficiency

interests outweighed Perez-Garcia’s speech interests, the Court
finds

Perez-Garcia’s

speech

to

Duran

and

Rodriguez

to

be

protected under the First Amendment.
3.

Causation

As an initial matter, to establish causation, Perez-Garcia
must provide some evidence that Defendants were aware of her
communications to Rodriguez and Duran.
176 F.3d 986, 999–1000 (7th Cir. 1999).

See, Stagman v. Ryan,
The Court notes that

even if Perez-Garcia’s communications to the FBI were protected,
there is no evidence in the record that any Defendant knew of
- 14 -

them.

Thus, Perez-Garcia’s First Amendment claim rests on her

speech

to

Rodriguez

and

Duran.

Here,

there

is

sufficient

evidence showing that Kraft, Martinucci, and Rueda knew that
Perez-Garcia
Rodriguez

and

had

spoken

Rueda

to

Rodriguez,

suspected

that

and

that

Perez-Garcia

at

had

least

supplied

documents to Duran.
At summary judgment, the burden of proof as to causation is
split between the parties.

Kidwell, 679 F.3d at 965.

If a

plaintiff can show that her speech was at least a “motivating
factor” in her employer’s action, the burden then shifts to the
employer to show that the adverse action would have been taken
regardless of the speech.
(7th

Cir.

burden

2011).

shifts

If

back

to

Zellner v. Herrick, 639 F.3d 371, 379

the
the

employer

carries

plaintiff

to

this

burden,

establish

defendant’s proffered reasons were pretextual.

Id.

that

the
the

At summary

judgment, this requires a plaintiff “to produce evidence upon
which a rational finder of fact could infer that the defendant’s
proffered reason is a lie.”
must

demonstrate

that,

but

Id.
for

“In the end, the plaintiff
[her]

protected

employer would not have taken the adverse action.”

speech,

the

Kidwell, 679

F.3d at 965.
A plaintiff may show causation through direct evidence or a
“convincing mosaic” of circumstantial evidence.
Gaming

Bd.,

731

F.3d

635,
- 15 -

643-44

(7th

Hobgood v. Ill.
Cir.

2013).

Circumstantial evidence may include suspicious timing, evidence
that the employer offered a pretextual reason for the employment
action,

and

ambiguous

statements

retaliatory intent may be drawn.
a.
Perez-Garcia

from

which

an

inference

of

Id.

Kraft and Martinucci

contends

that,

as

a

result

of

her

speech,

Martinucci “froze” communications with her, restricted her from
certain

offices

within

the

Park

District,

and

put

her

under

surveillance. Martinucci and Kraft also took away certain job
responsibilities and contributed to Perez-Garcia’s suspension.
Before addressing the issue of causation, the Court finds
that

there

is

insufficient
Martinucci

evidence
“froze”

from

which

a

communications

jury
with

could

conclude

that

Perez-

Garcia.

Although Perez-Garcia states that she was “shunned”

immediately after she shared her concerns about improper credit
card use at the April meeting, she previously testified that
Martinucci emailed her in May of 2012 and told her she wasn’t
doing anything wrong.
at 268:22–269:21.)

(Perez-Garcia Dep. Vol. II, Defs.’ Ex. Q,

This is insufficient evidence of an adverse

employment action, let alone one motivated by speech.
The other actions attributed to Kraft and Martinucci are
problematic for different reasons.
she

“was

put”

under

surveillance

Although Perez-Garcia states
and

“was

restricted”

from

certain offices in the Park District, she does not attribute
- 16 -

these actions to Martinucci.
linked

them

to

her

Even if she had, she has not

speech.

It

is

undisputed

that

the

surveillance camera was installed in response to the break-in
and that Martinucci restricted access to his office for the same
reason.
77:8.)

(Martinucci Dep., Defs.’ Ex. R, at 64:14–65:7; 76:7–
Perez-Garcia

has

provided

no

evidence

of

pretext

to

counter Defendants’ explanation.
That

leaves

Perez-Garcia’s

contention

that

Kraft

and

Martinucci began eliminating many of her job responsibilities.
In her affidavit, Perez-Garcia states that Kraft and Martinucci
took away her duty of coordinating soccer concessions shortly
after the April meeting.

Even if the timeline of these events

made it possible to infer causation, Kraft and Martinucci have
offered a reasonable explanation for this action — one of the
concessions workers Perez-Garcia had assigned had a health issue
that

should

have

precluded

him

from

working.

Again,

Perez-

Garcia has provided no evidence that this explanation is a lie.
Perez-Garcia

also

states

away her payroll duties.

that

Kraft

and

Martinucci

took

Although it is unclear what these

duties entailed, or when this incident occurred, it appears to
have

taken

place

in

August

(see,

Perez-Garcia

Dep.

Vol.

I,

Defs.’ Ex. P, at 82:16–84:14), approximately four months after
the April meeting.
support

an

Apart from timing, which is too remote to

inference

of

causation,
- 17 -

Perez-Garcia

has

not

presented any evidence from which a jury might conclude that
Kraft and Martinucci took away her payroll duties based on her
speech.
Finally,
evidence,

from

Martinucci
Although

Perez-Garcia
which

were
Kraft

October 22,

a

has
jury

responsible
signed

2012.

provided

the

could
for

Perez-Garcia

infer

the

suspension
has

little,

if

any,

that

Kraft

and

suspension
letter,
provided

it
no

decision.
is

dated

reason

to

believe that this decision — made more than six months after
Kraft and Martinucci learned that Perez-Garcia had spoken to
Rodriguez — was speech related.

Defendants have also provided

evidence that the decision was based on the camera incident, and
specifically,

Cintron’s

testimony

placing

Perez-Garcia

in

the

business office at the time it occurred.
The Court therefore finds that Kraft and Martinucci are
entitled to summary judgment on Count I.
b.

The Board

Perez-Garcia maintains that the Board suspended her, and
ultimately fired her, based on her speech.

To establish that

her speech was a motivating factor in the Board’s decision to
take these actions, Perez-Garcia has assembled various pieces of
circumstantial evidence, including comments from Rodriguez and
Rueda,

and

inconsistencies

in

the

- 18 -

Board’s

reasons

for

the

termination. These “‘bits and pieces’ . . . must be put into
context and considered as a whole.”

Hobgood, 731 F.3d at 644.

The Court first turns to what Perez-Garcia claims is her
most

damaging

evidence.

When

asked

whether

Perez-Garcia’s

distribution of documents to Duran was a reason to terminate
her, Rodriguez indicated that although it did not contribute to
his own decision, it was nevertheless a reason to terminate her.
(Rodriguez Dep., Defs.’ Ex. E, at 115:22–116:6 (“I wouldn’t have
used

it,

stated

but

that

yes.”)).

When

Perez-Garcia’s

asked

the

same

distribution

of

question,

the

Duran was “absolutely” a reason to terminate her.
Ex. T, at 137:6–10.)

Rueda

documents

to

(Rueda Dep.,

Rueda only shared this conclusion with

Rodriguez, and may have been more troubled by the distribution
of internal documents rather than their contents.
viewed

in

the

light

most

favorable

to

Nevertheless,

Perez-Garcia,

these

comments lend some support to an inference of retaliation.
Perez-Garcia

next

contends

that

Defendants’

reasons for her termination are pretextual.

proffered

Although causation

and pretext are often addressed separately under the burdenshifting framework for retaliation claims, evidence of pretext
may

provide

circumstantial

evidence

of

a

retaliatory

motive.

See, Hobgood, 731 F.3d at 644; Koehn v. Tobias, 605 F. App’x
547, 552 (7th Cir. 2015).

- 19 -

According
suspended

to

based

Defendants,

on

Perez-Garcia

the

incident,

camera

was

which

initially

triggered

a

follow-up investigation revealing other instances of misconduct,
including

unauthorized

submissions,

and

Perez-Garcia

denies

Sam’s

Club

unauthorized

purchases,

payments

involvement

in

to

the

improper

Tag’s.

camera

IMRF

Although

incident,

and

questions remain as to whose hand can be seen tampering with the
camera’s wiring, it is undisputed that the camera was damaged
and

that

the

Board

heard

testimony

Garcia was in the room at the time.

from

Cintron

that

Perez-

The Board at least appears

to have a basis in fact for Perez-Garcia’s suspension.
However, a haze of disputed facts surrounds the Board’s
reasons for Perez-Garcia’s termination.

At one point, Rueda’s

testimony suggests that Defendants were looking for a reason to
terminate her once she was suspended:
I had suspicion that maybe there were other things
that we didn’t know about.
What are the things, I
didn’t know.
But at that point, I just felt it was
appropriate to bring up the fact that, you know, she
is not here now, so it’s probably a good idea to take
a look at any payables, any receivables, take a look
at the functions she would perform every day.
(Rueda Dep., Defs.’ Ex. T, at 124:2–17.)
Moreover,
termination

are

the

Board’s

explanations

inconsistent.

Brian

for

Dominick

Perez-Garcia’s
testified

that

when the Board decided to terminate Perez-Garcia, “[w]e talked
about everything that [sic] between the Sam’s Club bill, the
- 20 -

IMRF,

the

overpayment,

the

camera.”

Defs.’ Ex. D, at 93:15–19.)
IMRF

issue

Rueda similarly indicated that the

contributed to the decision to terminate Perez-Garcia.

(Rueda

Ex.

T,

Club

Dep.,

camera,

Defs.’

Sam’s

Dominick

the

Dep.,

and

(Brian

at

purchases,

along

135:21–136:13.)

with

However,

Rodriguez

testified that he had no knowledge of the IMRF issue at the time
of the termination decision.
91:17–92:22).
had

no

And Rodriguez and Nowak both indicated that they

knowledge

(Rodriguez

(Rodriguez Dep., Defs.’ Ex. E, at

Dep.,

of

Defs.’

the

alleged

Ex.

E,

at

overpayments
106:18–107:7;

to

Tag’s.

Nowak

Dep.,

Defs.’ Ex. V, at 55:23–55:21).
The one issue that Rodriguez did know of and rely on —
Perez-Garcia’s purchases at Sam’s Club — is foggy.

Although

Defendants contend that an internal audit revealed improper use
of the Park District’s Sam’s Club account, Martinucci and Nosek
denied

performing

such

an

investigation.

Perez-Garcia

also

testified that personal use of the account is allowed provided
that there is reimbursement, and that she only made purchases
for

her

personal

superintendent’s
recall

the

alternatively

use

when

permission.

purchases
testified

she

had

Finally,

the

Park

Perez-Garcia

that

Defendants

asked

that

the

in

authorized work-related purchases.

- 21 -

items

District
did

not

about,

or

question

were

There are too many disputed

facts

to

conclude

that

the

Sam’s

Club

purchases

were

the

cornerstone of the Board’s decision to terminate Perez-Garcia.
The inconsistent reasons for Perez-Garcia’s termination and
comments about the distribution of documents to Duran — coupled
with Perez-Garcia’s otherwise steady work history at the Park
District — provide sufficient circumstantial evidence from which
a jury could conclude that speech was a motivating factor in the
Board’s decision.
Ordinarily, “evidence that would permit a jury reasonably
to find that protected speech motivated adverse action would not
. . . end the inquiry at summary judgment.”
at 552.

Koehn, 605 F. App’x

The defendant would come forward with non-pretextual

reasons for its decision, which the plaintiff would them attempt
to rebut.

Id.

Here, however, Perez-Garcia need not produce any

further evidence of pretext.
as

to

Defendants’

real

She has raised a factual dispute

motivation

for

her

termination.

The

Board Members’ and Park District’s Motions for Summary Judgment
on Count I are therefore denied.
B.

Count II – Violation of the Illinois False Claims Act

In Count II, Perez-Garcia argues that the Park District
violated

the

Illinois

False

Claims

Act

(“IFCA”)

when

it

harassed, suspended, and terminated her in retaliation for her
efforts to stop IFCA violations.

The IFCA creates a private

right of action for any employee who is “discharged, demoted,
- 22 -

suspended,

threatened,

harassed,

or

in

any

other

manner

discriminated against . . . because of lawful acts done . . . in
furtherance of an action under this Section or other efforts to
stop one or more violations of this Act.”

740 ILCS 175/4(g)(1).

Because the IFCA is nearly identical to the federal False Claims
Act (“FCA”), it is evaluated under the same standards.

See,

U.S. ex rel. Batty v. Amerigroup Ill., Inc., 528 F.Supp.2d 861,
871 (N.D. Ill. 2007).

To prevail on an IFCA claim, Perez-Garcia

must show that (1) her actions were taken “in furtherance of” an
IFCA enforcement action and are protected under the statute, (2)
the Park District knew she was engaged in protected conduct, and
(3)

the

Park

District’s

actions

part, by the protected conduct.

were

motivated,

at

least

in

See, Fanslow v. Chi. Mfg. Ctr.,

Inc., 384 F.3d 469, 479 (7th Cir. 2004).
To

establish

“protected

activity,”

have actual knowledge of the IFCA.

an

employee

Id. at 480.

need

not

Instead, the

relevant question is whether “(1) the employee in good faith
believes, and (2) a reasonable employee in the same or similar
circumstances
fraud

might

against

the

believe,

that

government.”

the
Id.

employer

is

committing

Although

“protected

activity” encompasses a broad range of actions, “simply making
internal complaints or pointing out problems to supervisors is
not sufficient.”

Batty, 528 F.Supp.2d at 877.

- 23 -

The

Court

has

already

found

that

Perez-Garcia

sent

the

internal memoranda pursuant to her job duties, and Perez-Garcia
has

submitted

no

evidence

that

because she suspected fraud.

she

sent

these

reminders

out

And, as stated above, Perez-Garcia

has not shown that any Defendant knew she contacted the FBI.
Thus, the only potential bases for Perez-Garcia’s IFCA claim are
her communications to Rodriguez and Duran.
The Park District argues that even though an employee in
Perez-Garcia’s

position

might

have

believed

that

Kraft

and

Martinucci were misusing government funds, Perez-Garcia cannot
withstand summary judgment because she has produced no evidence
showing that she actually believed they were committing fraud on
the

government.

However,

the

Park

focuses on the internal memoranda.
Board

President

Rodriguez,

District’s

argument

only

In reporting her concerns to

and

collecting

and

providing

documentation to Duran, it is reasonable to conclude that PerezGarcia had a good-faith belief that fraud was occurring within
the Park District.
The Court turns next to the issue of notice.

In Brandon,

the Seventh Circuit indicated that a plaintiff must establish
that her actions put the defendant on notice of the “distinct
possibility” of an FCA action.

Brandon v. Anesthesia & Pain

Mgmt. Assocs., Ltd., 277 F.3d 936, 944 (7th Cir. 2002).
focusing

on

the

internal

memoranda,
- 24 -

Defendants

contend

Again
that

Perez-Garcia cannot show notice because she was acting pursuant
to her job duties and driven by self-interest.
When

fraud

detection

is

part

of

an

employee’s

job,

a

heightened notice requirement applies to so-called “fraud-alert”
employees.

Fanslow, 384 F.3d at 484.

Perez-Garcia’s

job

involved

managing

While it is true that
receipts

and

reminding

employees to submit them, she was not charged with investigatory
duties, and was thus not a “fraud-alert” employee.

As such, she

need only show that the Park District was aware of her efforts
to investigate credit card abuse and other alleged misspending.
See, id.

As discussed above, Rueda, Kraft, and Martinucci knew

that Perez-Garcia had spoken to Rodriguez about improper credit
card use and the potential misuse of funds, and Rodriguez and
Rueda

suspected

that

Perez-Garcia

Duran about this activity.

had

supplied

documents

to

From this, it is possible to infer

that the Park District was aware that Perez-Garcia was looking
into potential fraud.
Finally, the Court addresses the issue of causation.

The

“at least in part” standard closely resembles the “motivating
factor” element in Perez-Garcia’s First Amendment claim.

See,

Haka v. Lincoln Cnty., 533 F.Supp.2d 895, 911 (W.D. Wis. 2008).
Thus, for the same reasons discussed above — specifically Rueda
and Rodriguez’s comments and the inconsistent explanations for
Perez-Garcia’s termination — the Court finds that Perez-Garcia
- 25 -

has raised a triable issue of fact as to causation.

The Park

District’s Motion for Summary Judgment on Count II is therefore
denied.
IV.

CONCLUSION

For the reasons stated herein, the Individual Defendants’
Motion for Summary Judgment [ECF No. 126] is granted as to Kraft
and Martinucci and denied as to the Board Members.

The Park

District’s Motion for Summary Judgment [ECF No. 123] is denied.
The combined Motion to Strike [ECF No. 160] is denied as moot.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: October 5, 2015

- 26 -