Villacci et al v. Herrell et al
Filing
33
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 12/18/2014. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH VILLACCI, et al.,
Plaintiffs,
v.
MARI HERRELL, et al.,
Defendants.
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No. 14 C 3907
MEMORANDUM OPINION AND ORDER
Plaintiffs are thirteen former police officers for the
Memorial Park District (“District”) in Hillside, Illinois.
The
District is a unit of local government organized under the Park
District Code, 70 ILCS § 1205/1-1 et seq.
Plaintiffs allege that the District, its Director, its
former Chief of Police, and the five individuals who serve on
its Board of Commissioners (collectively, “Defendants”)
retaliated against them for exercising their First Amendment
rights (Counts I and III) and terminated their employment in
violation of their procedural due process rights (Count II).
Count IV seeks a declaratory judgment that Defendants violated
Plaintiffs’ rights under the First and Fourteenth Amendments.
Defendants have moved to dismiss the first amended
complaint, with prejudice, on the ground that it fails to state
any claims upon which relief may plausibly be granted.
1
See Fed.
R. Civ. P. 12(b)(6).
I grant Defendants’ motion to dismiss, in
part, for the reasons stated below.
I.
At the motion to dismiss stage, I must accept as true all
well-pleaded allegations in the complaint and draw all
reasonable inferences in Plaintiffs’ favor.
See Vesely v.
Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014).
However, I
“need not accept as true any legal assertions or recital of the
elements of a cause of action supported by mere conclusory
statements.”
Id. at 664-65 (internal quotation omitted).
A.
Plaintiffs were among a group of police officers who wanted
to join the Illinois Council of Police (“ICP”) union.
No. 22 (“Am. Compl.”) at ¶ 29.
See Dkt.
On December 10, 2013, the ICP
filed a petition with the Illinois Labor Relations Board under 5
ILCS § 315/9 certifying that a majority of the District’s police
officers wanted the ICP to act as their exclusive
representative.
Id. at ¶ 30.
On or around February, 25, 2014,
the Illinois Labor Relations Board ruled that the ICP had made
an adequate showing of majority interest and overruled the
District’s objections to the petition.
Id. at ¶¶ 32-33.
On January 21, 2014, while the ICP’s petition was pending,
the District’s Board of Commissioners (“Board”) voted to keep
the police department open.
Id. at ¶ 34.
2
Over the next month,
however, the Board held a closed door meeting at which the
Commissioners discussed Plaintiffs as a group and whether to
close the District’s police department.
Id. at ¶ 35.
On February 18, 2014, before the Illinois Labor Relations
Board had ruled on the ICP’s petition, the Commissioners
reversed their prior decision and voted to eliminate the
District’s police department effective May 1, 2014.
36.
Id. at ¶
When the police department officially closed, Plaintiffs
were reclassified as security guards; forced to relinquish their
police uniforms and commission cards; and told that they could
no longer utilize firearms, handcuffs, or other law enforcement
equipment.
Id. at ¶¶ 38-39.
Plaintiffs remain employed by the District as “security
officers” except for Joseph Villacci (“Villacci”), who was
terminated on or around May 1, 2014.
Id. at ¶¶ 4-16.
In their
new roles as security officers, Plaintiffs are expected to
perform the same duties they performed as police officers, but
without law enforcement equipment.
Id. at ¶ 40.
B.
Plaintiffs have sued the District and seven of its
officials--the Director, former Chief of Police, and five
Commissioners--in their individual capacities.
In Count I of the complaint, Plaintiffs allege that
Defendants retaliated against them for engaging in protected
3
First Amendment activity.
Before the Board voted to dissolve
the District’s police department, Plaintiffs allegedly engaged
in two forms of protected activity: (1) attempting to unionize
the District’s police officers and (2) raising concerns about
“inoperable police radios, lack of firearm requalification and
dilapidated law enforcement equipment.”
Id. at ¶ 47.
Plaintiffs believe that Defendants took several adverse actions
against them because of their union activities and complaints
about inadequate training and equipment.
Id. at ¶ 51 (alleging
that adverse actions included “reclassification of their job
duties; denial of renewed commissions; [and] deprivation of use
of law enforcement equipment”).
In Count II, Plaintiffs allege that Defendants deprived
them of a protected property interest in their jobs as police
officers without providing due process.
In Count III, Villacci alleges that the District retaliated
against him for engaging in protected First Amendment activity.
Villacci allegedly complained that:
Plaintiffs were not receiving adequate firearm retraining; police radios were in poor condition;
officer safety and citizen safety was in (and
continues
to
be
in)
jeopardy
because
of
the
possibility of officers not able to communicate; and
that other law enforcement equipment was unable to be
used in the line of duty.
Id. at ¶ 60.
Count III is effectively subsumed with Count I.
Finally, in Count IV, Plaintiffs seek a declaratory
4
judgment that the conduct alleged in the previous counts
violates the First and Fourteenth Amendments.
Defendants have moved to dismiss Plaintiffs’ complaint on
several grounds.
The individual Defendants argue that they are
entitled to legislative and/or qualified immunity and that the
complaint fails to allege that they personally participated in
the alleged constitutional violations and.
The District, in
turn, argues that Plaintiffs have failed to allege plausible
First Amendment or procedural due process claims.
II.
I start with the individual Defendants’ arguments for
dismissal.
A complaint fails to state a plausible claim when
its factual allegations, accepted as true, show that one or more
Defendants are entitled to immunity from suit.
See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
A.
“It is well established that federal, state, and regional
legislators are entitled to absolute immunity from civil
liability for their legislative activities.”
Harris, 523 U.S. 44, 46 (1998).
Bogan v. Scott-
Bogan held that “local
legislators are likewise absolutely immune from suit under §
5
1983 for their legislative activities.”
Id. at 49.
Legislative immunity applies when a challenged action was
both (1) “legislative in form” and (2) “legislative in
substance.”
Bagley v. Blagojevich, 646 F.3d 378, 392 (7th Cir.
2011) (internal quotation omitted).
“Whether an act is
legislative [in form or in substance] turns on the nature of the
act, rather than on the motive or intent of the official
performing it.”
Bogan, 523 U.S. at 54.
Stated differently, “an
ordinance adopted through the legislative process, and having
the force of law, is covered by legislative immunity no matter
the motives of those who proposed, voted for, or otherwise
supported the proposal.”
Benedix v. Vill. of Hanover Park,
Ill., 677 F.3d 317, 318 (7th Cir. 2012).
1.
The Seventh Circuit has identified three types of
activities that are legislative in form: “(1) core legislative
acts such as introducing, debating, and voting on legislation;
(2) activities that could not give rise to liability without
inquiry into legislative acts and the motives behind them; and
(3) activities essential to facilitating or preventing the core
legislative process.”
Biblia Abierta v. Banks, 129 F.3d 899,
903 (7th Cir. 1997); see also Bogan, 523 U.S. at 55 (holding
that introducing a budget ordinance, voting for it, and signing
it into law are “formally legislative” acts because are
6
“integral steps in the legislative process”).
In this case, Plaintiffs allege that the Board voted on
January 21, 2014 to keep the District’s police department open;
held a closed door meeting over the next month at which they
discussed Plaintiffs as a group; and voted on February 18, 2014
to eliminate the police department after all.
See Am. Compl. at
¶¶ 34-36.
In essence, Plaintiffs are challenging the vote of each
Commissioner to close the District’s police department after the
Board deliberated in private.
Voting on a proposed ordinance is
a “quintessentially legislative” act for which the Commissioners
are entitled to absolute immunity.
Bogan, 523 U.S. at 55; see
also Biblia Abierta, 129 F.3d at 904 (“Introducing and voting on
legislation are elements of the core legislative process and
cannot be separated from that legislative function.”).
Plaintiffs counter that legislative immunity does not
protect the Commissioners because their private deliberations
were not legislative in nature.
This argument overlooks the
fact that “debating” a proposed ordinance, whether in public or
in private, is core legislative activity.
Id. at 903.
Moreover, anything the Board’s private deliberations might
reveal about each Commissioner’s subjective motivations is
irrelevant to legislative immunity.
See Bogan, 523 U.S. at 54
(noting that court of appeals “erroneously relied on [mayor’s
7
and city council member’s] subjective intent in resolving the
logically prior question of whether their acts were
legislative”).
In short, the Commissioners’ public vote and private
deliberations about whether to eliminate the District’s police
department were legislative in form.
2.
The key to determining whether a challenged action was
legislative in substance is the “distinction between actions
that involve the elimination of positions for policy reasons
(legislative actions) and actions that result in an individual's
termination for reasons that relate to that individual
(administrative actions).”
Bagley, 646 F.3d at 394; compare
Nisenbaum v. Milwaukee County, 333 F.3d 804, 808 (7th Cir. 2003)
(introducing county budget that eliminated employee’s position
was a substantively legislative action) with Baird v. Bd. of
Educ. for Warren Comm. Unit Sch. Dist. No. 205, 389 F.3d 685,
696 (7th Cir. 2004) (terminating principal for reasons stated in
performance evaluation was not a substantively legislative
action).
The Board’s vote to eliminate the entire police department,
as opposed to firing only select police officers, clearly falls
on the legislative side of this dichotomy.
The Supreme Court
explained in Bogan why eliminating an entire department of
8
government is a substantively legislative action:
The ordinance reflected a discretionary, policymaking
decision implicating the budgetary priorities of the
city and the services the city provides to its
constituents.
Moreover, it involved the termination
of a position, which, unlike the hiring or firing of a
particular employee, may have prospective implications
that reach well beyond the particular occupant of the
office.
And the city council, in eliminating [an
entire department], certainly governed in a field
where legislators traditionally have power to act.
523 U.S. at 55-56; see also Bagley, 646 F.3d at 394 (holding
that governor’s line item veto of the captain position in the
Illinois Department of Corrections was a substantively
legislative action); Rateree v. Rockett, 852 F.2d 946, 950 (7th
Cir. 1998) (holding that local commissioners who voted to
eliminate plaintiffs’ jobs from city budget took a substantively
legislation action).
In sum, the five members of the Board of Commissioners were
acting legislatively, in form and in substance, when they voted
to eliminate the District’s police department.
It follows that
Counts I and II must be dismissed with respect to Commissioners
Alesia, Evans, Miller, Russo, and Sartore.
In contrast, the complaint is silent about what role, if
any, the other individual Defendants--the District’s Director
(Mari Herrell) and its former Chief of Police (Sam Sei)--played
in the Board’s vote to eliminate the police department.
Therefore, I cannot decide at the pleading stage whether
9
Defendants Herrell and Sei are entitled to legislative immunity.
B.
Defendants Herrell and Sei have moved to dismiss Counts I
and II on two additional grounds: (1) that the complaint fails
to allege that they personally participated in the alleged
constitutional violations and (2) that they are entitled to
qualified immunity because the constitutional rights they
allegedly violated were not clearly established.
1.
“Section 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, liability does not
attach unless the individual defendant caused or participated in
a constitutional deprivation.”
Hildebrandt v. Ill. Dep’t of
Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003) (internal
quotation omitted).
While the complaint is silent about what role (if any)
Defendants Herrell and Sei played in the decision to eliminate
the District’s police department, Paragraph 51 plainly alleges
that they retaliated against Plaintiffs for engaging in
protected First Amendment activities.
See Am. Compl. at ¶ 51
(alleging that “Defendants did, as retaliation against
Plaintiffs, take numerous tangible, material, adverse employment
actions (e.g., reclassification of their job duties, denial of
renewed commissions; deprivation of use of law enforcement
10
equipment) against Plaintiff[s] because of [their] speech of
public concern”).
This allegation, directed against Defendants
as a group, puts Defendants Herrell and Sei on notice of how
they allegedly participated in a First Amendment violation.
See
Brooks v. Ross, 578 F.3d 574, 582 (7th Cir. 2009) (holding that
allegation directed against defendants as a group satisfied
personal involvement requirement for § 1983 claims).
I need not decide whether Plaintiffs have adequately
alleged that Defendants Herrell and Sei were personally involved
in violating their due process rights because that claim, Count
II, fails on other grounds.
See infra at § III.B (holding that
Plaintiffs have failed to allege a plausible property right to
continued employment as police officers).
2.
The only remaining argument for dismissing Count I as to
Defendants Herrell and Sei is that they are entitled to
qualified immunity.
“A government official sued under § 1983 is entitled to
qualified immunity unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.”
(2014) (per curiam).
Carroll v. Carman, 135 S.Ct. 348, 350
“A right is clearly established only if
its contours are sufficiently clear that ‘a reasonable official
would understand that what he is doing violates that right.’”
11
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987));
see also Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011)
(cautioning courts “not to define clearly established law at a
high level of generality”).
The relevant question in this case is whether, at the time
of the alleged retaliation, Defendants Herrell and Sei
reasonably could have believed that complaints by police
officers about inadequate training and equipment were
unprotected speech.
See Lane v. Franks, 134 S.Ct. 2369, 2381
(2014) (framing qualified immunity question in a First Amendment
case along similar lines).
The answer is no.
In Gustafson v. Jones, 117 F.3d 1015, 1021 (7th Cir. 1997),
the Seventh Circuit held that police supervisors who allegedly
retaliated against officers because they voiced concerns about
an order prohibiting follow-up investigation were not entitled
to dismissal on qualified immunity grounds.
The court stated:
“It has...been clear for years that [employee] speech about
police protection and public safety raises matter of public
concern.”
Id. (citing Glass v. Dachel, 2 F.3d 733, 741 (7th
Cir. 1993); Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir.
1990) (en banc)).
Here, as in Gustafson, Plaintiffs have alleged that they
raised concerns about departmental policies or practices that,
in their view, compromised officer and public safety.
12
“Under
these circumstances, it would be premature to find qualified
immunity for the defendants [at the pleading stage].”
Id.
III.
Unlike the individual Defendants, the District cannot
invoke legislative or qualified immunity, see Benedix, 677 F.3d
at 318-19, and has not challenged whether it caused the alleged
constitutional violations, id. at 318 (legislation eliminating a
public employee’s position reflects the municipality’s policy
for purposes of Monell liability).
Instead, the District seeks dismissal on the ground that
Plaintiffs have failed to allege plausible First Amendment or
procedural due process claims.
See Johnson v. City of Shelby,
Miss., 135 S.Ct. 346, 347 (2014) (per curiam) (“A
plaintiff...must plead facts sufficient to show that her claim
has substantive plausibility.”).
A.
“To establish a claim for retaliation in violation of the
First Amendment, a public employee must prove that: (1) his
speech was constitutionally protected, (2) he has suffered a
deprivation likely to deter speech, and (3) his speech was at
least a motivating factor in the employer's action.”
Crawford, 738 F.3d 818, 825 (7th Cir. 2013).
Swetlik v.
The District
challenges only the first element: whether Plaintiffs’ alleged
speech was constitutionally protected.
13
A public employee claiming that his speech is entitled to
constitutional protection “must show that (1) he made the speech
as a private citizen, (2) the speech addressed a matter of
public concern, and (3) his interest in expressing that speech
was not outweighed by the state's interests as an employer in
promoting effective and efficient public service.”
Id.
(internal quotation omitted).
The District argues that Plaintiff’s alleged speech fails
the first two prongs of this test because it was (1) made
pursuant to their official job duties rather than as private
citizens and (2) did not address a matter of public concern.
1.
“[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.”
Ceballos, 547 U.S. 410, 421 (2006).
Garcetti v.
However, “the mere fact
that a citizen's speech concerns information acquired by virtue
of his public employment does not transform that speech into
employee—rather than citizen—speech.”
Lane, 134 S.Ct. at 2379.
“The critical question under Garcetti is whether the speech at
issue is itself ordinarily within the scope of an employee's
duties, not whether it merely concerns those duties.”
Id.
Plaintiffs allegedly engaged in two forms of speech: (1)
14
participating in the effort to unionize the District’s police
officers, see Am. Compl. at ¶ 29 and 49, and (2) expressing
concern about “inoperable police radios, lack of firearm
requalification and dilapidated law enforcement equipment,” id.
at ¶ 47.
Other than an oblique reference to views expressed at a
“meeting,” id. at ¶ 49, the complaint does not say when, where,
or to whom Plaintiffs allegedly addressed their concerns about
inferior training and equipment.
Plaintiffs, however, are not
required to plead these details in order to provide a “short and
plain statement” of their claim.
Fed. R. Civ. P. 8(a)(2); see
also Jefferson v. Ambroz, 90 F.3d 1291, 1296 (7th Cir. 1996)
(noting that First Amendment retaliation claims need not be
pleaded with particularity).
Plaintiffs have not pleaded themselves out of court by
alleging speech that was obviously made pursuant to their
official job duties.
There is, for instance, nothing in the
complaint suggesting that Plaintiffs’ official job duties
required them to raise concerns about inferior equipment or
inadequate training.
Cf. Garcetti, 547 U.S. at 422 (holding
that district attorney did not speak as a private citizen when,
acting pursuant to his job duties, he wrote “a memo that
addressed the proper disposition of a pending criminal case”).
Moreover, the subject matter of Plaintiffs’ alleged speech is
15
“non-dispositive” as to whether it should be regarded as public
or private.
Id. at 421; see also Lane, 134 S.Ct. at 2379
(public employee’s speech is not necessarily made pursuant to
official duties simply because it “relates to
public employment
or concerns information learned in the course of public
employment”).
The precise circumstances of Plaintiff’s alleged speech-and, by extension, whether their speech was made pursuant to
official job duties or as private citizens--will be fleshed out
during discovery.
2.
A public employee’s speech is entitled to First Amendment
protection only if it “relate[s] to a matter of public concern”
as opposed to “express[ing] a purely personal grievance.”
Meade
v. Moraine Valley Comm. Coll., 770 F.3d 680, 684 (7th Cir.
2014).
“Whether a statement rises to the level of public
concern is a question of law, and in answering this question
[courts] look to the ‘content, form, and context’ of the
statement.”
Chaklos v. Stevens, 560 F.3d 705, 712 (7th Cir.
2009) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)).
In order to apply the “public concern” test at the pleading
stage, “the court need only know the gist of what [Plaintiffs]
said, not the precise words [they] used to express
[themselves].”
Jefferson, 90 F.3d at 1296; see also Kristofek
16
v. Vill. of Orland Hills, 712 F.3d 979, 985 (7th Cir. 2013)
(noting that public concern test “looks to the overall objective
or point of the speech” rather than “fixating solely upon the
speaker’s motives” (emphasis in original).
The gist of Plaintiffs’ alleged speech was that their
equipment and training were inadequate.
Villacci, in
particular, voiced concern that these deficiencies were
jeopardizing officer and public safety.
Defendants’ argument
that this alleged speech concerns purely private matters is a
non-starter for the reasons stated supra at § II.B.2 when
rejecting Defendants Herrell and Sei’s qualified immunity
argument.
See Gustafson, 117 F.3d at 1021 (“It has...been clear
for years that speech about police protection and public safety
raises matters of public concern.”).
In sum, Plaintiffs have plausibly alleged that they spoke
as private citizens on a matter of public concern.
Accordingly,
the District’s motion to dismiss Counts I and III is denied.
B.
The District’s final argument is that Count II should be
dismissed because Plaintiffs have not alleged a plausible
property interest in their continued employment as police
officers.
“[I]n any due process case where the deprivation of
property is alleged, the threshold question is whether a
17
protected property interest actually exists.”
Cole v. Milwaukee
Area Tech. Coll. Dist., 634 F.3d 901, 904 (7th Cir. 2013).
“A
property interest in continued employment ‘can be created in one
of two ways, 1) by an independent source such as state law
securing certain benefits; or 2) by a clearly implied promise of
continued employment.’”
Palka v. Shelton, 623 F.3d 447, 452
(7th Cir. 2010) (quoting Phelan v. City of Chicago, 347 F.3d
679, 681 (7th Cir. 2003)).
“In the employment context, a
plaintiff generally is required to show that the terms of his
employment provide for termination only ‘for cause’ or otherwise
evince ‘mutually explicit understandings’ of continued
employment.”
Cole, 634 F.3d at 904 (quoting Omosegbon v. Wells,
335 F.3d 668, 674 (7th Cir. 2003)).
Plaintiffs rely on the Memorial Park Police Department
Rules and Regulations (“Rules”) as the source of their purported
right to continued employment as police officers. 1
28 at Ex. A.
See Dkt. No.
Section IV of the Rules lists fifty-three
prohibited acts, including several marked with an asterisk (*).
Section V, entitled “Sanctions,” explains that “[v]iolations
1
The District argues that I may not consider the police
department’s rules and regulations because they were neither
referenced in nor attached to Plaintiffs’ first amended
complaint. The Seventh Circuit has rejected this argument. See
Geinosky v. City of Chicago, 675 F.3d 743, 745 (7th Cir. 2012)
(“In the district court...a party opposing a Rule 12(b)(6)
motion may submit materials outside the pleadings to illustrate
the facts the party expects to be able to prove.”).
18
marked with a * will result in immediate discharge and
termination of employment.”
Id. at 11.
In contrast, violations
not marked with an asterisk “are to be considered as nondismissable [sic] acts if an employee is charges [sic] with a
first offense against any one of them.”
Id. at 11-12.
The asterisks do not define what constitutes “good cause”
for termination; instead, they serve the limited purpose of
distinguishing between first time offenses that will result in
immediate termination and those and will result only in a
reprimand or suspension.
The fact remains that nothing in the
Rules says that police officers may be fired only for good
cause; only for violating one of the rules listed in Section IV;
or only for one of the enumerated offenses marked with an
asterisk.
Indeed, the Seventh Circuit has held that enumerated
grounds for discipline, up to and including termination, in
police department regulations do not imply that employees may
only be terminated for cause.
See Cromwell v. City of Momence,
713 F.3d 361, 365 (7th Cir. 2013); see also Border v. City of
Crystal Lake, 75 F.3d 270, 275 (7th Cir. 1996) (“[T]he fact that
[municipality] has decided to give specific warning that certain
behaviors...will be punished, perhaps even result in
termination, is no limitation on its power to punish for other
reasons (or indeed to terminate for no reason at all, since the
employment is at will).”); Campbell v. City of Champaign, 940
19
F.2d 1111, 1112 (7th Cir. 1991) (observing that purpose of
enumerating grounds for discipline in an employee handbook “is
not to confer rights but to warn employees about conduct or
circumstances that will result in termination or other adverse
personnel action”).
In sum, Plaintiffs’ due process claim (Count II) must be
dismissed because they have failed to identify a plausible basis
for their purported right to continued employment as police
officers.
III.
Defendants’ motion to dismiss is GRANTED in part for the
reasons stated above.
The only plausible claims in the first
amended complaint are Count I (as to the District, Defendant
Herrell, and Defendant Sei); Count III; and Count IV (as to the
alleged First Amendment violations).
The remainder of the
complaint is dismissed with prejudice.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: December 18, 2014
20
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