Lawlor, et al v. Metropolitan Water Reclamation District of Greater Chicago, et al

Filing 67

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 3/13/2018. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENIS LAWLOR and DANIEL
VARALLO,
Plaintiffs,
v.
METROPOLITAN WATER
RECLAMATION DISTRICT OF
GREATER CHICAGO, et al.,

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Case No. 17-cv-117
Judge Robert M. Dow, Jr.

Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are the motion to dismiss [32] filed by Defendants Major Luis
Gutierrez, Lieutenant Cynthia Tencza, Karen Stec, and the Illinois State Police (collectively, the
“State Defendants”), the motion to dismiss [35] filed by Defendants Metropolitan Water
Reclamation District of Greater Chicago (“MWRD”), Kaye Heidenreich, David St. Pierre, and
Denise Korcal (collectively, the “MWRD Defendants), and the motion to dismiss [38] filed by
Defendant Motorola Solutions, Inc. (“Motorola”). For the reasons set forth below, Defendants’
motions to dismiss [32; 35; 38] are granted. To the extent Plaintiffs’ claims are not dismissed
with prejudice, Plaintiffs are given until April 16, 2018 to file an amended complaint, if Plaintiffs
believe they can cure the deficiencies identified below. The case is set for status on April 24,
2018 at 9:00 a.m.

I.

Background1
This lawsuit stems from the alleged malfunction of a handheld radio manufactured by

Motorola, which caused a conversation between Plaintiffs Denis Lawlor and Daniel Varallo to be
inadvertently broadcast over a radio channel dedicated to the Illinois State Police. A recording
of the conversation was copied and given to Plaintiffs’ employer, resulting in their termination.
Plaintiffs Denis Lawlor and Daniel Varallo were police officers for the MWRD. [1, at
¶¶ 15-16.] At approximately 1:00 a.m. on January 18, 2015, Plaintiffs were engaged in what
they characterize as a private conversation, which was intercepted by the Illinois State Police’s
Chicago North radio channel. Id. at ¶ 30. Only the Illinois State Police were authorized to
access and broadcast on the Chicago North radio channel. Id. at ¶ 30. The conversation between
Plaintiffs lasted approximately 58 minutes. Id. at ¶ 32.
Illinois State Police Telecommunication Specialist Angie Vandenberg, who was working
as the dispatcher on the Chicago North radio channel, did not recognize the voices of the persons
talking. Id. at ¶ 33. Vandenberg used an alert tone in an attempt to get Plaintiffs’ attention and
attempted to instruct Plaintiffs to stop talking, but the transmission of the conversation between
Plaintiffs continued. Id. at ¶ 34. Vandenberg admitted that she recognized that Plaintiffs’
conversation was personal in nature and did not involve official Illinois State Police business or a
public safety matter. Id. at ¶ 36.
Acting Master Sgt. Rodney Collins, who was the midnight shift commander that night,
listened to the entire conversation between Plaintiffs as the conversation was being transmitted
over the Illinois State Police’s Chicago North radio station. Id. at ¶ 38. Sgt. Collins realized that
the conversation between Plaintiffs did not have anything to do with any official Illinois State
1

For purposes of the motion to dismiss, the Court accepts as true all of Plaintiffs’ well-pleaded factual allegations
and draws all reasonable inferences in Plaintiffs’ favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614,
618 (7th Cir. 2007).

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Police business or public safety matter.

Id. at ¶ 39.

About 40 minutes into the private

conversation between Plaintiffs, Sgt. Collins figured out that it was MWRD personnel who were
inadvertently broadcasting over the Chicago North channel of the Illinois State Police. Id. at ¶
30. Sgt. Collins then called Sgt. Patrick Kennedy at the MWRD, and the transmission ended
shortly after. Id. at ¶ 30. Plaintiffs allege that the Illinois State Police recorded the entire private
conversation between Plaintiffs, but Plaintiffs do not indicate whether the Illinois State Police
always recorded the Chicago North radio channel. Id. at ¶ 37. Plaintiffs also fail to indicate who
at the Illinois State Police recorded the conversation.
After the incident, Sgt. Collins sent an email to his supervisor Captain Luis Gutierrez (a
State Defendant) to document the incident. Id. at ¶ 43. Defendant Gutierrez instructed Sgt.
Collins to open an investigation after the incident to determine whether or not there was any
criminal violation. Id. at ¶ 44. Defendant Gutierrez verbally requested Karen Stec (a State
Defendant) to provide him with a copy of “the communication.” Id. at ¶ 45. Defendant Stec had
experienced several open mic situations in the past, but had never recorded any other open mic
situation to a CD. Id. at ¶ 46. After listening to the conversation, Defendant Gutierrez realized
that the conversation had nothing to do with an emergency situation. Id. at ¶ 51. Defendant
Gutierrez then gave Illinois State Police Lieutenant Cindy Tencza (a State Defendant) a CD
containing Plaintiffs’ conversation and directed her to conduct an investigation. Id. Defendant
Gutierrez noted, however, that any such investigation should be closed if the MWRD conducted
an internal investigation. Id.
Defendant Gutierrez did not receive a formal written request or a subpoena from the
MWRD for the CD containing the recording of the private conversation between Plaintiffs. Id.
at ¶ 52. Rather, Defendant Tencza spoke with Kaye Heidenreich (an MWRD Defendant), the

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Chief of Police for the MWRD, and Defendant Tencza volunteered to give Defendant
Heidenreich the CD containing the recording of Plaintiffs’ conversation, which she did on
January 22, 2015. Id. at ¶ 53. After Defendant Heidenreich listened to the CD containing the
recording of Plaintiffs’ conversation, Denise Korcal (an MWRD Defendant), the Director of
Human Resources for the MWRD, was summoned to Defendant Heidenreich’s office to listen to
a portion of Plaintiffs conversation. Id. at ¶¶ 58-59. Defendant Korcal called David St. Pierre
(an MWRD Defendant), the Executive Director of the MWRD, and ordered that copies and a
transcript of Plaintiffs’ conversation be made. Id. at ¶¶ 59-61. The MWRD Defendants used the
recording of Plaintiffs’ conversation to terminate Plaintiffs’ employment with the MWRD. Id. at
¶¶ 68-69.
Plaintiffs brought this lawsuit bringing claims under 42 U.S.C. § 1983, alleging that the
State Defendants and the MWRD Defendants violated Plaintiffs’ (1) First Amendment rights,
(2) Fourth Amendment rights, (3) due process rights, and (4) equal protection rights. Plaintiffs
also allege that the State Defendants and the MWRD Defendants violated the Electronic
Communication Privacy Act. Finally, Plaintiffs bring a number of state-law claims against all
Defendants, including Defendant Motorola.

Before the Court are Defendants’ motions to

dismiss.
II.

Legal Standard
The standard that the Court applies to a Federal Rule of Civil Procedure 12(b)(1) motion

to dismiss for lack of subject matter jurisdiction depends on the purpose of the motion. See Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009); United Phosphorus,
Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.2003) (en banc), overruled on other
grounds by Minn–Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). If a defendant

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challenges the sufficiency of the allegations regarding subject matter jurisdiction, the Court
accepts all well-pleaded factual allegations as true and draw all reasonable inferences in favor of
the plaintiff. See Apex Digital, 572 F.3d at 443–44; United Phosphorus, 322 F.3d at 946. In
ruling on the motion, the district court also may look beyond the jurisdictional allegations
alleged in the complaint and take into consideration whatever evidence has been submitted on
the issue to determine if subject matter jurisdiction exists. Cty. of Cook v. HSBC N. Am.
Holdings Inc., 136 F. Supp. 3d 952, 958 (N.D. Ill. 2015). The burden of proof is on the party
asserting that jurisdiction exists—here, Plaintiffs. Id.; see also Gonzalez v. Bank of Am., N.A.,
2014 WL 26283, at *2 (N.D. Ill. Jan. 2, 2014) (“the plaintiff bears the burden of establishing the
basis for the court’s jurisdiction”).
To survive a Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted, the complaint first must comply with
Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of what the
* * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second,
the factual allegations in the complaint must be sufficient to raise the possibility of relief above
the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.
2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or a
‘formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Dismissal for failure to state a claim
under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise
a claim of entitlement to relief.” Twombly, 550 U.S. at 558. In reviewing a motion to dismiss

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pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiffs’ well-pleaded factual
allegations and draws all reasonable inferences in Plaintiffs’ favor. Killingsworth v. HSBC Bank
Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). However, “[t]o survive a motion to dismiss,
the well-pleaded facts of the complaint must allow the court to infer more than the mere
possibility of misconduct.” Langworthy v. Honeywell Life & Acc. Ins. Plan, 2009 WL 3464131,
at *2 (N.D. Ill. Oct. 22, 2009) (citing McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011)). Evaluating whether a “claim is sufficiently plausible to survive a motion to dismiss is ‘a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.’” Id. (quoting McCauley, 671 F.3d at 616).
III.

Analysis
A.

The Eleventh Amendment

“The Eleventh Amendment provides states with immunity from suits in federal courts
unless the State consents to the suit or Congress has abrogated their immunity.” Tucker v.
Williams, 682 F.3d 654, 658 (7th Cir. 2012) (citing Seminole Tribe v. Florida, 517 U.S. 44, 54
(1996)).

“State agencies are treated the same as states for purposes of the Eleventh

Amendment.” Id. (citing Davidson v. Bd. of Govs., 920 F.2d 441, 442 (7th Cir. 1990)). “A suit
against an official in her official capacity is equivalent to a suit against the agency she
represents.” Offor v. Ill. Dep’t of Human Servs., 2013 WL 170000, at *3 (N.D. Ill. Jan. 16,
2013).

However, there is no Eleventh Amendment bar to federal claims for prospective

injunctive relief against a state official in his or her official capacity. Ex parte Young, 209 U.S.
123, 155-56 (1908); Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 912 (7th Cir.
2003). “To seek injunctive relief, a plaintiff must show that he is under threat of suffering
‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not

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conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant;
and it must be likely that a favorable judicial decision will prevent or redress the injury.”
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); Vasich v. City of Chicago, 2013 WL
80372, at *8 (N.D. Ill. Jan.7, 2013).
The Illinois State Police are an arm of the state, i.e., a state agency. Tucker v. Williams,
682 F.3d 654, 659 (7th Cir. 2012). Thus, any claims for money damages against the Illinois
State Police are barred by the Eleventh Amendment, as are any such claims against officials of
the Illinois State Police in their official capacities. Plaintiff Lawlor relies on Gray v. Sanders,
372 U.S. 368 (1963), to argue that the Eleventh Amendment does not insulate states “when state
power is used as an instrument for circumventing a federally protected right.” [51, at 2 (quoting
Gray, 372 U.S. at 381).] However, the plaintiffs in Gray sought prospective relief only. Thus,
Gray supports Plaintiff Lawlor’s argument only to the extent that he seeks prospective relief.
Plaintiff Varallo implicitly recognizes that Plaintiffs’ claims for monetary damages
against the Illinois State Police and its officials in their official capacities are barred by the
Eleventh Amendment, instead arguing that his claims against the Illinois State Police and its
officials in their official capacities are not barred by the Eleventh Amendment because Plaintiffs
are seeking prospective injunctive relief ordering Defendants to refrain from further
constitutional violations.
However, Plaintiffs lack standing to seek injunctive relief ordering the State Defendants
to refrain from further constitutional violations. “To have standing for prospective injunctive
relief, a plaintiff must face a ‘real and immediate’ threat of future injury as opposed to a threat
that is merely ‘conjectural or hypothetical.’” Simic v. City of Chicago, 851 F.3d 734, 738 (7th
Cir. 2017) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). “Unlike with

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damages, a past injury alone is insufficient to establish standing for purposes of prospective
injunctive relief: ‘Past exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief * * * if unaccompanied by any continuing, present
adverse effects.’” Id. (quoting Lyons, 461 U.S. at 95-96).
Plaintiffs’ employment with the MWRD was terminated. [1, at ¶¶ 68-69.] Plaintiffs have
not alleged other facts indicating that they face a real or immediate threat of future injury
resulting from any alleged misconduct on the part of the State Defendants. Thus, Plaintiffs lack
standing to seek injunctive relief against the State Defendants.2 McKinney v. Illinois, 720 F.
Supp. 706, 709 (N.D. Ill. 1989) (dismissing claim for injunctive relief against plaintiff’s former
supervisor because plaintiff was no longer employed and therefore the alleged harassment was
unlikely to recur); Berry v. Illinois Dep’t of Human Servs., 2001 WL 111035, at *8 (N.D. Ill.
Feb.2, 2001) (“[T]hose plaintiffs that are no longer employed by [defendant] would not have
standing to seek an injunction modifying [defendant’s] future conduct.”); see also O’Shea v.
Littleton, 414 U.S. 488, 495–96 (1974) (“Past exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief, however, if unaccompanied by any
continuing, present adverse effects.”). Accordingly, Plaintiffs’ claims against the Illinois State
Police and Plaintiffs’ claims against officials of the Illinois State Police (Defendants Major Luis
Gutierrez, Lieutenant Cynthia Tencza, and Karen Stec) in their official capacities are dismissed
with prejudice.

2

The Court notes that the Eleventh Amendment bars state-law claims against state officials in their official capacity,
regardless of the relief sought, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984), unless the
State has waived its Eleventh Amendment immunity. MCI Telecommunications Corp. v. Illinois Bell Tel. Co., 222
F.3d 323, 337 (7th Cir. 2000). Plaintiffs have not argued that the State waived its Eleventh Amendment immunity.
Thus, even if Plaintiffs had standing to seek injunctive relief, the Eleventh Amendment would still bar Plaintiffs’
state-law claims against the State Defendants.

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B.

Municipal Liability

In order to find a municipality liable under § 1983, Plaintiffs must prove that a municipal
policy or custom caused their injury. City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988);
Pembaur v. Cincinnati, 475 U.S. 469, 480-81 (1986). This is because “[m]unicipalities are
answerable only for their own decisions and policies; they are not vicariously liable for the
constitutional tort of their agents.” Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992)
(quoting Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658 (1978)). “When a plaintiff sues
an individual officer in his official capacity, the suit is treated as if the plaintiff has sued the
municipality itself.” Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006), as
amended on denial of reh'g (May 25, 2006) (citing Kentucky v. Graham, 473 U.S. 159, 165-66
(1985)). The MWRD is a municipality for the purposes of § 1983. Hewitt v. Metro. Water
Reclamation Dist. of Greater Chicago, 2002 WL 31176252, at *3 (N.D. Ill. Sept. 30, 2002).
Courts have identified three ways in which a municipality can be liable to a plaintiff for a
civil rights violation resulting from government policy:
(1) an express policy that, when enforced, causes a constitutional deprivation;
(2) a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well-settled as to constitute a custom or
usage with the force of law; or (3) an allegation that the constitutional injury was
caused by a person with final policymaking authority.
Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994) (internal quotations and
citations omitted). Plaintiffs do not allege any policy or practice of the MWRD that led to
Plaintiffs’ alleged civil rights violation. Accordingly, Plaintiffs’ claims against the MWRD and
Plaintiffs’ claims against officials of the MWRD (Kaye Heidenreich, David St. Pierre, and
Denise Korcal) in their official capacities are dismissed without prejudice.

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C.

Constitutional Claims
i.

First Amendment

Count I alleges that the State Defendants and the MWRD Defendants violated Plaintiffs’
First Amendment right to free speech. The complaint alleges that the State Defendants’ decision
“to record the Plaintiffs’ private conversation without their knowledge and permission” and “to
disseminate the recording of Plaintiffs’ private conversation without their knowledge and
permission violated” their First Amendment rights to free speech. [1, at ¶¶ 82-83.] Based on the
limited allegations in the complaint, the basis of Plaintiffs’ First Amendment claim is not entirely
clear.
The MWRD Defendants understood Plaintiffs to be raising a First Amendment retaliation
claim and moved to dismiss the retaliation claim, arguing that Plaintiffs fail to allege facts
establishing necessary elements of a First Amendment retaliation claim. The State Defendants
understood Plaintiffs to be raising a First Amendment claim based on a purported First
Amendment right not to have their conversation recorded and/or disseminated and also moved to
dismiss the claim, arguing that there is no clearly established First Amendment protection against
the recording and/or dissemination of a private conversation.

In response to the MWRD

Defendants’ motion to dismiss, Plaintiff Lawlor conceded that the complaint fails to state a First
Amendment claim against the MWRD Defendants. [51, at 26.] Although Plaintiff Varallo does
not make a similar concession,3 Plaintiffs’ First Amendment claim against the State Defendants
and the MWRD Defendants fails under both interpretations.
3

The docket entry for the response filed by attorney Alexander Michael [51] indicates that the response was filed on
behalf of Plaintiff Lawlor. However, the response sometimes refers to plural “Plaintiffs”—indicating that the
response was filed on behalf of both Plaintiffs. [51.] For example, the response states that “Plaintiffs concede that
while although [sic] Count I is properly plead against other defendants, it does not apply to MWRD Defendants.”
[51, at 26 (emphasis added).] Because Plaintiff Varallo filed a separate response—through his attorneys Daniel
Austin and Dennis Berkson—that specifically adopts only portions of the response filed by Mr. Alexander, the
Court assumes that the brief filed by Mr. Michael raises arguments only on behalf of Plaintiff Lawlor. Given that

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In order to bring a First Amendment retaliation claim in the employment context,
Plaintiffs must show that (1) their speech was a matter of public concern, and (2) their speech
played at least a substantial part in the employer’s decision to take adverse action against them.
Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002). “If the plaintiffs can carry their burden
on these two elements, the defendants can only prevail if they prove by a preponderance of the
evidence that the government’s interest, as an employer, in efficiently providing government
services outweighs the employees’ First Amendment interests, or if they can prove that they
would have disciplined the employees even in the absence of the speech.” Id. (citing Klunk v.
County of St. Joseph, 170 F.3d 772, 775 (7th Cir. 1999)). “The stronger the employee’s interest
in speaking, the more substantial a showing the state must make to justify its restriction of that
speech.” Gustafson, 290 F.3d at 909 (citing Waters v. Churchill, 511 U.S. 661, 675 (1994)). In
Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, the
Supreme Court set forth the factors to consider in this balancing test. Specifically, “Pickering
contemplates a highly fact-specific inquiry into a number of interrelated factors: (1) whether the
speech would create problems in maintaining discipline or harmony among co-workers; (2)
whether the employment relationship is one in which personal loyalty and confidence are
necessary; (3) whether the speech impeded the employee’s ability to perform her responsibilities;
(4) the time, place, and manner of the speech; (5) the context within which the underlying
dispute arose; (6) whether the matter was one on which debate was vital to informed decisionmaking; and (7) whether the speaker should be regarded as a member of the general public.”
Gustafson, 290 F.3d at 909 (citing Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000)).

Mr. Michael has filed an appearance on behalf of both Plaintiffs [43], the Court asks that Mr. Michael clearly
indicate in future filings whether he is acting on behalf of both Plaintiffs or on behalf of a single Plaintiff.

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Plaintiffs here fail to allege facts establishing that their speech was a matter of public
concern. Plaintiffs do not include any allegations about the substance of their conversation, other
than to assert that it was “a private conversation.” [See, e.g. 1, at ¶31.] Plaintiff Varallo argues
that “there is no basis to assert that the free speech of Plaintiffs did not involve a matter of public
concern.” [55, at 5.] Plaintiff Varallo further argues that dismissal is inappropriate, as Pickering
requires a fact-specific analysis. Id. However, the application of the Pickering balancing
analysis only is necessary once Plaintiffs have met their initial burden of establishing that
(1) their speech was a matter of public concern, and (2) their speech played at least a substantial
part in the employer’s decision to take adverse action against them. Thus, Plaintiffs must allege
facts sufficient to establish that their conversation was a matter of public concern. Milsap v. City
of Chicago, 2018 WL 488270, at *4 (N.D. Ill. Jan. 19, 2018) (dismissing First Amendment
retaliation claim because plaintiff did not allege that his speech was a matter of public concern).
Plaintiffs fail to do so here.
To the extent Plaintiffs seek to bring a First Amendment claim based on a purported First
Amendment right not to have their conversation recorded and/or disseminated, Plaintiffs also fail
to state a claim. With respect to the MWRD Defendants, Plaintiffs do not allege that they
recorded or disseminated their private conversation. Furthermore, there is no stand-alone First
Amendment right not to have a conversation recorded and/or disseminated. Plaintiffs do not cite
to—and the Court is not aware of—any cases establishing such a stand-alone right.
Even if there were a right not to have conversations recorded and/or disseminated, the
State Defendants would be entitled to qualified immunity on any First Amendment claim based
on such a right. “The qualified immunity defense is designed to protect government agents
‘from liability for civil damages insofar as their conduct does not violate clearly established

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statutory or constitutional rights of which a reasonable person would have known.’” Knox v.
Smith, 342 F.3d 651, 657 (7th Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). To determine the availability of qualified immunity in a particular case, the Court
engages in a two-step inquiry. “The initial, threshold question is whether the facts, taken in the
light most favorable to the plaintiff, show that the official’s conduct violated a constitutional
right.” Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If a constitutional right is violated,
then the Court “must determine if that right was clearly established at the time of the alleged
violation.” Id. (citing Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003)). This inquiry is
flexible, however, and the Court may decide that conduct did not violate a clearly established
constitutional right without deciding if a constitutional right was violated at all. Pearson v.
Callahan, 555 U.S. 223, 242 (2009).

Furthermore, “the clearly established law must be

‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
As discussed above, the parties have not cited—and the Court is not aware of—any cases
recognizing that it is a violation of the First Amendment to record and/or disseminate a recording
of a conversation, much less any cases clearly establishing a First Amendment violation under
the particular facts of this case. Thus, the State Defendants and the MWRD Defendants are
entitled to qualified immunity with respect to this theory.
In sum, Count I is dismissed. To the extent Plaintiffs’ First Amendment claim is based
on the purported First Amendment right not to have their conversation recorded and/or
disseminated, Plaintiffs’ First Amendment claim is dismissed with prejudice, as it would be
futile to allow Plaintiffs to bring a First Amendment claim based on this legal theory. To the
extent Plaintiffs bring a First Amendment retaliation claim, Plaintiffs’ First Amendment claim is

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dismissed with leave to replead any such claim that is not barred by the Eleventh Amendment, as
discussed above.
ii.

Fourth Amendment

Count II alleges that the State Defendants and the MWRD Defendants violated Plaintiffs’
Fourth Amendment rights. The Fourth Amendment protects “the right of the people to be secure
in their persons, houses, papers and effects, against unreasonable searches and seizures.” To
state a § 1983 claim for a Fourth Amendment violation, Plaintiffs must plausibly allege that: (1)
there was a search or seizure; and (2) the search or seizure was unreasonable. Angara v. City of
Chicago, 897 F. Supp. 355, 358 (N.D. Ill. 1995). “A Fourth Amendment search occurs when the
government violates a subjective expectation of privacy that society recognizes as unreasonable.”
(alteration and quotation marks omitted). United States v. Scott, 731 F.3d 659, 663 (7th Cir.
2013). A “seizure” for the purposes of the “Fourth Amendment occurs when a person’s freedom
of movement is restrained either by means of physical force or show of authority,” Carter v. City
of Milwaukee, 743 F.3d 540, 543 (7th Cir. 2014) (quotation marks omitted), or “when there is
some meaningful interference with an individual’s possessory interests in that property.” United
States v. Jacobsen, 466 U.S. 109, 113 (1984).
Defendants argue that Plaintiffs fail to allege facts establishing that they had a reasonable
expectation in privacy. “A reasonable expectation of privacy exists when ‘(1) the complainant
exhibits an actual (subjective) expectation of privacy and, (2) the expectation is one that society
is prepared to recognize as ‘reasonable.’” United States v. Ruth, 65 F.3d 599, 604 (7th Cir.1995)
(quoting United States v. Myers, 46 F.3d 668, 669 (7th Cir. 1995)). The Supreme Court has
recognized that “some government offices may be so open to fellow employees or the public that
no expectation of privacy is reasonable.” O’Connor v. Ortega, 480 U.S. 709, 717-18 (1987). If

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the area that was searched was given over to an employee’s exclusive use, courts are likely to
uphold that employee’s expectation of privacy as objectively reasonable. Plock v. Bd. of Educ.
of Freeport Sch. Dist. No. 145, 545 F. Supp. 2d 755, 757 (N.D. Ill. 2007). A person objecting to
the search of a particular area bears the burden of establishing “‘a legitimate expectation of
privacy’ in the area searched.” Rawlings v. Kentucky, 448 U.S. 98, 104 (1980) (quoting Katz v.
United States, 389 U.S. 347 (1967)); see also Love v. City of Chicago, 1998 WL 60804, at *9
(N.D. Ill. Feb. 6, 1998).
Plaintiffs allege that they were on duty at the MWRD’s Stickney plant when they had the
conversation that was allegedly intercepted by the Illinois State Police. [1, at ¶¶ 29-30.] But
they do not allege any facts indicating that they were in a private area of the plant. Plaintiff bears
the burden of establishing that they had a legitimate expectation of privacy. Gonzalez-Koeneke
v. Rockford Dist. 205, 2014 WL 11370445, at *2 (N.D. Ill. June 16, 2014) (dismissing Fourth
Amendment claim where the plaintiff failed to allege facts showing that she had a reasonable
expectation of privacy that society recognizes as reasonable). Plaintiffs fail to do so here.
Defendants also argue that Plaintiffs’ Fourth Amendment claim fails because Plaintiffs
fail to allege facts sufficient to establish any intentional search or seizure. In order to state a
§ 1983 claim against Defendants for violating Plaintiffs’ Fourth Amendment rights, Plaintiffs
must allege intentional conduct on the part of Defendants. Bublitz v. Cottey, 327 F.3d 485, 488
(7th Cir. 2003). Defendants further argue that if they did not intentionally intercept Plaintiffs’
conversation, their subsequent recording and dissemination of that conversation did not
“transform their actions into a search.” [33, at 16 (quoting United States v. Thompson, 811 F.3d
944, 949-50 (7th Cir. 2016)).]

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Plaintiffs concede that “there is nothing that the [State Defendants] could have done
about initially overhearing [Plaintiffs’ conversation] because it came upon them through no
action of their own,” but Plaintiffs argue that the State Defendants “did not need to record,
transcribe, and disseminate the tape.” [51, at 7; 55, at 7 (incorporating Varallo’s response).] In
other words, Plaintiffs admit that the State Defendants did not violate the Fourth Amendment by
listening to Plaintiffs’ conversation, but argue that the State Defendants did violate the Fourth
Amendment by recording, transcribing, and disseminating the tape of the conversation.
In making this argument, Plaintiffs rely on Walter v. United States, which held that the
government violated the defendants’ Fourth Amendment right to privacy by viewing
pornographic films turned over by a third-party without obtaining a search warrant. 447 U.S.
649, 656 (1979). In Walter, sealed packages containing films depicting sexual activities were
incorrectly shipped to a private company by a private carrier. Id. at 651. Employees of the
private company opened the package and discovered films with suggestive drawings on one side
and explicit descriptions of the contents of each film on the other side. Id. at 652. One of the
employees tried to view portions of a film by holding it up to the light, but the images were too
small to be examined by the naked eye. Id. The employees then called the FBI, who picked up
the packages. Id. The FBI viewed the contents of the tape without obtaining a warrant. Id.
After the tapes were used to convict the defendants of federal obscenity charges, the defendants
challenged the government’s use of the films. Id. Even though a plurality of the Supreme Court
recognized that a wrongful search or seizure conducted by a private party does not rise to a
constitutional violation of the Fourth Amendment, it concluded that the FBI violated the Fourth
Amendment by expanding the scope of the search conducted by the employees of a private
company. The plurality explained:

16

If a properly authorized official search is limited by the particular terms of its
authorization, at least the same kind of strict limitation must be applied to any
official use of a private party’s invasion of another person’s privacy. Even though
some circumstances—for example, if the results of the private search are in plain
view when materials are turned over to the Government—may justify the
Government’s re-examination of the materials, surely the Government may not
exceed the scope of the private search unless it has the right to make an
independent search. In these cases, the private party had not actually viewed the
films. Prior to the Government screening one could only draw inferences about
what was on the films. The projection of the films was a significant expansion of
the search that had been conducted previously by a private party and therefore
must be characterized as a separate search.
Id. at 657 (internal citations omitted). In Walter, the government did not know what they would
find on the films. Even though the government could speculate about what was on the films,
neither the government nor the third party that opened the package could testify as to the content
of the films. Here, Plaintiffs’ conversation was presented to certain State Defendants. The State
Defendants who were lawfully listening to Plaintiffs’ conversation could testify as to the
contents of the conversation. Plaintiffs do not allege that Defendants conducted any search
beyond a re-examination of the materials presented to them.
Plaintiffs point to language in Justice White’s concurring opinion, indicating that even if
the third party had viewed the films, the government still would have needed a warrant for any
subsequent viewings of the film. [51, at 6-7.] However, later Supreme Court decisions have
rejected this position.
In United States v. Jacobsen, the employees of a private freight carrier observed a white
powdery substance, which was originally concealed within eight layers of wrappings, during
their examination of a damaged package. 466 U.S. 109, 111 (1984). “They summoned a federal
agent, who removed a trace of the powder, subjected it to a chemical test and determined that it
was cocaine.” Id. After being convicted of possession of an illegal substance with intent to
distribute, the defendants challenged their conviction on the ground that the agent’s examination
17

of the box violated the Fourth Amendment. Id. It was not clear whether the powder was visible
to the agent when he arrived on the scene, but the Court concluded that “[e]ven if the white
powder was not itself in ‘plain view’ because it was still enclosed in so many containers and
covered with papers, there was a virtual certainty that nothing else of significance was in the
package and that a manual inspection of the tube and its contents would not tell him anything
more than he already had been told.” Id. at 119. The Court reasoned:
Respondents do not dispute that the Government could utilize the Federal Express
employees’ testimony concerning the contents of the package. If that is the case,
it hardly infringed respondents’ privacy for the agents to reexamine the contents
of the open package by brushing aside a crumpled newspaper and picking up the
tube. The advantage the Government gained thereby was merely avoiding the
risk of a flaw in the employees’ recollection, rather than in further infringing
respondents’ privacy. Protecting the risk of misdescription hardly enhances any
legitimate privacy interest, and is not protected by the Fourth Amendment.
Respondents could have no privacy interest in the contents of the package, since it
remained unsealed and since the Federal Express employees had just examined
the package and had, of their own accord, invited the federal agent to their offices
for the express purpose of viewing its contents. The agent’s viewing of what a
private party had freely made available for his inspection did not violate the
Fourth Amendment. Similarly, the removal of the plastic bags from the tube and
the agent’s visual inspection of their contents enabled the agent to learn nothing
that had not previously been learned during the private search. It infringed no
legitimate expectation of privacy and hence was not a “search” within the
meaning of the Fourth Amendment.
Id. (internal citations omitted). As long as the government does “not exceed the scope of the
private search, [the government] may view or replicate the results of that search without
violating the Fourth Amendment.” United States v. Shelton, 418 F. App’x 514, 517 (7th Cir.
2011) (citing United States v. Jacobsen, 466 U.S. 109, 113-16 (1984)); United States v. Hall, 142
F.3d 988, 993 (7th Cir.1998); Walter, 447 U.S. at 656. Thus, although Plaintiffs rely on Walter
to argue that additional layers of government actors needed a warrant to record, transcribe, and
disseminate their conversation, Walter does not establish that the State Defendants’ conduct
violated the Fourth Amendment.
18

Furthermore, a long line of cases hold that the recording or transmitting of a conversation
legally overheard does not violate the Fourth Amendment. See, e.g., United States. v. White, 401
U.S. 745, 751 (1971) (“If the conduct and revelations of an agent operating without electronic
equipment do not invade the defendant’s constitutionally justifiable expectations of privacy,
neither does a simultaneous recording of the same conversations made by the agent or by others
from transmissions received from the agent to whom the defendant is talking and whose
trustworthiness the defendant necessarily risks.”); United States v. Thompson, 811 F.3d 944, 949
(7th Cir. 2016) (“[W]hen the informant discovers information from where he is lawfully entitled
to be, the use of a recording device to accurately capture the events does not vitiate the consent
or otherwise constitute an unlawful search.”); United States v. Miller, 720 F.2d 227, 228 (1st Cir.
1983) (“Nor, equally, when one is lawfully listening to a conversation, is there a violation merely
because, unknown to the other party, he records it.” (citing Lopez v. United States, 373 U.S. 427,
439 (1963)); cf. Matter of John Doe Trader No. One, 722 F. Supp. 419, 422 (N.D. Ill. 1989)
(“Where a tape recorder is used to record a conversation which the government agent is unable to
overhear with his naked ear, a different situation is presented. There, the tape recorder can be the
means of ‘acquiring’ the conversation, not simply the means of preserving it.” (quoting Katz v.
United States, 389 U.S. 347 (1967)).
Plaintiffs argue that these cases are distinguishable because the plaintiffs in those cases
consented to speak with the person recording or transmitting the conversation. [51, at 5; 55, at 7
(incorporating Varallo’s response).] Although it is true that these cases involved consensual
conversations with a governmental agent or informant, these cases also recognize “the longstanding constitutional principle that a person does not have a constitutional right ‘to rely on
possible flaws in [an] agent’s memory[.]’” Thompson, 811 F.3d 944, 950 (quoting Lopez v.

19

United States, 373 U.S. 427, 439 (1963)). Furthermore, “[i]t is settled that ‘once police are
lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is
lost.’” United States v. Williams, 737 F.2d 594, 606 (7th Cir. 1984) (quoting Illinois v. Andreas,
463 U.S. 765, 772 (1983)). Given that Plaintiffs concede that the State Defendants lawfully
listened to their conversation, Plaintiffs fail to allege that the State Defendants violated the
Fourth Amendment by recording their conversation.
Since it did not violate the Fourth Amendment to record the conversation, it also did not
violate the Fourth Amendment to transcribe or disseminate the recording. Jabara v. Webster,
691 F.2d 272, 279 (6th Cir. 1982) (“We do not believe that an expectation that information
lawfully in the possession of a government agency will not be disseminated, without a warrant,
to another government agency is an expectation that society is prepared to recognize as
reasonable.”); United States v. Joseph, 829 F.2d 724, 728 (9th Cir. 1987) (“Federal examination
of evidence in the state’s possession does not constitute an independent search requiring the
execution of a search warrant.”). Nor did it violate the Fourth Amendment for the MWRD
Defendants to use a tape that it lawfully acquired.
In sum, because Plaintiffs cannot establish that the State Defendants or the MWRD
Defendants violated their Fourth Amendment rights by recording a conversation that the State
Defendants lawfully overhead, Plaintiffs Fourth Amendment claim is dismissed with prejudice.
iii.

Due Process

Count III alleges that the State Defendants and the MWRD Defendants violated
Plaintiffs’ due process rights. The complaint does not indicate whether Plaintiffs are purporting
to bring a procedural due process or a substantive due process claim against Defendants.
Regardless, Plaintiffs fail to state a claim under either theory.

20

Procedural due process imposes constraints on government actions which deprive an
individual of “liberty” or “property” interests within the meaning of the Fourteenth
Amendment’s Due Process Clause. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). To
state a claim for a violation of procedural due process, Plaintiff must allege (1) a cognizable
property interest; (2) a deprivation of that property interest; and (3) a denial of due process.
Price v. Bd. of Educ. of City of Chi., 755 F.3d 605, 607 (7th Cir. 2014) (quoting Khan v. Bland,
630 F.3d 519, 527 (7th Cir. 2010)); see also Michalowicz v. Vill. of Bedford Park, 528 F.3d 530,
534 (7th Cir. 2008) (plaintiff must allege “a deprivation of a protected interest” and “insufficient
procedural protections surrounding the deprivation”).
Defendant Varallo argues that he had a property interest in his employment with the
MWRD.

[55, at 7.]

Although Varallo was an employee of the MWRD, he was still a

probationary officer on January 18, 2015. [1, at ¶16.] “To have a property interest [in public
employment] a person clearly must have more than an abstract need or desire for it. He must
have more than a unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). The
existence and dimension of a property interest is determined by looking to state law. Id.
Pursuant to the MWRD Act, the Executive Director of the MWRD may terminate a probationary
appointee “at any time during the period of probation” and any such termination “shall be final
and not subject to review.” 70 ILCS 2605/4.11. “[A]s a general rule, probationary police
officers do not have property interests in their employment.” Lewis v. Harris, 965 F. Supp.
1179, 1183 (C.D. Ill. 1997) (collecting Illinois cases); see also Redd v. Nolan, 663 F.3d 287, 296
(7th Cir. 2011) (“It is well-settled that probationary public employees do not possess a property
interested in continued employment and thus have no right to procedural due process before their

21

employment may be terminated.”); Vadala v. Civil Serv. Bd. of Metro. Sanitary Dist. of Greater
Chicago, 366 N.E.2d 558, 560-61 (Ill. App. 1977) (“[A] probationary employee may be
discharged without a hearing. To hold that plaintiff is entitled to a hearing would negate the
purpose of the probationary period.” (internal citations omitted)). Varallo has not cited any
authority or fact that would indicate that he has a property interest in his probationary
employment sufficient to overcome this general rule. Cf. Lewis v. Hayes, 505 N.E.2d 408 (Ill.
App. Ct. 1987) (concluding plaintiff had a protectable property interest in his employment as a
probationary officer because the applicable rules specifically prescribed procedures for the
removal of probationary employees). Thus, Varallo has not alleged facts sufficient to establish a
property interest in his position as a probationary officer.
Even if Varallo could establish that he had a property interest in his employment as a
probationary officer, both Plaintiffs—including Varallo—fail to allege facts establishing that the
State Defendants deprived them of any property interest in their employment. Indeed, Lawlor
does not even respond to the State Defendants’ argument that Plaintiffs fail to allege that the
State Defendants played only role in any alleged deprivation, instead requesting leave to amend.
[51, at 27.] Varallo does respond, but fails to cite any case or authority supporting his argument
that the State Defendants deprived him of his property interest in his employment even though
Plaintiffs have not alleged that the State Defendants played any role in the decision to terminate
Plaintiffs’ employment. Plaintiffs were not employed by the Illinois State Police. And Plaintiffs
do not allege that either the Illinois State Police or any of its employees played any role in the
decision to terminate Plaintiffs’ employment. Because Plaintiffs do not allege that the State
Defendants played any role in the decision to terminate Plaintiffs’ employment, Plaintiffs fail
sufficiently to allege their procedural due process claim against the State Defendants.

22

Horstmann v. St. Clair Cty., 295 F. App’x 61, 62 (7th Cir. 2008) (holding that plaintiff failed to
state a procedural due process claim because the defendants had no role in the hiring or firing
decisions at issue).
Plaintiff Varallo also argues that the MWRD Defendants denied him the opportunity for a
“name-clearing” hearing, which he argues negatively impacted his employment opportunities.
[55, at 8.] In other words, Plaintiff Varallo argues that the MWRD Defendants deprived him of
his occupational liberty. However, in order to bring a due process claim based on an alleged
deprivation of occupational liberty, a plaintiff must allege that he is no longer able to obtain a job
in his chosen profession. Abcarian v. McDonald, 617 F.3d 931, 941 (7th Cir. 2010). Although
Plaintiff Varallo argues that he “no longer can attain gainful employment in his life long career
as a police officer[,]” [55, at 8], there are no factual allegations in the complaint supporting that
assertion.
Furthermore, in order to survive a motion to dismiss an occupational liberty interest
claim, a plaintiff must allege that the information disseminated about him was false. Where, as
here, a plaintiff fails to allege that the charges leveled against him were false, he cannot maintain
an action for a deprivation of his occupational liberty. Clark v. Maurer, 824 F.2d 565, 566 (7th
Cir. 1987) (affirming dismissal of occupational liberty due process claim where the complaint
failed to allege that the charges against the plaintiff were false); Ratliff v. City of Milwaukee, 795
F.2d 612, 626 (7th Cir. 1986) (“If the employee does not challenge the truthfulness of the
stigmatizing charges, there is no purpose to the name clearing hearing.”); see also Codd v.
Velger, 429 U.S. 624, 628 (1977) (per curiam ) (due process requires hearing on discharge of
government employee “if the employer creates and disseminates a false and defamatory

23

impression about the employee in connection with his termination”). Thus, to the extent Plaintiff
Varallo seeks to bring an occupational liberty interest claim, his due process claim fails.
Turing to substantive due process, the Seventh Circuit has clarified that the right “is very
limited.” Viehweg v. City of Mount Olive, 559 F. App’x 550, 552 (7th Cir. 2014) (quoting Tun v.
Whitticker, 398 F.3d 899, 900–02 (7th Cir. 2005)). “This sort of claim is limited to violations of
fundamental rights and employment-related rights are not fundamental; an alleged wrongful
termination of public employment is not actionable as a violation of substantive due process
unless the employee also alleges the defendants violated some other constitutional right or that
state remedies were inadequate.” Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010) (internal
citations omitted); see also Belcher v. Norton, 497 F.3d 742, 753 (7th Cir. 2007); Montgomery v.
Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005). Plaintiffs have not identified any fundamental right
that Defendants allegedly violated.
Without the violation of a fundamental right, Plaintiffs must prove that public officials
abused their power, and thereby violated substantive due process, with behavior that “shocks the
conscience.” See Rochin v. California, 342 U.S. 165, 172 (1952); Viehweg, 559 Fed. App’x. at
552; Geinosky v. City of Chicago, 675 F.3d 743, 750 (7th Cir. 2012). Plaintiffs do not allege that
any defendants engaged in behavior that “shocks the conscience.”
Finally, “[w]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not
the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these
claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994). Because Plaintiffs are challenging
Defendants’ conduct under the First and Fourth Amendments, it is unnecessary for the Court to
address Plaintiffs’ claims in the terms of substantive due process. Koutnik v. Brown, 456 F.3d

24

777, 781 n.2 (7th Cir. 2006) (holding that district court properly dismissed substantive due
process claim where plaintiff challenged defendants’ conduct under the First Amendment);
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003) (“The Supreme Court has made it
clear that a substantive due process claim may not be maintained when a specific constitutional
provision (here the Fourth Amendment) protects the right allegedly violated.” (citing United
States v. Lanier, 520 U.S. 259, 272 n. 7 (1997); Graham v. Connor, 490 U.S. 386, 394 (1989))).
Thus, Plaintiffs fail to state a procedural due process or a substantive due process claim against
the State Defendants or the MWRD Defendants. Count III therefore is dismissed without
prejudice.
iv.

Equal Protection

Count IV alleges that the State Defendants and the MWRD Defendants violated
Plaintiffs’ constitutional right to equal protection. The Equal Protection Clause of the Fourteenth
Amendment protects individuals from governmental discrimination.

The typical equal

protection case involves discrimination by race, national origin, or sex; however, the Equal
Protection Clause also prohibits the singling out of a person for different treatment for no
rational reason. A claim that the government singled a plaintiff out for different treatment for no
rational reason is referred to as a class-of-one claim. Jarmuth v. City of Chicago, 43 F. Supp. 3d
889, 893 (N.D. Ill. 2014). The classic class-of-one claim is illustrated when a public official,
“with no conceivable basis for his action other than spite or some other improper motive * * *
comes down hard on a hapless private citizen.” Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir.
2005); see also Swanson v. City of Chetek, 719 F.3d 780, 784 (7th Cir. 2013).
To state an equal protection claim based on a class-of-one theory, a plaintiff must allege
that he has been “intentionally treated differently from others similarly situated and that there is

25

no rational basis for the difference in treatment.” Id. at 601-02 (quoting Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000)).

Defendants have moved to dismiss Plaintiffs’ equal

protection claim, arguing that Plaintiffs fail sufficiently to allege (1) that similarly situated
individuals were treated differently, or (2) that Defendants acted with the requisite animus—
without any rational basis. In addition, Plaintiffs must demonstrate as an essential element of
their equal protection claim that they were treated differently than someone who is “prima facie
identical” in all relevant respects. Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.
2002).
Plaintiffs fail sufficiently to allege class-of-one (or in this case, a class-of-two) equal
protection claim against the MWRD Defendants. Plaintiffs allege that they “have been treated
differently than similarly situated individuals when Plaintiffs’ private conversation was utilized
and relied upon by [the MWRD Defendants] to terminate the employment of Plaintiffs.” [1, at
¶ 125.] Plaintiffs further allege that they “have been treated differently than similarly situated
individuals when the CD with Plaintiffs’ private conversation was given to the media by” the
MWRD Defendants.

Id. at ¶ 124.

However, Plaintiffs do not allege facts beyond these

conclusory assertions establishing that any similarly situated person was treated differently by
the MWRD Defendants.
The complaint does reference a 2013 decision by Defendant Korcal not to use as
evidence a recording made by a female officer accusing a co-worker of creating a hostile work
environment in an investigation of the co-worker’s conduct because the recording was made
without the co-worker’s knowledge or permission.

[1, at ¶¶ 64-65.]

But this point of

comparison is not enough to support Plaintiffs’ class-of-one equal protection claim.

26

The Seventh Circuit has held that “even at the pleading stage a class-of-one plaintiff must
negate any reasonably conceivable state of facts that could provide a rational basis.” Jackson v.
Vill. of W. Springs, 612 F. App’x 842, 846-47 (7th Cir. 2015) (quotations omitted). As long as
the Court can “come up with a rational basis for the challenged action, that will be the end of the
matter—animus or no.” Id. A “presumption of rationality” attaches to government action
challenged in class-of-one claims. Flying J Inc. v. City of New Haven, 549 F.3d 538, 548 (7th
Cir. 2008) (affirming dismissal of class-of-one claim based on plaintiff’s failure “to overcome
the presumption of rationality that attaches to government actions in a class of one equal
protection case”).
Here, the Court can conceive of many rational bases for excluding a recording of an
employee made be a fellow employee, but not excluding a recording made by the Illinois State
Police.

For example, an employer might not want to appear to endorse an employee

surreptitiously recording a co-worker. Such a concern would not be at issue with a recording
received from the Illinois State Police. Plaintiffs therefore have failed to allege facts establishing
the necessary elements of their class-of-one claim against the MWRD Defendants.
Furthermore, the Supreme Court has explicitly held that “a ‘class-of-one’ theory of equal
protection has no place in the public employment context.” Engquist v. Oregon Dep’t of Agr.,
553 U.S. 591, 594 (2008). In so holding, the Supreme Court considered the “traditional view of
the core concern of the Equal Protection clause as a shield against arbitrary classifications.” Id.
at 598. In acting as an employer, the government’s actions “by their nature involve discretionary
decision making based on a vast array of subjective, individualized assessments.” Id. at 603.
Thus, “[t]o treat employees differently is not to classify them in a way that raises equal
protection concerns,” but rather, “it is simply to exercise the broad discretion that typically

27

characterizes the employer-employee relationship.”

Id. at 605.

To allow a class-of-one

challenge in these circumstances “would undermine the very discretion that such state officials
are entrusted to exercise.” Id. at 603. Accordingly, Count IV of the complaint is dismissed with
prejudice as to the MWRD Defendants.
Plaintiffs also fail sufficiently to allege a class-of-one equal protection claim against the
State Defendants. Plaintiffs allege that they “have been treated differently than similarly situated
individuals when the Plaintiffs’ private conversation was copied to a CD by Defendants Illinois
State Police, Gutierrez, Tencza and Stec, and a criminal investigation was commenced by the
Illinois State Police.” [1, at ¶ 122.]. This allegation is insufficient to establish that Plaintiffs
were treated differently than someone who is “prima facie identical” in all relevant respects.
Accordingly, Count IV of the complaint is dismissed without prejudice as to the State
Defendants.4
D.

Electronic Communication Privacy Act

Count V alleges that the State Defendants and the MWRD Defendants violated the
Electronic Communication Privacy Act (“Wiretap Act”).

“The Wiretap Act prohibits

intentionally intercepting an oral conversation, as well as intentionally disclosing or using the
contents of such a conversation while having reason to know that it was unlawfully intercepted.”
McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 751 (7th Cir. 2010) (internal citations omitted).
The Wiretap Act defines “intercept” to mean “the aural or other acquisition of the contents of
any wire, electronic, or oral communication through the use of any electronic, mechanical, or
other device.” 18 U.S.C. § 2510(4).

4

Although the Court is dismissing Plaintiffs’ equal protection claim against the MWRD Defendants with prejudice,
this is because of the Supreme Court’s holding that “a ‘class-of-one’ theory of equal protection has no place in the
public employment context.” Engquist, 553 U.S. at 594.

28

Plaintiffs admit that the State Defendants did not intentionally overhear the conversation
between Plaintiffs. [51, at 5; 55, at 9 (adopting and incorporating Plaintiff Lawlor’s response).]
Specifically, “Plaintiffs do not allege that overhearing the conversation was intentional as” the
State Defendants could not “help what came through on their radio.” [51, at 5 (emphasis
added).] Because the Wiretap Act does not apply to inadvertent interceptions, McCann v.
Iroquois Mem’l Hosp., 622 F.3d 745, 751 (7th Cir. 2010), the State Defendants did not violate
the Wiretap Act by unintentionally overhearing the conversation coming through on the Chicago
North radio channel.
Plaintiffs seem to argue, however, that the State Defendants violated the Wiretap Act
when they did not stop recording the Chicago North radio channel once they became aware that
they were unintentionally intercepting the conversation between Plaintiffs. The recording of a
conversation can constitute an “interception” as defined by the Wiretap Act. 18 U.S.C. §
2510(4); see also Sanders v. Robert Bosch Corp., 38 F.3d 736, 740 (4th Cir. 1994) (“The
recording of a telephone conversation alone constitutes an ‘aural * * * acquisition’ of that
conversation.” (citations omitted)). However, when a conversation is lawfully overheard, the
recording of that same conversation does not constitute an “interception” for the purposes of the
Wiretap Act. United States v. Harpel, 493 F.2d 346, 350 (10th Cir. 1974) (“We agree with
appellant that the recording of a conversation is immaterial when the overhearing is itself
legal.”); Matter of John Doe Trader No. One, 722 F. Supp. 419, 421 (N.D. Ill. 1989) (“In this
case, it seems to us that the undercover agent aurally acquired the utterances of Doe by means of
his naked ear. The recording device simply preserved what it was the agent was hearing
independently of the device.”).

29

Furthermore, Plaintiffs do not allege facts sufficient to establish that the State Defendants
intended to record Plaintiffs’ conversation. It is likely—based on the experience of the Court
and common sense—that the Illinois State Police constantly record communications occurring
on its private police radio channel. Indeed, Plaintiffs implicitly recognize this fact by arguing
that once the State Defendants “realized the transmission of the conversation was private in
nature, and not an emergency call, the recording should have stopped.” [51, at 4.] Plaintiffs do
no allege that the State Defendants began recording the Chicago North radio station with the
intent to capture Plaintiffs’ conversation. To the contrary, the allegations in the complaint
indicate that the Illinois State Police took steps to get Plaintiffs to end their oral conversation.
According to the complaint, Illinois State Police Telecommunication Specialist Angie
Vandenberg attempted to get Plaintiffs’ attention and attempted to communicate with Plaintiffs,
directing whoever was “talking about Christmas decorations” to “stop talking.” [1, at ¶ 34.]
Plaintiff further alleges that once Sgt. Rodney Collins figured out that it was MWRD personnel
that were inadvertently broadcasting over the Chicago North radio channel, he contacted “[Sgt.
Patrick] Kennedy at the MWRD and the transmission ended shortly thereafter.” Id. at ¶¶ 41-42.
Thus, Plaintiffs fail to allege facts sufficient to establish that the Illinois State Police intended to
record their conversation.
Even if the recording of Plaintiffs’ conversation violated their statutory rights under the
Wiretap Act, it was not a violation of any clearly established statutory right. In ascertaining
whether a right is clearly established, the Court considers controlling Supreme Court and
Seventh Circuit precedent. Baird v. Renbarger, 576 F.3d 340, 345 (7th Cir. 2009). There are no
controlling cases establishing that the police violate the Wiretap Act by continuing to record a
radio channel dedicated by law to police use. Indeed, other than cases discussing the general

30

purpose of the Wiretap Act, the only cases Plaintiffs cite in support of their argument that the
State Defendants violated the Wiretap Act by recording their conversation are from the Fourth
Circuit. None of the cases cited by Plaintiff address whether the police violate the Wiretap Act
by continuing to record a radio channel dedicated to police use by law when the conversation
inadvertently is intercepted. Thus, even if the Illinois State Police violated the Wiretap Act by
recording Plaintiffs’ conversation, the individual State Defendants would be entitled to qualified
immunity.
Plaintiffs Wiretap Act claim also fails because—as discussed above—Plaintiffs have not
alleged facts sufficient to establish that they had a reasonable expectation of privacy in their
communications. The Wiretap Act defines “oral communication” as “any oral communication
uttered by a person exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation.”

18 U.S.C.A. § 2510 (2).

Congress drafted the definition of “oral communication” to reflect the Supreme Court’s
standards for determining when a reasonable expectation of privacy exists. United States v.
McKinnon, 985 F.2d 525, 527 (11th Cir. 1993); United States v. Clark, 22 F.3d 799, 801 (8th
Cir. 1994). As discussed above, Plaintiffs have not alleged facts sufficient to conclude that they
had a reasonable expectation of privacy. Thus, Plaintiffs Wiretap claim fails for this reason as
well.
The Court also notes that the Illinois State Police may also be able to invoke the law
enforcement exception written into the Wiretap Act. The Wiretap Act creates a law enforcement
exception by defining “electronic, mechanical, or other device” as “any device or apparatus
which can be used to intercept a wire, oral, or electronic communication other than any
telephone or telegraph instrument, equipment or facility, or any component thereof * * * being

31

used by a provider of wire or electronic communication service in the ordinary course of its
business, or by an investigative or law enforcement officer in the ordinary course of his duties.”
18 U.S.C. § 2510(5)(a)(ii).

The Seventh Circuit has indicated—albeit in dicta—that the

incidental recording of guards’ personal conversations on a prison’s main telephone line would
be covered by the law enforcement exception if the recording device was “being used” within the
ordinary course of a prison warden’s duties to record calls from the public into a prison. Amati v.
City of Woodstock, 176 F.3d 952, 955–56 (7th Cir. 1999). Because the State Defendants have
not invoked the law enforcement exception, and because Plaintiffs’ Wiretap Act claim is
deficient in other respects, the Court declines to further address this issue at this time.
Furthermore, because the Illinois State Police did not violate the Wiretap Act by
overhearing and recording Plaintiffs’ conversation, their subsequent copying and distribution of
tapes of the conversation did not violate the Wiretap Act. Liability under 18 U.S.C. § 2511(1)(c)
and (d) is limited to cases when the defendant knows or has reason to know that the
communication was obtained unlawfully. McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 753
(7th Cir. 2010) (granting summary judgment for the defendant where there was insufficient
evidence “to base a reasonable inference that he knew the recording was illegally obtained”);
Forsyth v. Barr, 19 F.3d 1527, 1538 (5th Cir. 1994) (“Liability for disclosure or use requires
proof that it was intentional, that the information was obtained from an intercepted
communication, and that the defendant knew or should have known that the interception was
illegal.”). Here, because Plaintiffs have not alleged facts establishing that the initial interception
was unlawful, Defendants cannot be liable for any subsequent use or disclosure of the
conversation. Accordingly, Count V of the complaint is dismissed. Because Plaintiffs cannot

32

establish a reasonable expectation of privacy in a conversation that was lawfully overheard by
the Illinois State Police, Count V is dismissed with prejudice.
E.

State-Law Claims

All Defendants, including Motorola, moved to dismiss Plaintiffs’ state-law claims. With
respect to the claims brought against Motorola, neither Plaintiff responded to the arguments
raised in Motorola’s motion to dismiss. However, the Court need not rule on the arguments for
dismissing Plaintiffs’ state-law claims against any Defendant. Because the Court is dismissing
Plaintiffs’ federal claims, the Court also dismisses Plaintiffs’ state-law claims against all
Defendants without prejudice. “The usual practice in this circuit is for district courts to ‘dismiss
without prejudice state supplemental claims whenever all federal claims have been dismissed
prior to trial.’” Hagan v. Quinn, 867 F.3d 816, 830 (7th Cir. 2017) (quoting Groce v. Eli Lilly &
Co., 193 F.3d 496, 501 (7th Cir. 1999)); see also Al’s Service Center v. BP Products North
America, Inc., 599 F.3d 720, 727 (7th Cir. 2010) (“When all federal claims in a suit in federal
court are dismissed before trial, the presumption is that the court will relinquish federal
jurisdiction over any supplemental state-law claims, which the plaintiff can then prosecute in
state court.”) (citations omitted); Curry v. Advocate Bethany Hosp., 204 F. App’x 553, 558 (7th
Cir. 2006) (“The district court properly dismissed the pendant state-law tort claims without
prejudice because the federal claims were dismissed at screening.”) (citing 28 U.S.C. § 1367(c);
East-Miller v. Lake County Highway Dep’t, 421 F.3d 558, 564-65 (7th Cir. 2005)).
IV.

Conclusion
For the reasons explained above, Defendants’ motions to dismiss [32; 35; 38] are granted.

To the extent Plaintiffs’ claims are not dismissed with prejudice, Plaintiffs are given until April

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16, 2018 to file an amended complaint, if Plaintiffs believe they can cure the deficiencies
identified above. The case is set for status on April 24, 2018 at 9:00 a.m.

Dated: March 13, 2018

____________________________
Robert M. Dow, Jr.
United States District Judge

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