Banske v. City of Calumet City et al
Filing
26
MEMORANDUM Opinion and Order. Signed by the Honorable Harry D. Leinenweber on 1/11/2018. Mailed notice. (kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD BANSKE,
Plaintiff,
v.
Case No. 17 C 5263
CITY OF CALUMET CITY, a
local unit of government;
MICHELLE QUALKINBUSH in her
individual capacity; JAMES
GALGAN in his individual
capacity; and JAMES PATTON
in his individual capacity,
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Defendants
City
of
Calumet
City,
Michelle
Qualkinbush,
James Galgan, and James Patton (“Defendants”) move [ECF No. 11]
to dismiss Plaintiff Richard Banske’s (“Banske”) Complaint [ECF
No. 1] for failure to state a claim.
For the reasons stated
herein, Defendants’ Motion to Dismiss is granted, and Banske’s
Complaint is dismissed without prejudice.
I.
BACKGROUND
Plaintiff Richard Banske began serving as a firefighter in
the Calumet City Fire Department in 1992.
In 2009, Banske was
promoted to Deputy Chief of the Fire Department.
8.)
That
According
same
to
his
year,
Banske
Complaint,
created
Banske
a
(Compl. ¶¶ 7-
Facebook
thereafter
began
account.
to
post
political
13.)
commentary
on
his
Facebook
page.
(Id.
¶¶ 12-
Banske does not specify the nature or content of these
comments other than to say that they were “matters of public
concern”
and
not
“expressions
of
private
grievances.”
(Id.
¶ 14.)
Banske
alleges
that
around
September
2016,
Defendant
Michelle Qualkinbush (“Qualkinbush”) (then and now the Mayor of
Calumet
City)
messenger
Banske,
—
caught
of
Banske’s
Qualkinbush’s
Defendant
James
Director
of
posts.
(Id.
wind
allegedly
political
assistant
Patton
Personnel,
—
Facebook
(not
a
(“Patton”),
had
a
¶¶ 19-20.)
via
phone
Banske
some
posts,
defendant
then
anonymous
the
that
here),
and
Calumet
conversation
states
and
that
City
about
these
during
that
conversation, neither the assistant nor Patton directed him to
stop posting political commentary on Facebook.
(Id. ¶ 21.)
The
Complaint does not further describe this conversation.
Finally,
Banske
avers
that
in
early
December
2016,
Defendant Fire Chief James Galgan (“Galgan”) called Banske to
his
office
[Banske’s]
and
informed
private
him
political
that
views
due
in
to
his
“concerns
Facebook
over
posts,”
Galgan and Qualkinbush wanted to terminate Banske’s employment.
(Id. ¶ 23.)
Banske was let go that same day.
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(Id. ¶¶ 24-25.)
Banske
Patton,
claiming
now
and
sues
Galgan
First
Calumet
(all
Amendment
(Counts II and III).
in
City,
as
their
retaliation
well
as
Qualkinbush,
individual
capacities),
under
42
U.S.C.
§ 1983
He also sues all Defendants on the same
theory under the Illinois Constitution (Count IV).
For reasons
that will become clear below, the Court first considers these
claims before turning to Count I, which seeks indemnification
for the individual Defendants from Calumet City.
Defendants now
move to dismiss the Complaint in full.
II.
LEGAL STANDARD
To survive a motion to dismiss, a complaint must contain
“sufficient factual matter” to “state a claim to relief that is
plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
Put another way, the allegations must 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).
of
the
elements
of
a
cause
of
action,
conclusory statements, do not suffice.”
the
Court
accepts
all
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supported
by
mere
Iqbal, 556 U.S. at 678
(2009) (citing Twombly, 550 U.S. at 555).
Complaint,
“Threadbare recitals
In evaluating the
well-pleaded
allegations
as
true and draws all reasonable inferences in favor of Plaintiff.
Iqbal, 556 U.S. at 678.
III.
DISCUSSION
Defendants move to dismiss Banske’s Complaint for failure
to state a claim under Rule 12(b)(6).
FED. R. CIV. P. 12(b)(6).
Defendants raise two central arguments:
First, Banske fails to
state a claim because his Complaint does not plead the facts
necessary
to
establish
protected
speech;
and
that
he
second,
engaged
Banske
in
fails
constitutionally
to
state
a
claim
because the Deputy Fire Chief is a “policymaking” position, and
thus
one
that
Defendants
may
fire
someone
from
simply
for
engaging in speech that could undermine the policy or political
goals of Defendants.
(Defs.’ Mem. in Supp. of Mot. to Dismiss
(“Defs.’ Mem.”) at 5, ECF No. 13 (citing Hagan v. Quinn, 867
F.3d 816, 820 (7th Cir. 2017).)
The
Court
agrees
with
Defendants’
first
argument
in
substance, and Defendants’ Motion is granted.
A.
First Amendment Retaliation Claims
(Counts II and III)
To establish a First Amendment retaliation claim, a public
employee
must
show
that
(1)
he
engaged
in
constitutionally
protected speech; (2) he suffered a deprivation because of his
employer’s action; and (3) his protected speech was a but-for
cause of the employer’s action.
Hagan v. Quinn, 867 F.3d 816,
- 4 -
822
(7th
Cir.
2017)
(citation
omitted)
(citing
Diadenko
v.
Folino, 741 F.3d 751, 755 (7th Cir. 2013)).
Under
the
so-called
Connick-Pickering
test,
employee’s speech is constitutionally protected if:
a
public
(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.
Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013) (internal
quotation marks omitted) (quoting Houskins v. Sheahan, 549 F.3d
480, 490 (7th Cir. 2008)).
Notably,
there
is
a
corollary
to
this
test
under
which
“policymaking” employees may be terminated without offending the
First
Amendment.
Under
this
Connick-Pickering
corollary,
a
policymaking employee may be discharged “when that individual
has engaged in speech on a matter of public concern in a manner
that is critical of superiors or their stated policies.”
Hagan,
867 F.3d at 826 (quoting Kiddy-Brown v. Blagojevich, 408 F.3d
346, 358 (7th Cir. 2005)).
So regardless whether Banske’s former position — Calumet
City Deputy Fire Chief — fits within the policymaker corollary,
his claim cannot survive a motion to dismiss if he has not
adequately pled facts sufficient to establish that he engaged in
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speech addressing a matter of public concern.
Iqbal, 556 U.S.
at 678.
Ultimately, whether a subject is a matter of public concern
“turns
upon
the
‘content,
form,
and
context’
of
the
speech.
Campbell v. City of Chicago, No. 16-CV-6000, 2017 WL 878730, at
*3 (N.D. Ill. Mar. 6, 2017) (citation omitted) (quoting Connick
v. Myers, 461 U.S. 138, 147-48 (1983)).
important
of
these
factors,
Spalding
v.
Content is the most
City
of
Chicago,
24
F.Supp.3d 765, 777 (N.D. Ill. 2014) (citing Kristofek v. Vill.
of Orland Hills, 712 F.3d 979, 984 (7th Cir. 2013)), but “no
factor is dispositive, and it is necessary to evaluate all the
circumstances of the speech, including what was said, where it
was said, and how it was said.”
Snyder v. Phelps, 562 U.S. 443,
454 (2011).
Here,
the
Court
is
“struck
by
the
lack
of
articulation
regarding what the matters of public concern were.”
Klug v.
Chicago Sch. Reform Bd. of Trustees, 197 F.3d 853, 858 (7th Cir.
1999) (affirming dismissal of free speech claims).
he
made
“political
“political
Facebook
commentary”
grievances” (id. ¶ 14).
nor
even
identify
the
posts”
and
not
(Compl.
Banske avers
¶ 21)
“expressions
that
of
were
private
But he does not quote from those posts
subject
of
his
commentary.
Banske’s
threadbare assertion that his Facebook posts were “matters of
- 6 -
public concern” (Compl. ¶ 14), does not help him, Iqbal, 556
U.S. at 678.
Without well pled factual allegations, the Court is left to
guess whether Banske’s at-issue speech touches upon a subject of
public concern.
fails
to
This the Court will not do.
establish
that
Banske
engaged
in
The Complaint
constitutionally
protected speech, so it fails to state a claim upon which relief
may
be
granted.
Counts
II
and
III
are
dismissed
without
prejudice.
B. Protected Speech Under the Illinois
Constitution (Count IV)
Banske purports to base Count IV on the protections for
“speech and association” found in Article I, Section 2 of the
Illinois Constitution.
However, as Defendants point out (Defs.’
Mem. at 13), the Illinois Constitution’s free speech protections
lie not within Article I, Section 2 but within Section 4.
The
Court construes Count IV as predicated upon Article I, Section 4
and analyzes it accordingly.
Banske’s failure to state a claim for retaliatory discharge
in violation of 42 U.S.C. § 1983 compels the failure of his
Article I, Section 4 claim based on the same theory.
See,
Grayer v. Welch, No. 09 C 3924, 2010 WL 3713689, at *5 (N.D.
Ill. Sept. 14, 2010).
Count IV is dismissed without prejudice.
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C.
Indemnification by Calumet City of
Other Defendants (Count I)
The Illinois Tort Immunity Act, 745 ILCS 10/9-102, empowers
tort
victims
to
seek
from the municipality.
indemnification
for
municipal
employees
Nixon v. Lake Cty. Metro. Enf’t Grp.
Agents, No. 10 C 1382, 2012 WL 74755, at *2 (N.D. Ill. Jan. 10,
2012) (citation omitted) (citing Blancas v. Village of Rosemont,
No. 07 C 4310, 2008 WL 4682217, at *1 (N.D. Ill. May 21, 2008)).
But because the Court dismisses Counts II through IV of Banske’s
Complaint, “there is nothing [left] to indemnify.”
Benedix v.
Vill. of Hanover Park, No. 10 C 3072, 2010 WL 5099997, at *3
(N.D. Ill. Dec. 8, 2010), aff’d, 677 F.3d 317 (7th Cir. 2012).
Count I is dismissed without prejudice.
IV.
CONCLUSION
For the reasons stated herein, Defendants’ 12(b)(6) Motion
to Dismiss [ECF No. 11] is granted.
Banske’s Complaint [ECF
No. 1] is dismissed without prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
1/11/18
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