Banske v. City of Calumet City et al
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
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
MEMORANDUM OPINION AND ORDER
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.
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.
(Compl. ¶¶ 7-
Banske does not specify the nature or content of these
comments other than to say that they were “matters of public
Michelle Qualkinbush (“Qualkinbush”) (then and now the Mayor of
conversation, neither the assistant nor Patton directed him to
stop posting political commentary on Facebook.
(Id. ¶ 21.)
Complaint does not further describe this conversation.
Defendant Fire Chief James Galgan (“Galgan”) called Banske to
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.)
(Counts II and III).
He also sues all Defendants on the same
theory under the Illinois Constitution (Count IV).
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.
move to dismiss the Complaint in full.
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,
Put another way, the allegations must raise the
possibility of relief above the “speculative level.”
v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.
2007) (quoting Twombly, 550 U.S. at 555).
conclusory statements, do not suffice.”
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Iqbal, 556 U.S. at 678
(2009) (citing Twombly, 550 U.S. at 555).
In evaluating the
true and draws all reasonable inferences in favor of Plaintiff.
Iqbal, 556 U.S. at 678.
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
because the Deputy Fire Chief is a “policymaking” position, and
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).)
substance, and Defendants’ Motion is granted.
First Amendment Retaliation Claims
(Counts II and III)
To establish a First Amendment retaliation claim, a public
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,
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Folino, 741 F.3d 751, 755 (7th Cir. 2013)).
employee’s speech is constitutionally protected if:
(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)).
“policymaking” employees may be terminated without offending the
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.”
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.
Ultimately, whether a subject is a matter of public concern
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)).
Content is the most
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,
regarding what the matters of public concern were.”
Chicago Sch. Reform Bd. of Trustees, 197 F.3d 853, 858 (7th Cir.
1999) (affirming dismissal of free speech claims).
grievances” (id. ¶ 14).
But he does not quote from those posts
threadbare assertion that his Facebook posts were “matters of
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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
This the Court will not do.
protected speech, so it fails to state a claim upon which relief
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
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.
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.
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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Indemnification by Calumet City of
Other Defendants (Count I)
The Illinois Tort Immunity Act, 745 ILCS 10/9-102, empowers
from the municipality.
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.”
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.
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
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