Szczesny et al v. River Forest Village et al

Filing 25

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 6/7/2021: Defendants' motion to dismiss the complaint, 18 , is granted in part and denied in part. The motion is granted as to the First Amendment retaliation claim again st Scheiner, the defamation per se claims against Scheiner, O'Shea, and the Village, and the intentional-interference claim against Scheiner. These claims are dismissed without prejudice. See Runnion ex rel. Runnion v. Girl Scouts of Greater Chi . & Nw. Ind., 786 F.3d 510, 51920 (7th Cir. 2015) (an initial dismissal for failure to state a claim should be without prejudice, and a plaintiff "should be given at least one opportunity to try to amend her complaint before the entire action is dismissed"). As to the remaining claims, the motion is denied. The defendants, other than Scheiner, shall file an answer to the complaint by June 28, 2021. The parties shall file a status report with a proposal for a discovery schedule by July 6, 2021. [For further detail see attached order.] Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL J. SZCZESNY,
Plaintiff,

No. 20 CV 5661

v.
VILLAGE OF RIVER FOREST, et al.

Judge Manish S. Shah

Defendants.
MEMORANDUM OPINION AND ORDER
Daniel Szczesny was a Village of River Forest police officer and the president
of the local police union. Near the end of his tenure in both roles, the Village added a
new squad car to its fleet. Szczesny and other officers had problems with the car and
complained within the police department. Dissatisfied with the response, Szczesny
and the union board wrote a letter to the chief of police expressing concerns about the
car’s risks to officer and community safety. Szczesny claims that he faced retaliation
for this letter. He brings First Amendment retaliation claims under § 1983 against
the Village, Police Chief James O’Shea, Sergeants Michael Swierczynski, Martin
Grill, and Justin Labriola, and Human Resources Director Lisa Scheiner. He also
brings claims against the Village, O’Shea, and Scheiner for defamation per se and
intentional interference with a prospective economic advantage under Illinois law,
and against the Village under the Illinois Personnel Record Review Act, 820 ILCS
40/1 et seq. Defendants move to dismiss all claims under Federal Rule of Civil
Procedure 12(b)(6). The motion is granted in part and denied in part.

I.

Legal Standards
A complaint must contain a short and plain statement that plausibly suggests

a right to relief. Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege facts that “raise
a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). I accept all factual allegations as true and draw all reasonable
inferences in Szczesny’s favor, but I disregard legal conclusions or “threadbare
recitals” supported by only “conclusory statements.” Iqbal, 556 U.S. at 678.
II.

Facts
Szczesny became a Village of River Forest police officer in 2013. [1] ¶ 16. 1

About five years later, Szczesny became the president of the River Forest branch of
the Fraternal Order of Police. Id. ¶ 26. As union president, Szczesny advocated for
union members on assignments and pay, and raised issues about the department’s
administration, policies, and procedures. Id. ¶¶ 30, 34.
In June 2019, Sergeant Grill sent a department-wide email advising officers of
a newly acquired squad car. Id. ¶ 40. The first time Szczesny used it, he was unable
to get the car to shift into drive when trying to pull out of a parallel-parking space
behind the police station; the second time, Szczesny was unable to shift into drive and
respond to an in-progress police call for service. Id. ¶¶ 42–43. The culprit, Szczesny
concluded, was the new vehicle’s “Auto Park” software, which “effectively disabled

Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings. Facts are taken from the
complaint, [1].
1

2

the vehicle, preventing the transmission from engaging and stopping the vehicle from
being shifted into drive.” Id. ¶¶ 44–45.
Szczesny sent an email to the department detailing the problems with the Auto
Park feature and explaining potential problems that the program might pose for
officers when responding to in progress calls, assisting other officers in distress, or
being able to quickly maneuver the vehicle in a potential ambush attack; Szczesny
recommended that the department take the car out of service until the problems could
be addressed. Id. ¶¶ 46–47; [18-2] at 1. Sergeant Grill responded to the email and
explained the purpose of the program and its value, but he did not address the officer
safety concerns Szczesny raised, and the vehicle remained in service. [1] ¶¶ 49–51.
Thirteen other officers came to Szczesny with similar safety concerns about the
vehicle. Id. ¶ 52. The officers “expressed alarm that the Village would not take the
vehicle out of service when its performance was inconsistent and a represented a
danger to public and officer safety.” Id.
After weeks of back-and-forth with department management over the vehicle’s
problems, see id. ¶¶ 46–49, 53–58, 68, Szczesny and the union’s executive board
worked on a letter to Chief O’Shea “to document the concerns of union members
regarding the Department and Village’s lack of concern for public and officer safety.”
Id. ¶ 70. The final letter “expressed the union’s concern with the way in which the
situation was handled; mainly ordering officers to use a vehicle that posed a safety
risk to themselves and the public.” Id. ¶ 78. The union submitted the letter, backed
by the union’s board and printed on FOP letterhead, to O’Shea. Id. ¶ 75.

3

The next day, Grill posted a five-page response on the union cork board,
claiming that O’Shea and the administration had focused on the safety of officers
from the moment the officers raised issues about the vehicle. Id. ¶ 79. Grill’s response
also ridiculed officer complaints, downplayed the issue, and personally attacked the
union’s leadership. Id. ¶ 80. The day after Grill posted the administration’s response,
the union posted a copy of its letter to O’Shea on the cork board. Id. ¶ 82.
Szczesny alleges that he was retaliated against after the union sent the letter
to O’Shea. Sergeant Labriola, for example, falsely accused Szczesny of filing an
inaccurate report in an investigation. Id. ¶ 86. Over the next few days, Szczesny
received a hostile email from Labriola, and he accused Szczesny of putting false
information into a police report. Id. ¶¶ 87–88. O’Shea, for his part, sent an email to
the entire union executive board demanding a retraction of the letter and warning:
“You, as the executive board members of the board and authors of the letter, will have
until Monday at 5pm to retract your letter, apologize, and ask appropriately for a
meeting with the vehicle officer and Chief of Police.” Id. ¶ 88. O’Shea met with the
union’s labor representative and issued the same demand for a retraction, this time
backed by a threat: without a retraction, “internal investigations into the union board
will be initiated,” and “Szczesny was going to be investigated for suspicion of lying in
the union letter and in police reports, and that Szczesny should quit the Department.”
Id. ¶¶ 93, 97. O’Shea also threatened to report Szczesny to the Cook County State’s
Attorney’s Office, the law school Szczesny was attending, the Law Enforcement
Training and Standards Board, and the Illinois Bar Association for being untruthful.

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Id. ¶ 95. O’Shea told the representative “that he was not certain if Szczesny would
even be able to become an attorney unless the union retracted the letter and Szczesny
quit.” Id. If Szczesny resigned, however, O’Shea said other members of the union
board would be spared further discipline. Id. ¶¶ 95–96.
On several occasions, Sergeant Swierczynski and Chief O’Shea pressed
Szczesny to reveal to them the names of the officers who anonymously complained
about the vehicle. Id. ¶ 92. When Szczesny refused and invoked the employee-union
representative privilege, Swierczynski responded “in a threatening and retaliatory
manner,” accused Szczesny of lying in response to his inquires, and concluded that
“there will be no more emails/memos between you and me on these matters. I will be
reviewing your responses and other available information … [and] making
recommendations to the Chief of Police.” Id. ¶ 94. Several sergeants, including
Swierczynski, Labriola, and Grill, also publicly posted a letter personally attacking
the union board and singling out Szczesny by name. Id. ¶ 100. By mid-September (a
few weeks after Szczesny and the union’s letter about the new squad car), O’Shea
informed the union representative that investigations would be moving forward
against Szczesny and the board, and the Chief continued to insist on the retraction of
the letter and Szczesny’s resignation. Id. ¶¶ 101–07. On October 1, 2019, after
months of such threats, Szczesny resigned from the department. Id. ¶ 110.
The week after he resigned, Szczesny requested his personnel file. Id. ¶ 113.
Lisa Scheiner, the Village’s Assistant Administrator and Human Resources Director,
provided Szczesny an accounting of his final payout, an offer to provide a full and

5

accurate accounting of his belongings, and acknowledged his request for his file. Id.
¶ 114. Szczesny did not receive his personnel file until late October, three weeks after
he submitted his request. Id. ¶ 116. The file included an October 2, 2019 memo from
O’Shea to Scheiner that made false allegations against Szczesny; it falsely stated that
Szczesny had been the subject of three internal investigations since August 2019, and
that he had been placed on administrative leave on October 2—the day after his
resignation had taken effect. Id. ¶¶ 117–19. Szczesny asked the Village to remove the
false documents, but it did not do so until December. Id. ¶¶ 130–32. When Szczesny
received an updated copy his file, he believed that it included documents that violated
the Illinois Personnel Record Review Act and were either false or cherry-picked to
make him look bad. Id. ¶¶ 148–52. Szczesny submitted a rebuttal and supplemental
documents to correct the record in February 2020, but the Village did not provide him
with a corrected copy of the file until June. Id. ¶¶ 153, 157.
By then, Szczesny had been disqualified or otherwise passed up for jobs with
three other police departments, including Crystal Lake and Oak Brook. Id. ¶ 158. As
part of Crystal Lake’s background-investigation process, a representative met with
O’Shea, who falsely told the representative that Szczesny had been the subject of
three internal investigations, “did not make good” on repaying officers who had
worked for him, and lied in a police report. Id. ¶¶ 124–26, 128–29. O’Shea also falsely
said that the Cook County State’s Attorney’s Office was dropping all of Szczesny’s
active cases. Id. ¶ 127. Crystal Lake later informed Szczesny that he was no longer
being considered for a job based on the information the Village provided. Id. ¶ 134.

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Later, HR Director Scheiner met with Oak Brook’s investigator and showed
him false documents pertaining to the three alleged investigations into Szczesny.
¶¶ 139–43. Although the remainder of the Oak Brook investigator’s report was
positive, he listed these allegations as “integrity violations,” “lying in his official
capacity,” “unreasonable use of discretion,” and failure to obey orders. Id. ¶¶ 145–46.
The Oak Brook Police Department notified Szczesny that he had been disqualified
from the hiring process because he failed “to pass the character and background
requirement of the testing process.” Id. ¶ 147.
Szczesny alleges that defendants’ actions reflect a Village policy, custom, or
pattern of targeting union board members with investigations and harsher discipline
by sergeants, the department, and the Village administration. Id. ¶¶ 159, 178.
Szczesny asserts that the defendants violated his First Amendment rights when they
retaliated against him. Id. ¶¶ 173, 177. He brings (1) First Amendment retaliation
claims against all defendants under § 1983; (2) state-law claims for defamation per
se and intentional interference with a prospective economic advantage against the
Village, O’Shea, and Scheiner; and (3) a claim under the Illinois Personnel Record
Review Act against the Village.
III.

Analysis
A.

First Amendment Retaliation

To state a First Amendment retaliation claim, a public employee “must first
establish that his speech was constitutionally protected.” Lett v. City of Chicago, 946
F.3d 398, 400 (7th Cir. 2020). The First Amendment does not protect run-of-the-mill

7

employee grievances, but a public employee maintains First Amendment rights “in
certain circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). A public employee must therefore
allege that “(1) he made the speech as a private citizen, [and] (2) the speech addressed
a matter of public concern.” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013)
(citing Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008)). Defendants argue
that Szczesny’s First Amendment retaliation claims fail because he spoke as an
employee regarding a private interest, not as a private citizen on a public concern.
1.

Private Citizen

Szczesny has sufficiently alleged that he spoke as a private citizen. If a public
employee speaks “pursuant to [his] official duties,” then he is speaking as an
employee and not a private citizen, and his speech is not constitutionally protected.
Garcetti, 547 U.S. at 421. The question is “whether the speech ‘owes its existence to
a public employee’s professional responsibilities.’” Lett, 946 F.3d at 400 (quoting
Garcetti, 547 U.S. at 421). But if “the public employee is speaking in his capacity as
a union representative, [then] he is speaking as a citizen.” Graber v. Clarke, 763 F.3d
888, 895 (7th Cir. 2014). Here, the complaint plausibly alleges that the union’s August
letter to O’Shea—co-authored by Szczesny in his capacity as the union’s president
and on union letterhead—was private-citizen speech outside of Szczesny’s official
duties. See Olendzki v. Rossi, 765 F.3d 742, 747 (7th Cir. 2014) (“Our circuit has
consistently held that when a public employee speaks in his capacity as a union
official, his speech is not within the purview of his ‘official duties.’”). Defendants say

8

that the union’s August letter is “without consequence” because Szczesny initially
reported the vehicle’s problems in his July email “as a patrol officer and not through
the channels of the police union.” [18] at 5. But whether Szczesny initially complained
in his capacity as an employee or not, the complaint alleges facts that reasonably
suggest Szczesny faced retaliation because of his speech as the union’s president. I
draw that inference in his favor at this stage.
2.

Public Concern

Even when speaking as a private citizen, however, an employee’s speech is
protected only if it addresses a matter of public concern. A public concern is something
that is of “legitimate news interest,” or addresses “a subject of general interest and of
value and concern to the public at the time of publication.” Kubiak v. City of Chicago,
810 F.3d 476, 482 (7th Cir. 2016) (quoting Meade v. Moraine Valley Cmty. Coll., 770
F.3d 680, 684 (7th Cir. 2014)). “Whether an employee’s speech addresses a matter of
public concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147–48
(1983). Content is the most important factor. See Kubiak, 810 F.3d at 483. Motive
may be relevant, but it is not dispositive, and even if the speaker has a personal
motive, “if an objective of the speech was also to bring about change with public
ramifications extending beyond the personal, then the speech does involve a matter
of public concern.” Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 986 (7th Cir. 2013);
see also Adams v. Bd. of Educ. of Harvey Sch. Dist. 152, 968 F.3d 713, 716 (7th Cir.
2020) (a mixed motive does not render speech unprotected). In the end, courts

9

consider the three Connick factors to determine “the point of the speech in question:
was it the employee’s point to bring wrongdoing to light? Or to raise other issues of
public concern, because they are of public concern? Or was the point to further some
purely private interest?” Kristofek, 712 F.3d at 985 (quoting Linhart v. Glatfelter, 771
F.2d 1004, 1010 (7th Cir. 1985)); see also Adams, 968 F.3d at 716 (the question is
“whether the speech concerns public affairs as Connick understands the
public/private distinction”).
Generally, a police officer’s “speech that addresses questions of public safety
and police protection” involves “matters of vital public concern.” See Campbell v.
Towse, 99 F.3d 820, 828 (7th Cir. 1996); Auriemma v. Rice, 910 F.2d 1449, 1460 (7th
Cir. 1990) (“It would be difficult to find a matter of greater public concern in a large
metropolitan area than police protection and public safety.”). An officer’s speech is of
public concern when it addresses “the manner in which the police would serve the
public,” but not when speech merely addresses inside matters pertaining to work
conditions, such as a change in equipment allocation. See Kuchenreuther v. City of
Milwaukee, 221 F.3d 967, 975 (7th Cir. 2000).
The union letter here frames the problems with the vehicle as “a significant
issue of officer and public safety.” [21-1] at 1. 2 The union board detailed problems that
the car’s “Auto Park” software caused not just for Szczesny, but for multiple other
officers as well. Id. at 1–4; [1] ¶ 52. The letter expressed fear for the officers’ ability

Szczesny attaches the letter to his response brief, see [21-1], which I consider at this stage
because it is “critical to the complaint and referred to in it.” See Geinosky v. City of Chicago,
675 F.3d 743, 745 n. 1 (7th Cir. 2012); [1] ¶ 78.
2

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to respond to in-progress calls and claimed, for example, that one officer was unable
to effectively respond “to an in-progress-15-person fight” because the “Auto Park”
system locked the car in park. [21-1] at 3–4. Chief O’Shea brushed aside these safety
concerns and, according to the letter, ordered officers to continue using the vehicle.
Id. at 3. Szczesny and the union board concluded: “We hope that in the future, a more
appropriate response will be issued when officer safety concerns are presented to the
Administration, and the Administration will work with, and not ridicule the ‘false
expertise’ of its officers.” Id. at 7.
Reading the complaint in a light most favorable to Szczesny, he has plausibly
alleged that the union letter addressed a matter of public concern. The letter directly
tied the vehicle’s problems—and the administration’s indifference to them—to
broader officer and public safety concerns. The letter is not just Szczesny’s personal
grievance written on union letterhead. It is an effort by Szczesny and the union board
to alert the department to an issue of public and officer safety.
Defendants arguments to the contrary are unpersuasive. They say the form
(internal communications) and context (ongoing dialogue between officers and
command about the vehicle) suggest that this was a private work issue. [18] at 7. As
for content, defendants hang their hat on Kuchenreuther v. City of Milwaukee, 221
F.3d 967 (7th Cir. 2000), which held, in relevant part, that an officer’s speech
criticizing a police chief’s policy of allowing officers to carry only one set of handcuffs
was not a matter of public concern. Id. at 974–75. Defendants read Kuchenreuther to

11

say that “complaints regarding department equipment” are never matters of public
concern. [24] at 5.
But Kuchenreuther is not so broad, and other cases acknowledge that speech
about police resource allocation can be protected. See Campbell, 99 F.3d at 828
(“Issues involving the proper allocation of police patrols and other departmental
resources to various communities in a city are questions of serious public import.”).
The court in Kuchenreuther concluded that “[a]fter reviewing the record in this case,
we are convinced that Kuchenreuther did not address the manner in which the police
would serve the public.” Kuchenreuther, 221 F.3d at 975. Here, by contrast, Szczesny
spoke on matters of safety and how the department would serve the public (through,
among other things, safely and effectively responding to in-progress calls)—or so one
can infer at this stage of the case. Whether Szczesny’s complaint about the car’s
software and its corresponding effect on police performance is more like
Kuchenreuther’s problem with having one set of handcuffs or Campbell’s concern over
the efficacy of a patrol program requires factual development. And while the letter
was an internal document, First Amendment protection is not lost to “the public
employee who arranges to communicate privately with his employer rather than to
spread his views before the public.” Givhan v. W. Line Consol. Sch. Dist., 439 U.S.
410, 415–16 (1979). Szczesny has sufficiently alleged that he was speaking on a
matter of public concern. Cf. Kristofek, 712 F.3d at 983 (liberal construction of
complaint’s allegations to find public concern should not “be read to prejudge whether
the evidence will show that [plaintiff’s] claims … are meritorious”).

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3.

Retaliation Claims Against Swierczynski and Scheiner

In the alternative, defendants argue that even if Szczesny’s speech is entitled
to constitutional protection, he has failed to allege that defendants Scheiner and
Swierczynski participated in the retaliation against him. While Szczesny engaged in
constitutionally protected speech, he must also show that each defendant, as a public
official, “engaged in adverse conduct against him” and was “motivated, at least in
part, by his protected speech.” Bivens v. Trent, 591 F.3d 555, 559 (7th Cir. 2010). To
constitute adverse conduct, a defendant’s actions must “likely deter a person of
ordinary firmness from continuing to engage in protected activity.” Surita v. Hyde,
665 F.3d 860, 878 (7th Cir. 2011). Whether retaliatory conduct reaches this threshold
is generally a question of fact. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
Yet “when the asserted injury is truly minimal,” a court “can resolve the issue as a
matter of law.” Douglas v. Reeves, 964 F.3d 643, 647 (7th Cir. 2020).
The complaint sufficiently puts Swierczynski on notice of Szczesny’s First
Amendment retaliation claim. The complaint alleges that Swierczynski “pressed
[Szczesny] to reveal … the names of officers who complained about the vehicle” and
when Szczesny rebuffed those efforts, Swierczynski responded in a “threatening and
retaliatory manner.” [1] ¶¶ 92, 94. And, along with other sergeants, Swierczynski
publicly posted a letter attacking Szczesny by name. [1] ¶ 100. It is reasonable to infer
that Swierczynski’s communications were in response to the union’s letter: Szczesny
raised the anonymous complaints in the letter, and Swierczynski then pressed
Szczesny to name names; Swierczynski’s hostility to Szczesny traces to the union

13

letter. His conduct—a sergeant pressing an officer to reveal his sources, threatening
to accuse the officer of falsehoods to the chief, and cutting off discussion—plausibly
suggests the kind of conduct that would deter a reasonable person from holding or
expressing his protected views. See Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d
527, 534 (7th Cir. 2006) (campaign of minor harassment can be sufficient to deter the
exercise of free speech); DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir.
1995) (petty harassment that includes minor retaliation and false accusations can be
actionable under the First Amendment); see also Pieczynski v. Duffy, 875 F.2d 1331,
1333 (7th Cir. 1989) (“Harassment of a public employee for his political beliefs
violates the First Amendment unless the harassment is so trivial that a person of
ordinary firmness would not be deterred from holding or expressing those beliefs.”).
True, Szczesny does not provide many details of his communications with
Swierczynski, but that is not required at this stage. When discovery reveals these
communications in more detail, Szczesny will have to prove—at summary judgment
or trial—that Swierczynski’s conduct would deter a person of ordinary firmness from
speaking and that it was motivated by the union letter (not routine employment
grievances). But the complaint puts Swierczynski on sufficient notice of the claims
against him to survive dismissal.
The same cannot be said for Szczesny’s retaliation claim against Scheiner. The
complaint does not raise a reasonable inference that Scheiner had any knowledge of
the union letter or took any adverse action due to Szczesny’s protected speech.
Szczesny argues that Scheiner provided false information to prospective employers,

14

and that because Scheiner is employed as an Assistant Village Administrator, his
allegations that the Village Administration engaged in retaliatory conduct also apply
to her. [21] at 14–15. But conclusory allegations aside, the complaint does not
plausibly allege that Scheiner knew about the union letter or that the information in
the file was false, let alone that after Szczesny had left the department, she
intentionally provided the false information to retaliate against him because of the
letter. The allegations against Scheiner are too attenuated from the speech at issue—
too speculative—to raise a reasonable inference that her actions violated Szczesny’s
First Amendment rights.
In sum, the complaint sufficiently alleges that Szczesny’s speech was entitled
to constitutional protection, but it does not plausibly allege that Scheiner participated
in any retaliatory conduct. Count I is dismissed with respect to Scheiner, but it
survives against all other defendants.
B.

State Tort Claims

Szczesny next alleges that the Village, O’Shea, and Scheiner are liable for
defamation per se and intentional interference with a prospective economic
advantage.
1.

Defamation Per Se

To state a claim for defamation, a plaintiff must show that “the defendant
made a false statement about the plaintiff, the defendant made an unprivileged
publication of that statement to a third party, and the publication caused damages.”
Hadley v. Doe, 2015 IL 118000, ¶ 30. “A statement is defamatory per se if its harm is

15

obvious and apparent on its face.” Id. Under Illinois law, statements that impute “an
inability to perform or want of integrity in performing employment duties” or “a lack
of ability or that otherwise prejudice a person in his or her profession” are defamatory
per se. Tuite v. Corbitt, 224 Ill.2d 490, 501 (2006). Here, Szczesny asserts that O’Shea
and Scheiner made intentionally false statements to third parties (Crystal Lake and
Oak Brook) 3 that imputed an inability to perform his job or a lack of integrity to
discharge his duties as an officer. [1] ¶¶ 182–188.
Defendants counter that they are immune from the defamation claim.
Immunity is an affirmative defense that the complaint need not anticipate. See Elliott
v. Thomas, 937 F.2d 338, 345 (7th Cir. 1991); see also Brownmark Films, LLC v.
Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012). A court should refrain from
granting a Rule 12(b)(6) motion on affirmative defenses unless “the allegations of the
complaint itself set forth everything necessary to satisfy the affirmative defense.”
United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005); see also Brownmark Films,
682 F.3d at 690. The complaint does so here.
Illinois law shields the Village from defamation suits. Under the state’s Tort
Immunity Act, “[a] local public entity is not liable for injury caused by any action of
its employees that is libelous or slanderous or for the provision of information.” 745

Defendants posit that any claims arising from conduct during the Oak Brook or Crystal
Lake background investigations must be dismissed because Szczesny executed releases with
those municipalities regarding any claims arising out of the investigations. [18] at 21–22.
Defendants also attach the releases to their brief supporting the motion. Unlike the union
letter, I do not consider the releases because (1) they are not central to plaintiff’s claim and
(2) release is an affirmative defense that the complaint need not anticipate. See Fed. R. Civ.
P. 8(c)(1).
3

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ILCS 10/2-107. In other words, the Act “gives public entities blanket immunity
against defamation claims.” Heckenbach v. Bloomingdale Fire Prot. Dist., No. 19-CV2877, 2020 WL 5763600, at *7 (N.D. Ill. Sept. 28, 2020); see also Horwitz v. Bd. of
Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 617 (7th Cir. 2001) (local public
entities may not be sued for defamatory remarks in Illinois). As such, the defamation
claim against the Village fails.
O’Shea and Scheiner are immune from the defamation claim too. Section 2-210
of the Tort Immunity Act provides that “[a] public employee acting in the scope of his
employment is not liable for an injury caused by his negligent misrepresentation or
the provision of information.” 745 ILCS 10/2-210. The question here, as in all
defamation cases against local employees under Illinois law, is whether O’Shea and
Scheiner “were acting within the scope of their official duties when they made the
alleged statements in question.” Horwitz, 260 F.3d at 617. If the answer is yes, then
the public employee has absolute immunity, and “even if a statement is defamatory,
under Illinois law, the defendants would have immunity for their statements made
within the scope of their authority.” Klug v. Chicago Sch. Reform Bd. of Trustees, 197
F.3d 853, 861 (7th Cir. 1999).
O’Shea and Scheiner were acting within the scope of their official duties when
they made the alleged defamatory statements. The complaint does not plausibly
suggest—and Szczesny does not argue in his brief—that O’Shea’s and Scheiner’s
statements to his prospective employers were made outside the scope of their
authority. In fact, the face of the complaint establishes the opposite—both Scheiner

17

and O’Shea were acting under Village authority “with regard to [their] acts and
conduct alleged herein.” [1] ¶¶ 7, 9.
Szczesny advances only one argument against immunity—O’Shea and
Scheiner intentionally provided false information and “Section 2-210 only immunizes
misrepresentations that are made negligently.” [21] at 17–18. The latter assertion is
incorrect. Because O’Shea’s and Scheiner’s statements were made within the scope of
their duties, they enjoy absolute immunity from defamation suits, which “cannot be
‘overcome by a showing of improper motivation or knowledge of the statement’s
falsity, including malice.’” Horwitz, 260 F.3d at 618 (quoting Klug, 197 F.3d at 861);
see also Heckenbach, 2020 WL 5763600 at *8 (if within scope of authority, even
allegations that defendants’ “‘conduct was willful, wanton, malicious, and ... made
with actual malice’ doesn’t save the day”).
Because Szczesny’s factual allegations “unambiguously establish all the
elements of” defendants’ statutory immunity defense, see Hyson USA, Inc. v. Hyson
2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016), Count II is dismissed.
2.

Intentional Interference with a Prospective Economic Advantage

A plaintiff bringing a claim for intentional interference with a prospective
economic advantage must allege: “(1) a reasonable expectancy of entering into a valid
business relationship, (2) the defendant’s knowledge of the expectancy, (3) an
intentional and unjustified interference by the defendant that induced or caused a
breach or termination of the expectancy, and (4) damage to the plaintiff resulting
from the defendant’s interference.” Anderson v. Vanden Dorpel, 172 Ill.2d 399, 406–

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07 (1996). Some forms of interference are privileged, and when that’s the case, “the
plaintiff bears the burden of proving that the defendant’s conduct was malicious.”
Delloma v. Consolidation Coal Co., 996 F.2d 168, 171 (7th Cir. 1993). In tortious
interference cases, “an employer may invoke a conditional privilege to respond to
direct inquiries by prospective employers.” Id. at 171–72. But the plaintiff can
overcome the privilege if he shows that the defendant’s conduct is malicious; that is,
“if the defendant acts ‘intentionally and without justification.’” KMK Grp., LLC v.
Helco Corp., 380 F.Supp.3d 790, 799 (N.D. Ill. 2019) (quoting Delloma, 996 F.2d at
171). Illinois law does not offer a clear answer on “whether privilege must be asserted
as an affirmative defense or whether the plaintiff must prove that no privilege
applies, but there is no need to resolve that question at the pleading stage if the
plaintiff’s ‘allegations overcome the privilege.’” KMK Grp., 380 F.Supp.3d at 799
(quoting Webb v. Frawley, 906 F.3d 569, 578 (7th Cir. 2018)).
Here, defendants contend that the intentional interference claim must be
dismissed as to all defendants “because employers are privileged with regard to
reference checks, and [Szczesny] has not sufficiently alleged any facts to overcome
that privilege.” [18] at 17. They also argue that the claim against Scheiner should be
dismissed because Szczesny has not alleged that Scheiner purposefully interfered
with an expectancy. Szczesny counters that he has adequately alleged that O’Shea
and Scheiner provided false information to Crystal Lake and Oak Brook “and
knowingly and willfully, with intent to injure [Szczesny], acted with actual malice, or
acted in reckless disregard of the truth.” [21] at 21.

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Szczesny has sufficiently alleged that O’Shea acted with actual malice. The
complaint alleges that O’Shea met with the representative from Crystal Lake and
falsely claimed that (1) Szczesny was the subject of three internal investigations
during his final months with the force, (2) Szczesny had lied in a police report, (3) the
Cook County State’s Attorney’s Office was dropping all of Szczesny’s active cases, and
(4) Szczesny “did not make good” on repaying officers who worked for him. [1] ¶¶ 124,
125, 127, 129. Szczesny has plausibly alleged that O’Shea’s series of falsehoods
impugning his character amounted to an intentional and unjustified effort to sink his
chances with a prospective employer. So the claim against O’Shea survives. 4
Count III is dismissed as to Scheiner, however, because the complaint does not
plausibly allege that she purposefully interfered with Szczesny’s job opportunities.
The complaint alleges that Scheiner met with a background investigator from Oak
Brook and showed him false documents pertaining to internal investigations into
Szczesny. Id. ¶¶ 137–143. But the complaint does not allege that Scheiner did
anything more than provide the investigator with Szczesny’s file, which happened to
contain some false information. The complaint does not allege that Scheiner knew
the file contained false documents, played any role in creating the documents, or had
any intent or reason to interfere with Szczesny’s opportunity with Oak Brook.
Accordingly, the intentional interference claim against Scheiner is dismissed. 5
The Village does not present any argument for its dismissal from the intentionalinterference claim, so it remains a defendant.

4

Defendants also ask that I strike Szczesny’s prayer for punitive damages in Counts II and
III, arguing that they are immune from punitive damages under 745 ILCS 10/2-102 and 745
ILCS 2-213. I’ve dismissed Count II against all defendants and Count III against Scheiner.
For the remaining Count III claims, the type of relief to which Szczesny may be entitled (if

5

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C.

Illinois Personnel Record Review Act

Szczesny also brings a claim against the Village under the Illinois Personnel
Record Review Act, 820 ILCS 40/1 et seq., for failing to timely provide his personnel
file. Defendants move to dismiss this claim because the complaint does not allege that
Szczesny exhausted administrative remedies with the Illinois Department of Labor.
But failure to exhaust administrative remedies is an affirmative defense that the
complaint need not anticipate. See Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002) (“Failure to exhaust administrative remedies is an affirmative defense.”); see
also Mosely, 434 F.3d at 533 (plaintiff has no obligation to allege facts negating an
affirmative defense in complaint when there is nothing on the face of complaint “that
compels a conclusion that she failed to exhaust”). The complaint does not demonstrate
failure to exhaust on its face and dismissal of the claim on that basis is unwarranted.
IV.

Conclusion
Defendants’ motion to dismiss the complaint, [18], is granted in part and

denied in part. The motion is granted as to the First Amendment retaliation claim
against Scheiner, the defamation per se claims against Scheiner, O’Shea, and the
Village, and the intentional-interference claim against Scheiner. These claims are
dismissed without prejudice. See Runnion ex rel. Runnion v. Girl Scouts of Greater
Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th Cir. 2015) (an initial dismissal for failure
to state a claim should be without prejudice, and a plaintiff “should be given at least

any) is a matter that I leave for another day. See Fed. R. Civ. P. 54(c) (every final judgment
should grant the relief to which each party is entitled, even if the party has not demanded
that relief in its pleadings).

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one opportunity to try to amend her complaint before the entire action is dismissed”).
As to the remaining claims, the motion is denied. The defendants, other than
Scheiner, shall file an answer to the complaint by June 28, 2021. The parties shall
file a status report with a proposal for a discovery schedule by July 6, 2021.
ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: June 7, 2021

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