Niebur Memorandum opinion order 2






No. 98 C 4157







 Judge George M. Marovich





Plaintiffs David R. Niebur (“Niebur”) and Phillip T. Bue

(“Bue”) (collectively referred to as “Plaintiffs”) filed this

action against Defendants Town of Cicero (the “Town”), Betty

Loren-Maltese (Loren-Maltese) individually and in her official

capacity as the President of Cicero, Merrick Scott Rayle (“Rayle”)

individually and in his official capacity as Town

Counsel, the Board of Fire, Police and Public Safety

Commissioners of the Town of Cicero (“the Police Board”),

Clarence Gross (“Gross”) individually and in his official

capacity as Chairman of the Board, Joyce Barloga (“Barloga”),

Richard Caravetta (“Caravetta”), Anthony Marzano (“Marzano”) and

Daisy Ciuffo (“Ciuffo”), individually and in their official


capacities as members of the Police Board (collectively referred

to as “Defendants”). Plaintiffs, Complaint alleges, inter alia,

that Defendants have deprived them of their rights under the

First and Fourteenth Amendments to the United States Constitution

by suspending them from their employment without due process of

law and in retaliation for their exercise of free

Defendants have presently filed various motions to dismiss

Plaintiffs I Complaint pursuant to Fed. R. Civ. P. 12 (b) (6)n1 For

the reasons set forth below, Defendants’ motions to dismiss are

denied in part and granted in part.


Niebur and Bue are currently employed by the Cicero Police

Department in Cicero, Illinois. Niebur is the Superintendent of Police

for Cicero and Bue is the Deputy Superintendent of Police for Cicero.

Both men had over 25 years of law enforcement experience — 55 years

between them — before coming to Cicero in 1998.


1The parties have collectively filed several hundred pages
of materials with the Court. They have asked that the Court
consider the pending motions to dismiss on an expedited basis
which the Court has agreed to do. Nevertheless, given the
numerous grounds raised by each Defendant and the sheer volume of
materials before the Court, the Court has in some instances
limited its discussion to those arguments raised by Defendants
that were potentially dispositive.


Niebur was actually hired as Superintendent of Police

by Cicero on December 9,1997, after a year-long national search

Niebur was brought in by Cicero and its President, Loren-Maltese,

to “reform” the Cicero Police Department and restore its

professionalism and integrity which had previously come under

fire. Niebur and the Town entered into a written employment

agreement effective January 1, 1998, and ending on December 31,

2001. Pursuant to the agreement, Niebur was given the principal

charge of planning, organizing, directing, staffing and

coordinating police operations and, in general, overseeing the

performance of the Police Department. Niebur was formally

appointed by Loren-Maltese on December 29, 1997, and the

appointment was unanimously confirmed by the Town Board of

Trustees that same night.


On March 1, 1998, Rue was hired by the Town and Loren-

Maltese as the Town’s Deputy Superintendent of Police. Bue

entered into an employment agreement with the Town effective

March 10, 1998, and ending on March 1, 2001. Bue’s employment

agreement was substantially similar to Niebur’s and he was given

the charge of assisting Niebur in his responsibilities. Like

Niebur, Bue was formally appointed by Loren-Maltese and

unanimously confirmed by the Town Board of Trustees.


Sometime in 1996, the Federal Bureau of Investigation

(“FBI”) and the United States Attorney’s office began

investigating Town officials for official misconduct and

corruption. According to Plaintiffs, Loren-Maltese is one of the

targets of the investigation. In early December1997, Niebur was

approached on several occasions by FBI agents who asked him to

cooperate with various aspects of their investigation. Niebur,

and subsequently Bue, agreed to assist the FBI.


In February 1998, Town residents began complaining to Niebur

that their cars were being towed for no apparent reason and they

were being forced to pay hundreds of dollars to reclaim the towed

vehicles. In response, Niebur and later Bue began

investigating the Town’s towing practices. In the course of

their investigation, Niebur asked the City Clerk for a copy of

the Town’s towing contract with Ram Recovery, Inc. (“Ram”), which

had been the Town’s exclusive towing operator since April of

1997. Niebur was informed that the Clerk did not have a copy of

the contract, and that he would have to see Sam Jelic (“Jelic”),

the Town’s Superintendent of Public Works. When Niebur met with

Jelic, however, he refused to give Niebur a copy of the contract.

Instead, Jelic told Niebur he would have to see Loren-Maltese

about the contract.


After doing further investigation on Ram, Niebur and Bue

Learned that Jelic’s daughter worked for Ram. They were also

informed that Jelic himself and Gross, Chairman of the Police

Board, had financial interests in Ram. Niebur and Bue discovered

that the Cicero Police Department had kept no records during

Ram’s tenure documenting how the vehicles towed by Ram were being

reclaimed by their owners, sold at auctions, or otherwise

disposed of. These records were missing despite the fact that

Illinois law required the Police Department to maintain reports

of these transactions for a period of one year 625 ILCS c;/4-210

(West 1993).


Niebur met with Loren-Maltese and informed her that the

Police Department was required to keep records documenting the

disposition of vehicles towed by Ram, but that those records were

missing. Loren-Maltese allegedly assured Niebur that she would

get these records for him. Niebur was also allegedly assured by

Jelic and Ram’s owner, Alan Imyak (“Imyak”), that they would get

him the missing records. However, none of these persons ever

produced the missing records to Niebur.


Sometime in early 1998, Niebur and Bue claim that they were

“tipped off” by FBI agents that someone at the Cicero Police

Department was deleting stolen cars from the Illinois State



Police computer registry of stolen vehicles. The agents also told

Niebur and Sue that they suspected that Ram was selling stolen

vehicles. During March of 1998, Niebur and Sue learned additional

details which caused them to be suspicious of Ram and its connections

to Loren-Maltese and the Town Board of Trustees.


Then, on April 21, 1998, Sue walked in on Imyak, Ram’s

owner, rummaging through tow sheets in the Records Bureau of the

Cicero Police Department. These tow sheets documented vehicles

towed by Ram. Upon being “discovered” by Sue, Imyak threw down a

stack of records and “ran” directly to Loren-Maltese’s office.

Within 15 minutes, Sue was called up to Loren-Maltese’s office

and claims that he was “reprimanded” by Jelic and Loren-Maltese’s

executive assistant, Pat Deganutti (“Deganutti”), for interfering

in the Town’s towing policies. Deganutti allegedly told Bue that

towing was an executive function that was handled by the Town

President’s office and not the Police Department.


At this point, Niebur and Bue claim that they were worried that

Imyak had been tampering with the tow records, and they

Suspected misconduct and corruption between Ram and Town

officials, including Loren-Maltese. Accordingly, Niebur and Bue

notified the Illinois State Police and the FBI. Based upon

Niebur’s request, the Illinois State Police removed several boxes


of tow sheet records on April 22, 1998, and started an independent

investigation. Although the originals were given to the Illinois State

Police. Niebur and Bue claim that duplicate copies of the tow sheets

were kept and maintained in the Cicero Police Department.


Also on April 22, 1998, Rayle, the Town Counsel, came by the

Police Department to inspect the duplicate copies of the tow records

given to the Illinois State Police. Niebur and Bue met with Rayle and

discussed their suspicions regarding Ram and Town officials. Niebur and

Bue informed Rayle that they had been contacted by the FBI, which

suspected that Ram was recovering and selling stolen vehicles and that

Town officials were involved. Finally, they told Rayle that they

suspected that Jelic and Gross had financial interests in Ram. Rayle

allegedly responded to Niebur and Bue that he would “smooth this over

with Betty [Loren-Maltese].”


The next day, April 23, 1998, Niebur and Bue were served

With subpoenas to appear before a federal grand jury

investigating official misconduct and corruption in the Cicero

government, including matters related to Ram’s towing operations.

Niebur and Bue contend that FBI agents advised them not to talk


to Rayle, or any other Town official, about Ram or the towing



Later, that same day, Loren-Maltese issued a memorandum to

Niebur and Bue acknowledging that they had both “created

questions concerning the implementation” of the Ram contract, and

had “made allegations of wrongdoing, misconduct, or breach of

public trust attributed to Town employees concerning the

execution “of the Ram contract. (Cmpl. at �1 66.) Loren-Maltese

allegedly stated that, pursuant to Cicero ordinance Number 27-97,

she had designated Rayle to investigate Niebur and Bue’s

“allegations of wrongdoing, misconduct, or breach of public

trust” relating to the Ram contract. (Id.) Loren-Maltese “

directed and authorized (Niebur and Bue] to cooperate with

(Rayle] in connection with the investigation.” (Id.)


Ordinance Number 27-97, passed by the Town’s Board of

Trustees and approved by Loren-Maltese on April 7, 1997,

allegedly gave Loren-Maltese unfettered power and authority to

create a Special Investigation Division of her office answering

only to her. Niebur and Bue contend that the real purpose of the

Special Investigation Division in this case was to “white wash

wrongdoing involving Ram and Town officials.” (Id. At � 67.)



Notwithstanding the creation of the Special Investigation

Division, on April 24, 1998, Niebur and Bue informed Rayle that they

would not answer any questions about Ram or the records seized by the

Illinois State Police because they were under a grand jury subpoena and

because the United States Attorney’s Office, through -the FBI, had

advised them not to speak with Rayle or other Town officials.


After learning that Niebur and Bue were investigating Ram

and the Town’s towing practices in cooperation with federal and state

authorities, “Loren-Maltese in conspiracy with Rayle and others, and as

retribution for Niebur and Bue’s attempts to expose town corruption,

suspended Niebur and Bue with pay on April 24, 1998.” (Id. at 1 69.)

Niebur and Bue were ordered by Loren-Maltese to surrender their

uniforms, identification, weapons and automobiles.- Loren – Maltese –

informed the officers that they could no longer hold themselves out

as affiliated in any respect with the Cicero Police Department.


On May 4, 1998 and May 12, 1998, Rayle filed dismissal

charges with the Cicero Police Board against Niebur and Bue

respectively. These charges accused the officers of failing to

cooperate with Loren-Maltese’s investigation of Ram towing. The

Police Board determined — falsely according to Plaintiffs –


that probable cause existed for the charges and suspended Niebur

and Bue without pay pending a hearing on the charges. Niebur and

Bue contend that the Police Board is a “sham” and that they were

not given a meaningful opportunity to respond to the charges or

clear their names prior to being suspended.2


On May 20, 1998; Rayle submitted a written report to Loren-

Maltese in which he concluded that there was no criminal or civil

wrongdoing involved in the awarding or implementation of the

Town’s towing contract with Ram. Rayle also concluded that there

was no evidence that Jelic or Gross committed or were aware of

any wrongdoing by or involving Ram. Niebur and Bue contend that

these conclusions were false and Rayle’s report was an attempt to

“whitewash” his investigation of Ram and Town officials. (Id.

at � 75.)


On July 8, 1998, Niebur and Bue filed their Complaint with this

Court. Niebur and Bue’s Complaint asserts that they were dismissed in

retaliation for cooperating with state and federal law enforcement

authorities in an investigation of official misconduct and corruption

in the Cicero government.


2 At the present time, Bue has been reinstated by the Town with
back pay. However, Niebur remains suspended without pay and dismissal
charges against him are currently pending before the Police Board.



Specifically, Niebur and Bue claim that: (1) they were retaliated

against for exercising their rights under the First Amendment

(Count 1);(2) as applied, ordinance Number 27-97 — authorizing

the Special Investigation Division — interfered with and

infringed upon their First Amendment rights (Count 11); (3) they

were deprived of property interests in their jobs in violation of

due process (Count 111); (4)they were deprived of liberty

interests in their reputations in violation of due process (Count

IV); (5) Defendants conspired to deprive them of their

constitutional rights (Count V); (6) Defendants breached

employment contracts with them (Counts VI and VII); (7) their

employment was suspended in violation of Illinois law (Count

VIII); (8) they suffered intentional infliction of emotional

distress (Count IX);and (9) they are entitled to indemnification

under Illinois law (Count X).



I. Standards For a Motion to Dismiss

 When considering a motion to dismiss, the Court examines the

sufficiency of the complaint, not the merits of the lawsuit. See Triad

Assoc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). “(T]he

issue is not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence



that supports the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)

. A motion to dismiss will be granted only it the finds that the

plaintiff can prove no set of facts that would entitle him to relief.

See Venture Assoc. Corp. V. Zenith Data Sys. Corp. , 987 F. 2d 429, 432

(7th Cir. 1993) ; Conley v. Gibson, 355 U.S. 41, 45-46 (1957). On a

motion to dismiss, the Court draws all inferences and resolves all

ambiguities in the plaintiffs’ favor and assumes that all well-pleaded

facts are true. See Dimmig v. Wahl, 983 F.2d 86, 86 (7th Cir. 1993).


The Supreme Court has made very clear that there is no heightened

pleading requirement for civil rights actions. Leatherman v. Tarrant

Co. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168

(1993). “Rather, as in all civil litigation, the plaintiff is charged

with the responsibility of setting forth, as mandated by Rule 8(a) of

the Federal Rules of Civil Procedure, ‘a short and plain statement of

the claim showing that the pleader is entitled to relief.,” Baxter by

Baxter v. Vigo County School Corp., 26 F.3d 728, 734 (7th Cir. 1994);

see also Sledd v. Linsda , 102 F.3d 282, 288-89 (7th Cir. 1996).



II. Municipal Liability Against Cicero

Under Monell v. New York City Dep’t of Social Servs., 436

U.S. 658, 691 (1978), municipalities may be held liable under �

1983 for deprivations of federal rights. Municipal liability,

however, is limited to action for which the municipality is

actually responsible — that is, acts which the municipality has

officially sanctioned or ordered. Id. Respondeat superior will

not suffice to impose � 1983 liability on the municipality. Id.

Rather, “it is when the execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible under

1983.” Id. at 694.

Courts have identified three instances in which

a municipality can be said to have violated the civil rights of a

person because of its 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, 26 F.3d at 735 (citations omitted).


Niebur and Bue do not appear to claim that their civil

rights were violated through an “express policy- or a “widespread

practice” of the Town of Cicero to silence its critics.3

Instead, Niebur and Bue argue that they were subject to a

distinct course of action in so far as they were targeted for

dismissal by senior Town officials — i.e., persons with final

policymaking authority — in direct retaliation for their role in

investigating governmental wrongdoing and their exercise of First

Amendment rights. In Pembaur v. City of Cincinnati, 475 U.S. 469

(1986), the Supreme Court explained:


If the decision to adopt that particular course of action
is properly made by that government’s authorized
decisionmakers, it surely represents an act of official
government “policy” as that term is commonly understood.
More importantly, where action is directed by those who
establish governmental policy, the.. municipality is equally
responsible whether that action is to be taken only once or
to be taken repeatedly. To deny compensation to the victim
would therefore be contrary to the fundamental purpose of �

Id. at 481.


3 Defendants have mischaracterized Plaintiffs’ cause of action
based on Town ordinance 27-97. Plaintiffs do not allege that the
Ordinance is unconstitutional on its face. Rather, they claim that ordinance Number 27-97 gives Loren-Maltese “unfettered power and
authority,” which she abused to “white wash wrongdoing
involving Ram and Town officials.” (Cmpl. at 1 67.) Thus, it
was Loren-Maltese's application of the Ordinance which allegedly violated Plaintiffs, constitutional rights, not the Ordinance itself.


“Monell is a case about responsibility.” Id. at 478. Properly

put, the question before this Court is whether Niebur and Bue’s

Complaint has appropriately distinguished acts of the municipality from

acts of employees of the municipality. In other words, are Plaintiffs

simply attempting to hold the Town vicariously liable for the wrongful

acts of its employees – Loren-Maltese or Rayle. Only those officials

who possess the requisite policymaking authority are capable of

establishing “official policy” — and thus, acting for the municipality

within the meaning of Monell. With this in mind, municipal liability

under S 1983 only attaches where “a deliberate choice to follow a

course of action is made from among various alternatives by the

official or officials responsible for establishing final policy with

respect to the subject matter in question.” Id. at 483.


Niebur and Bue’s Complaint alleges that Loren-Maltese, as

Town President, is a “final policymaker and decisionmaker for the

Town of Cicero with regard to all acts and decisions alleged in

this Complaint.” (Cmpl. at 1 8.) According to the Complaint,

Loren-Maltese has appointed all members of the Police Board and

controls all of their actions and decisions. (Id. at 1 10.)

Moreover, it allegedly was Loren-Maltese who “formally appointed”


Niebur and Bue and who ultimately ordered them to surrender their

Badges and suspended them 4 (Id. at �� 22, 25, 69-70.) Finally,

the Complaint asserts that Rayle, working in conjunction with

Loren-Maltese, filed dismissal charges against Niebur and Bue “on

behalf of the Town.” (Id. at � 77) 5


Based on a review of Niebur and Bue’s Complaint, this Court is

satisfied that their claims against the Town of Cicero are more than

simply “boilerplate allegations” or a back-door attempt to impose

vicarious liability.- Plaintiffs have adequately alleged that their

constitutional injuries were caused by at least one person — Loren-

Maltese, and possibly Rayle — with “final policymaking authority,” and

the Town may therefore be held liable under � 1983.


4 Loren-Maltese maintains that, as a matter of law, she is not a final
policymaker with respect to the acts and decisions alleged in
Plaintiffs, Complaint. While Loren-Maltese may not have the power to
formally discharge Plaintiffs, there are sufficient allegations that:
(1) she was the final policymaker with respect to Plaintiffs,
suspensions; and (2) she was directly responsible for the filing
of the “fraudulent” dismissal charges against Plaintiffs.

 5 Niebur and Bue also allege that pursuant to Town ordinances, only
the Town President has "the power to appoint, suspend, and fire the
Superintendent and Deputy Superintendent of Police." (Cmpl. at 79.)


  III. Plaintiffs’ First Amendment Retaliation Claims

The First Amendment “was fashioned to assure unfettered

interchange of ideas for the bringing about of political and social

changes desired by the people.” Roth v. United States,

354 U.S. 476, 484 (1957). “[S]peech concerning public affairs is

more than self-expression; it is the essence of self-government.”

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). With this

principle in mind, the Supreme Court has consistently reaffirmed

that speech on public issues occupies the “highest rung of the

hierarchy of First Amendment values” and is entitled to “special

protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (citing

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)).


To state a claim for retaliation in violation of the First

Amendment, a public employee must demonstrate that he has

suffered an adverse employment action motivated by the exercise

of his right to free speech. Pickering v. Board of Educ., 391

U.S. 563 (1968). There are several “caveats” limiting this broad

dictate. The speech must be on a matter of public concern.

Connick, 461 U.S. at 147. The employee’s interest in the speech

must outweigh governmental interests in running an efficient and

productive office. Pickering, 391 U.S. at 568. “And the

complained-of action must be sufficiently adverse to present an


actual or potential danger that the speech of employees will be

chilled.” DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 191 (7th

Cir. 1995) (citing Rutan v. Republican Party of Illinois, 497 U.S. 62,

73-74 (1990)).6


Defendants do not argue that Plaintiffs, cooperation with

the FBI did not involve a matter of public concern.’ Nor do they

contend that Plaintiffs, cooperation had a “detrimental effect”

on governmental interests in running an efficient and productive

office. Instead, Defendants claim that Plaintiffs were suspended

for failing to cooperate with the Town’s own investigation headed

by Rayle. Defendants insist that there is no First Amendment


6 Although Niebur has not yet had his hearing before the
Police Board, “First Amendment protection has never required the
exhaustion of administrative remedies.” O’Brien v. Town of
748 F.2d 403, 408 (7th Cir. 1984). And, even “trivial
forms of retaliation for the exercise of protected rights, such
as that of free speech, have been held actionable. . ..” Swick
v. City of Chicago, 
11 F.3d 85, 87 (7th Cir. 1993) (citations

7 At first blush, it appears that the speech at issue was
unquestionably on a matter of public concern. See e.g., Glass v
. Dachel, 2 F.3d 733, 741 (7th Cir. 1993) ("matters of public
concern do include speech aimed at uncovering wrongdoing or
breaches of the public trust") (citation omitted). Nevertheless,
the Seventh Circuit has indicated that once properly pled,
questions concerning application of the Pickering balancing test
are properly raised by Defendants -- and considered by the Court
-- only after the parties have had an opportunity to conduct some
discovery. Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997)
(citations omitted).



right to remain silent, and Plaintiffs, therefore, have no

constitutional protection or excuse for failing to assist the

Town’s investigation.

Initially, the Court notes that Defendants, statement of First

Amendment jurisprudence is too narrow. There are many instances where

the First Amendment has protected not only the right to speak, but also

the right not to speak. See e.g., Wooley v. Maynard, 430 U.S. 705, 714

(1977) (“right of freedom of thought protected by the First Amendment

against state action includes both the right to speak freely and the

right to refrain from speaking at all”); West Va. State Bd. of Educ. v.

Barnett, 319 U.S. 624, 637 (1943) (right to speak and right to refrain

from speaking are complementary components of the broader concept of

“individual freedom of mind”). However, Defendants are correct that

those cases recognizing a “right to remain silent”

involve circumstances where individuals are being asked to

espouse or advocate a point of view that they find unacceptable.


Based upon the allegations of Plaintiffs, Complaint, it is

unclear what exactly Niebur and Sue’s refusal to “cooperate” with

the Town’s investigation entailed. If Rayle wanted Niebur and

Sue to “cooperate” in the Town’s investigation by endorsing the

notion that no wrongdoing took place, that is one thing.


However, if Niebur and Bue’s refusal to “cooperate” simply meant

That they refused to answer basic questions, this may be

protected, but not by the First Amendment. The answer to this

question can wait for another day because there is more

to Plaintiffs’ First Amendment claims than their “right to remain


The thrust of Plaintiffs’ claim is not so much that they

were retaliated against for not cooperating with the Town’s

investigation, but rather, that they were retaliated against for

cooperating with the FBI and the Illinois State Police. (Cmpl.

at �� 89-90.) Plaintiffs allege that their refusal to cooperate

with the Town’s investigation — on the advice of the FBI and the

United States Attorney’s office — was simply a pretext

identified by Defendants to coverup their dismissal . ID at �

92.) Moreover, Plaintiffs complain that the Town’s so-called

investigation, pursuant to Ordinance Number 27-97, was an effort


8 Defendants ask this Court to take judicial notice of the
“actual” reasons why Niebur and Bue were suspended. In
particular, Defendants point to charges filed against Plaintiffs
asserting, inter alia, that they were fired for disobeying a Town
Ordinance and breach of fiduciary duty. Defendants miss the
point. Plaintiffs allege that the Town’s reasons were “false
[and] pretextual.” (Cmpl. at � 92.) At this stage in the
proceedings, this Court must accept those allegations as true
regardless of whether the Court takes judicial notice of
Defendants' proffered explanations for the suspensions.



to “white wash wrongdoing” and retaliate against them for their

attempts to expose Town corruption. (Id. at � 67, 69.)


As a matter of pleading, this court has no difficulty concluding

that Plaintiffs have sufficiently alleged their claims of First

Amendment retaliation against Defendants.


IV. Plaintiffs’ Due Process Claims

A. Deprivation of Property Interest

In order to establish a violation of procedural due process,

Plaintiffs must demonstrate that they possessed a protected property

interest in their public employment and that they were deprived of this

interest without due process of law. See generally Board of Regents v.

Roth, 408 U.S. 564 (1972); Gustafson, 117 F.3d at 1020 (citation

omitted). Defendants acknowledge that both Niebur and Bue possessed a

property interest in their employment — they had both been given

employment contracts running through the year 2001. See Zemke v.

City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996) (written

employment contract capable of supporting property interest).

Defendants argue, however, that neither Niebur nor Bue was

deprived of their property interest in violation of the

Fourteenth Amendment.



1. � Niebur

Defendants maintain that Niebur’s procedural due process claim is

not ripe because he has not yet had his discharge hearing before the

Police Board. In other words, if Niebur believes that he has been

wrongfully, or even unconstitutionally, discharged, he will receive his

“due process” from the Police Board — which will either reinstate him

with back pay or officially terminate him. Until that time, however,

Defendants insist that there has been no deprivation of due process.


This Court cannot agree. ‘Procedural due process rules are

Meant to protect persons not from the deprivation, but from the

mistaken or unjustified deprivation of life, liberty or

property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). Niebur

alleges that he was unjustifiably suspended from his position as

Police Superintendent without pay. (Cmpl. at 1 77.) Even if the

Police Board was to reinstate him with back pay tomorrow, the

“unjustified” deprivation would still exist — although the



damage would clearly be reduced.The Supreme Court has

explained this principle as follows:

Because the right to procedural due process is “absolute” in
the sense that it does not depend upon the merits of a
claimant’s substantive assertions, and because of the
importance to organized society that procedural due process
be observed, we believe that the denial of procedural due
process should be actionable for nominal damages without
proof of actual injury.

Carey, 435 U.S. at 266.


Defendants, reliance on the pending Police Board proceedings

also ignores the core allegations in Plaintiffs’ Complaint.

Plaintiffs maintain that the Police Board is sham and acts as

little more than a rubber stamp for Loren-Maltese and other Town

officials. (Cmpl. at �� 77-86.) Plaintiffs also allege that the

Police Board is illegally constituted and that certain of its

members were personally involved in the wrongdoing that

Plaintiffs attempted to bring to light. While this Court

expresses no opinion about the veracity of these allegations, it

must still accept them as true. As such, the pending Police

Board hearing appears to offer little more to Niebur than another


9While the parties have not raised the propriety of “pre
deprivation process” versus “post-deprivation process” in this
instance, Plaintiffs have alleged facts sufficient for this Court
to conclude that -pre-deprivation process” was definitely
practical here. See Parratt v. Taylor, 451 U.S. 527 (1981).


opportunity for Defendants to deprive him of his rights to

procedural due process — an opportunity he is understandably

reluctant to wait around for.


2.�� Bue

The next question is whether Bue is, as a matter of law,

differently situated than Niebur. Clearly, on a factual basis, he is.

Bue has already been reinstated with back pay and he is no longer

facing the possibility of a hearing before the “sham” Police Board.

Defendants rely on Swick v. City of Chicago, 11 F.3d 85 (7th Cir.

1993), for the proposition that once a plaintiff’s pecuniary injury has

been restored or made whole, he no longer has a valid due process

claim. This, however, is not an accurate characterization of the facts

of this case or the holding of Swick .


In Swick, a veteran Chicago Police officer (“Swick”) was

placed on involuntary sick leave for more than a year. Swick’s

income was not reduced during this time period, although he was

forced to turn in his badge and gun and was forbidden to wear his

uniform or exercise the arrest or other powers of a police

officer. Id. at 86. Swick claimed that he was placed on leave

without a hearing or other safeguards, and thus was denied due

process of law. -Id. One of the issues facing the court was


whether –property’ within the sense of the [Fourteenth] [A)mendment

should be extended to the purely dignitary or otherwise nonpecuniary

dimensions of employment.” Id: at 87. The court ultimately concluded

that it should not be, and that certain injuries were “intangible” and

“invariably difficult to measure.” Id. Those injuries, according to

the court, “must be accepted as the price of living in society rather

than made a federal -case out of.” Id. (citation omitted).


This Court is not prepared to accept the injuries alleged by

Bue as “the price of living in society.” Nor does the Court view

the injuries complained of by Bue to be similar to those at issue

in Swick. Bue is not simply complaining that he was deprived of

the “psychic satisfaction” of doing police work for the Town of

Cicero; he claims that he was suspended without pay from his job

because he exercised his First Amendment rights. The Swick court

explicitly recognized this distinction when it stated:

We do not doubt that Swick would have a claim if he had been
suspended for however short a time without full pay. . . Decisions
. . . in which trivial forms of retaliation for the exercise of
protected rights, such as that of free speech, have been held
actionable, are not apt. The threat of even a minor deprivation of
some valued good can deter the exercise of protected rights; here
the issue -is whether the minor deprivation is actionable for its
own sake when no other right is threatened.


Id. at 87 (citation omitted) (emphasis added). Clearly, there

are important rights at stake in Bue’s Complaint even if

Defendants are correct in their assertion that the alleged

retaliation was trivial.


B. Deprivation of Liberty Interest

Similar to a property interest, a plaintiff is also entitled

to procedural due process notice and hearing if

that plaintiff is able to demonstrate that he has a liberty

interest in his employment. Defendants were required to afford

Plaintiffs due process if, in the process of discharging them,

they publicly charged Plaintiffs with immorality, dishonesty, or

the like, or otherwise stigmatized them in a way that foreclosed

future employment opportunities. Fittshur v. Village of

Menomonee Falls, 31 F.3d 1401, 1409 (7th Cir. 1994) (citation

omitted). In order to state a claim for deprivation of a liberty

interest in one’s post-employment reputation, Plaintiffs are

required to show that: (1) they were stigmatized by Defendants,

conduct; (2) the stigmatizing information was publicly disclosed;

and (3) Plaintiffs suffered a tangible loss of other employment

opportunities as a result of the public disclosure. Paul v.

Davis, 424 U.S. 693, 701 (1976).



There is no liberty interest implicated when a government

Official merely defames an individual. Siegert v. Gilley, 500

U.S. 226, 233 (1991). “The key . . . is that the defamation must

occur in the course of the termination of employment, at or near

the time of the termination, since that is when the liberty

interest requiring a due process hearing arises if at all.”

Pirela v. Village of North Aurora, 966 F. Supp. 661,666 (N.D.

I11. 1997) (citing Davis, 424 U.S. at 710). Relying upon this

statement of the law, argue that Plaintiffs may not

prevail on their due process claim because they have not been

deprived of their liberty interests in the constitutional sense

of the word “deprived.” In other words, Plaintiffs were only

suspended, not terminated.


This Court has already addressed the question of whether

Plaintiffs, suspensions constituted a deprivation of property

under a due process analysis. For similar reasons, this court

finds that the suspensions constituted a deprivation of liberty

as well. Specifically, where the allegedly false charges

accompany an unfavorable employment decision that would “raise

the likelihood that the defamation would be viewed by prospective

employers as being something sufficiently serious as to affect []

employability,” Bone v. City of Lafayette, 763 F.2d 295, 298 n.1


(7th Cir. 1985) , this Court concludes that there is a sufficient

“deprivation” to invoke due process protections. -See D’Acquisto

v. Washington, 640 F. Supp. 594, 610-11 (N.D. Ill. 1986)

(deprivation of liberty where defamatory statements accompanied

suspension of police officer without pay) .10


V. Section 1983 Conspiracy

Plaintiffs state that their conspiracy claim is only brought

against Loren-Maltese, Rayle and the individual members of the

Police Board (Gross, Barloga, Caravetta, Marzano and Ciuffo). To

state a claim for conspiracy, a plaintiff must allege facts

supporting an agreement between the defendants. The Seventh

Circuit has explained:

There must be allegations that the defendants directed
themselves toward an unconstitutional action by virtue of a
mutual understanding. Even were such allegations to be
made, they must further be supported by some factual
allegations suggesting a “meeting of the minds.”

Kunik v. Racine County, Wis., 946 F.2d 1574, 1580 (7th Cir. 1991)

(citation omitted).


10 Defendants also argue that the allegedly stigmatizing
information about Plaintiffs was not disseminated to the public
or anyone outside of the “appropriate chain of command.” (Loren-
Maltese Mem. at 10-11.) While this may or may not be correct,
Plaintiffs have adequately alleged that “the Town, Loren-Maltese
and Rayle published written charges” against them. (Cmpl. at �
105.) At this stage of the proceedings, this is all that is



This Court finds that Plaintiffs’ Complaint is replete with

factual allegations suggesting a “meeting of the minds” by which

Defendants directed themselves towards unconstitutional actions

against Niebur and Bue.11

Nevertheless, the Court finds that the “intracorporate

conspiracy” doctrine is applicable to the conspiracy alleged in

Plaintiffs, Complaint and bars Plaintiffs, conspiracy claim.

Under the doctrine, “employees of a corporation who jointly

pursue its lawful business do not become -conspirators, when acts

within the scope of their employment are said to be

discriminatory or retaliatory.” Tabor v. City of Chicago,— F.

Supp. —, 1998 WL 389059, at *6 (N.D. 111. July 10, 1998)

(citing Travis v. Gary Community Mental Health Center, Inc., 921

F.2d 108, 110 (7th Cir. 1990)). The critical questions are: (1)

whether the wrongful conduct was performed within the scope of

the conspirators’ official duties; and (2) whether Defendants’

ability to injure Plaintiffs derives solely from their positions

within the entity for which they work and the influence they

wield therefrom. Id. (citing Doe v. Bd. of Educ. of Hononegah


11Because of this Court’s finding of judicial immunity, it is
unnecessary to determine whether individual Police Board members,
other than Gross, participated in this alleged conspiracy.


Community School Dist. 207, 833 F. Supp. 1366, 1382 (N.D. Ill.



Here, the conspiracy alleged between Loren-Maltese, Rayle

and Gross — the only remaining conspirators — involved persons

acting “under color of the statutes, customs, ordinances, and

usage of the State of Illinois and the Town of Cicero.” (Cmpl.

at � 16.) Additionally, their ability to injure Plaintiffs

derives solely from their positions within the Town and the

influence they wield therefrom. (See id. at �� 140-141.) While

there is an exception to the doctrine where individual defendants

are motivated solely by personal bias, there are no such

allegations in Plaintiffs, Complaint. See Tabor, 1998 WL 389059,

at *7. Accordingly, Plaintiffs’ conspiracy claim is barred by

the intracorporate conspiracy doctrine.


VI.� Immunity

A.�� Qualified Immunity

Several of the–Defendants argue that they are entitled to

qualified immunity from Plaintiffs, claims. “The defense of

qualified immunity shields government officials performing

discretionary functions-from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights.'” Marshall v. Allen, 984 F.2d 787, 791


(7th Cir. 1993) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818

(1982)). The Seventh Circuit has set forth a two-part test to

determine whether the actions of a government official are

entitled to qualified immunity: “(1) does the alleged conduct set

out a constitutional violation? and (2) were the constitutional

standards clearly established at the time in question?” Young v.

Murphy , 90 F.3d 1225, 1234 (7th Cir.1996) (citations omitted).


This Court has already answered the first question

affirmatively — Plaintiffs have set forth several constitutional

violations. The next question is whether the standards were

clearly established at the time in question. In other words, was

it “clearly established” in April 1998 that Defendants could not

retaliate against Plaintiffs — via suspension, termination, or

defamation — for cooperating with law enforcement agencies to

uncover alleged corruption and wrongdoing. The Court does not

need to look very far to conclude that this proposition was

clearly established. In fact, “[i]t has been well established

for many years in this Circuit that a public employer may not

retaliate against an employee who exercises his First Amendment

speech rights.” Gustafson, 117 F.3d at 1021. More specifically,

the Seventh Circuit has held that as of 1986, a reasonable public

official would know that statements made to the FBI about alleged


governmental wrongdoing were protected under the First Amendment.

Gorman v. Robinson, 977 F.2d 350, 356 (7th Cir. 1992). Thus, as

a matter of law, qualified immunity is not available to

Defendants at this juncture.12

B. Judicial Immunity

The Police Board and its individual members, Gross, Barloga,

Caravetta, Marzano and Ciuffo, claim that they were at all relevant

times acting in a judicial — or quasi-judicial capacity and are

therefore entitled to absolute immunity in this action. This Court

agrees with at least part of Defendants, argument.


It is firmly established that judges are absolutely immune

From civil liability for acts not in clear absence of judicial

jurisdiction. Ashbrook v. Hoffman, 617 F.2d 474, 476 (7th Cir.

1980) (citing, inter alia, Stump v. Sparkman, 435 U.S. 349

(1978)). Moreover, local officials acting in a judicial capacity

enjoy the same immunity as more traditional judges. Reed v.


12 Loren-Maltese insists that she should be given qualified
immunity because Plaintiffs had no “clearly established” right not to
cooperate with the Town’s investigation. Again, Loren-Maltese is
mischaracterizing the nucleus of Plaintiffs, claim. Plaintiffs contend
they were suspended for cooperating with the FBI and that the Town’s
so-called investigation was simply a pretext to dismiss them for their



Village of Shorewood , 704 F.2d 943 (1983); Balcerzak v. City of

Milwaukee, 980 F. Supp. 983, 987 (E.D. Wis. 1997). “This

immunity springs not from the notion that judges are above

reproach, but rather that an appellate process exists for

righting judicial wrongs. If aggrieved litigants are permitted to end-

run, or in this case exceed, the appellate process,

judicial actors would be hard pressed to carry out their duties.”

Balcerzak, 980 F. Supp. at 987.13 Accordingly, the Court finds

that the individual Police Board members, who were acting in a

judicial/quasi-judicial capacity, are absolutely immune from this

suit. 14


13 The Police Board claims that it too is entitled to judicial
immunity. The Board has cited no support for this unique proposition.
In fact, most authority seems to be directly contrary and limits
judicial immunity to individual judicial officers. See Reed, 704 F.2d
at 953 (“municipality’s liability . . . extends to acts for which the
policymaking officials themselves might enjoy absolute liability
because the acts were legislative or judicial in character”); Owen v.
City of Independence, 
445 U.S. 622, 638 (1980).

14 Plaintiffs claim that pursuant to Pulliam v. Allen,-466
U.S. 522(1984), the Board members cannot enjoy absolute immunity
from injunctive relief. In the same breath, however, they
concede that Pulliam has been partially overruled by statute in
the Federal Courts Improvement Act of 1996, Pub. L. No. 104-317.
Given this concession, and the fact that Plaintiffs’ Complaint
does not fall within the part of Pulliam that was not overruled,
the Court is puzzled as to why this question has been raised. In
any event, the Board members are also immune from injunctive
relief. See 42 U.S.C. S 1983 (“in any action brought against a



Because the Complaint alleges certain distinctions among Board

members, it is necessary to be more specific about who is

immune and who is not. To begin with, the Court finds that

Barloga, Caravetta, Marzano and Ciuffo should be dismissed from

this action because there are no substantive allegations that

these Board members acted outside their judicial capacities in

this action. Gross presents a more complicated situation.

Plaintiffs argue that Gross’ alleged wrongdoing extended well

beyond what could be deemed judicial acts. For example, Plaintiffs

allege that Gross participated extensively in Rayle’s “investigation”

and was deeply involved in the alleged conspiracy to retaliate against

Niebur and Bue. (Cmpl. at �� 75, 76.) Thus, the Court is unwilling to

extend judicial immunity to Gross for those actions which he allegedly

engaged in that were outside of a judicial capacity.


judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was


VII. State Law Claims

 A. Breach of Contract

Defendants contend that the Police Board, not the Town,

Suspended Plaintiffs and thereby “breached” Plaintiffs,

employment contracts. As discussed at length in earlier portions

of this opinion, Plaintiffs allege that the Town and Loren-

Maltese were responsible for filing false and pretextual charges

with the Police Board which led to Plaintiffs, suspensions..

Whether this is true or not is a matter for another time;

it is sufficient to allow Plaintiffs, breach of contract claims to


B. Retaliatory Suspension

Plaintiffs have not been discharged — at least not yet

-and this Court is aware of no authority in Illinois indicating an

expansion of the retaliatory discharge cause of action to include

suspensions such as in this case. Stutzman v.-Board of Edu. of

the City of Chicago, 171 Ill. App. 3d 670, 675, 525 N.E.2d 903,

907 (1st Dist. 1988) (citations omitted). Thus, Plaintiffs’

“retaliatory suspension” claim is dismissed and Niebur may seek


15 Plaintiffs have voluntarily dismissed Count X of their
Complaint seeking indemnification.



leave to amend the Complaint at a later date to include -a

“retaliatory discharge,, claim should it become necessary.

C��� .Intentional Infliction of Emotional Distress

Defendants contend that Plaintiffs have not sufficiently

demonstrated that the complained-of conduct was “extreme and

outrageous” and that this claim must be dismissed as a matter of law. 16

Yet, Defendants concede that Plaintiffs have alleged:

The conduct and actions of Defendants as alleged herein were
extreme and outrageous, were done intentionally, willfully and
wantonly, and/or knowing there was a high probability that their
conduct would cause Plaintiffs severe emotional distress as
alleged herein.


(Cmpl. at � 137.) In this Court's opinion, if the facts alleged by

Plaintiffs are accurate — or even close — then Defendants conduct is

appropriately characterized as “extreme and outrageous.”


16 Rayle contends that he is immune from this claim as a Town
employee under the Tort Immunity Act, 745 ILCS 10/1-202. While
the Court agrees that Rayle was alleged to be a Town employee,
immunity under the Act only applies to employees who exercise
discretion and determine policy. Harinek v. 161 North Clark St.
Ltd., 181 111. 2d 335 -141, 692 N.E.2d 1177, 1181 (Ill. 1988).
Based on the allegations of the Complaint, the Court does not
agree that Rayle determined policy such that he should be
afforded immunity as to this claim.




Once it has been determined that Plaintiffs have alleged a

constitutional injury, the fundamental question in this case

turns to whether Plaintiffs were in fact suspended — or in

Niebur’s case potentially terminated — for exercising their

First Amendment rights to free speech. In other words, why were

they actually suspended? The impending Police Board hearing will

have some, but not much, effect on the resolution of this

question. The Police Board hearing, and the factual findings

made at this hearing, are not binding on this Court. While the

Police Board may find that Niebur — and by implication Bue –

was suspended and should be dismissed for “legitimate” reasons,

this determination may in the long run simply increase Niebur’s

damages and strengthen both Plaintiffs’ claims against the “sham”

Police Board. Accordingly, the Court urges all parties to

proceed with caution and to keep their focus directed on the

pivotal question.


For the foregoing reasons, the Court denies in part and

grants in part Defendants’ motions to dismiss-. Plaintiffs are

directed to file an amended complaint within 14 days of the date

of this order reflecting the following modifications: (1) Counts

V (conspiracy), VIII (retaliatory suspension) and X



(indemnification) are dismissed; (2) Board of Police members Barloga,

Caravetta, Marzano and Ciuffo are dismissed; and (3) all redundant

claims against individual Defendants in their official capacities should

be dismissed in accordance with Tabor, 1998 WL 389059, at *2.





DATED -Sept 19,1998






d to keep their focus directed on the

pivotal question.

For the foregoing reasons, the Court denies in part and

grants in part Defendants’ motions to dismiss-. Plaintiffs are

directed to file an amended complaint within 14 days of the date

of this order reflecting the following modifications: (1) Counts

V (conspiracy), VIII (retaliatory suspension) and X


(indemnification) are dismissed; (2) Board of Police members Barloga,

Caravetta, Marzano and Ciuffo are dismissed; and (3) all redundant

claims against individual Defendants in their official capacities should

be dismissed in accordance with Tabor, 1998 WL 389059, at *2.




DATED -Sept 19,1998