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 1 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. BACKGROUND 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. 2 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. 3 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. 4 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 5 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 6 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 7 to Rayle, or any other Town official, about Ram or the towing records. 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.) 8 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 – 9 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. 10 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). DISCUSSION 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 11 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). 12: 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). 13 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 �
1983. 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. 14 “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” 15 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 1 79.)
16 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 17 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
Caledonia, 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
omitted). 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). 18 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. 19 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 silent.” 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 8 . 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. 20 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. 21 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 22 damage would clearly be reduced.9 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).
23 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 24 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. 25 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). 26 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 27 (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
required. 28 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.
29 Community School Dist. 207, 833 F. Supp. 1366, 1382 (N.D. Ill. 1993)). 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 30 (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 31 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
cooperation. 32 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 33 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
unavailable”). 34 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 survive. 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. 35 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. 36 CONCLUSION 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 37 (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. ENTER: s/GE0RGE.M. MAROVICH
GEORGE M> MAROVICH
UNITED STATES DISTRICT JUDGE DATED -Sept 19,1998 38 |