No. 96 C 4150
March 5, 1999
MEMORANDUM OPINION AND ORDER
Plaintiff, Noreen Nagle ("Nagle") has filed a ten-count complaint against Defendant, the Chicago School Reform Board of Trustees, District 299 ("the Board"), as well as various individual defendants, Paul Vallas ("Vallas"), Lynn St. James ("St. James"), Blondean Davis ("Davis"), Patricia Harvey ("Harvey"), Phillip J. Hansen, Jr. ("Hansen"), Joseph Hahn ("Hahn"), Peter Ardito ("Ardito"), Roger Kolman ("Kolman"), Timothy Czarnecki ("Czarnecki") and Jerome C. Marconi ("Marconi").
The court previously dismissed Counts I and II. Nagle brings her remaining counts pursuant to 42 U.S.C. § 1983 and the United States Constitution. In Count III, Nagle sets forth a claim for damage to constitutionally protected property interests. In Counts IV through VI, Nagle asserts defamation claims against Vallas, Harvey, Hansen, and Hahn (Count IV), Marconi (Count V) and Czarnecki (Count VI). Nagle brings Count VII against all defendants for injury to liberty interests under the Fourteenth Amendment. In Count VIII, Nagle makes a claim of tortious interference with a contractual relationship against the Board. Count IX contains allegations that defendants violated Title VII, 42 U.S.C. § 2000. Lastly, in Count X, Nagle makes a First Amendment freedom of association and freedom of political expression claim under the United States Constitution.
Defendants move to dismiss Counts IV through VIII and X in their entirety and all counts against individual defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants also move to strike numerous paragraphs in Nagle's complaint as irrelevant. In Plaintiff's response to the Defendants' Motion, Plaintiff requests leave to replead Counts IV and VI. The court grants plaintiff's request; and, therefore, denies defendants' motion as to Counts IV and VI, without prejudice. As to the remaining counts, this court grants in part and denies in part defendants' motions.
In August 1993, the Prosser Local School Council ("LSC") appointed Nagle to be acting principal at Prosser Vocational High School ("Prosser"). (4th Am. Compl. ¶ 14.) At the time, Czarnecki was a community delegate of the Prosser LSC. (4th Am. Compl. ¶ 12.) In October 1993, the position of principal of the Prosser principal was advertised and Nagle was then appointed to fill the remainder of the previous principal's contract until June 30, 1995. (4th Am. Compl. ¶ 15.) On January 5, 1995, Nagle was appointed to a new four year contract of employment as principal of Prosser Vocational High School for the term beginning on July 1, 1995 and ending on June 30, 1999. (4th Am. Compl. ¶ 16.)
As principal, Nagle instituted some new policies and procedures for the teachers and other school officials. These new policies and procedures included (1) requiring teachers to submit lesson plans; (2) requiring teachers to be on time; (3) requiring pre-approval for expenditures from the student internal accounts and for purchasing school items; (4) preventing disciplinarian and Chicago Police officers from using female students from the PE classes as messengers; (5) reducing salaries of some teachers whose assignments no longer qualified them for an additional amount; (6) holding teachers accountable for accurate attendance and tardy records of students; (7) requiring all teachers to be involved in writing the school improvement plan; and (8) following flex time schedule according to union contract. (4th Am. Compl. ¶ 18.) A core group of teachers, to whom Nagle refers as "The Old Guard," vehemently opposed these new procedures and policies. (4th Am. Compl. ¶ 19.)
Nagle also became aware of certain financial irregularities. (4th Am. Compl. ¶ 19.) She noticed that Czarnecki was in charge of the school's internal accounts which, according to Board rules, were the responsibility of the principal. (4th Am. Compl. ¶ 19(a).) Contrary to the School Internal Accounts Manual, Czarnecki was diverting funds from the general account into a special account to fund scholarships which were awarded to students selected by the LSC. (4th Am. Compl. ¶ 19(b).) Nagle also noticed that the school accounts were $65,000 in debt and that the teachers responsible for the soda machines were not keeping proper records of the funds generated by the machines. (4th Am. Compl. ¶ 19 (c-d).) As a result, Nagle requested an audit from the Board's Internal Audit Department. Her request was refused. (4th Am. Compl. ¶ 20-21.) Adalbert Kouba, Director of Internal Audits, confirmed orally to Nagle that the LSC could not award scholarships from the general student activities fees collected. (4th Am. Compl. ¶ 22.) Nagle also took control and maintenance of the soda machines. (4th Am. Compl. ¶ 23.)
On February 7, 1994, Charlotte Klug ("Klug"), at Nagle's request, was transferred to Prosser to fill the position of Dean of Students for incoming Freshmen. (4th Am. Compl. ¶ 24-25, 29.) According to Nagle, Klug occupied an office that was previous a meeting place for some of the Old Guard. (4th Am. Compl. ¶ 30.) On the evening of Klug's first day at the school, Officer Scheckells entered Klug's locked office and removed the phone. (4th Am. Compl. ¶ 30.) Karin Grimes, a part-time social worker, demanded to use one of the desks in Klug's office even though she had an office elsewhere in the building. (4th Am. Compl. ¶ 31.)
Sometime near January 1994, at Nagle's request, Mr. Cardenas was assigned to Prosser as the assistant principal and was chosen over Kolman, whom Czarnecki had highly recommended. (4th Am. Compl. ¶ 32-33.) According to Nagle, like Klug, Cardenas also suffered from attacks by the Old Guard. (4th Am. Compl. ¶ 34.) On one occasion, Beveridge dumped a pitcher of ice water on his head in front of the whole staff. (4th Am. Compl. ¶ 34(a).) The Old Guard refused to recognize his authority and criticized him to the students. (4th Am. Compl. ¶ 34(b).)
Nagle claims that the Old Guard was intent upon getting rid of her, as well as, Klug, Cardenas and Lynnette Sherod-Carr ("Sherrod-Carr"). The President of the Prosser LSC, Sherrod-Carr was elected despite Czarnecki's vehement opposition, because of their attempts to "clean up" the school. (4th Am. Compl. ¶ 13, 36.) Nagle cited numerous occasions on which she or a member of her administrative team was forced to endure harassing and intimidating conduct, such as slashed tires, smashed windshields and attempts by the Old Guard to undermine their authority. (4th Am. Compl. ¶ 37.)
On March 14, 1995, Czarnecki and Sherrod-Carr engaged in argument regarding Sherrod-Carr's daughter who was a Prosser student at the time. (4th Am. Compl. ¶ 38(a)-(b).) Mrs. Tadero had accused Mrs. Sherrod-Carr's daughter of beating up her daughter, which led to the argument between Czarnecki and Sherrod-Carr. (4th Am. Compl. ¶ 40(a).) Czarnecki threatened to close Klug's position, knowing that Klug and Sherrod-Carr were close personal friends, to hurt Sherrod-Carr. (4th Am. Compl. ¶ 38(c).) Klug stepped into the argument to defend his position. (4th Am. Compl. ¶ 38(d).) Later in the argument, Czarnecki went as far as to call Sherrod-Carr a "black nigger" and threatened "I'm going to get you." (4th Am. Compl. ¶ 38(e).)
Nagle alleges that after that date, the Old Guard and Czarnecki teamed up to get rid of Nagle and her "group." (4th Am. Compl. ¶ 39.) Someone sent an anonymous letter from a fax machine at the school to the Office of Reform containing false accusations. (4th Am. Compl. ¶ 39(a).) Cerbin admitted that the Old Guard and Czarnecki held regular meetings to plot to get rid of the Nagle administration. (4th Am. Compl. ¶ 39(b).) The Old Guard, Czarnecki and Ardito complained to Marconi, an assistant attorney for the Board of Education about the Nagle administration; Marconi also allegedly participated in the meetings to oust the Nagle administration. (4th Am. Compl. ¶ 39(c)-(d).) After Klug and Cardenas left Prosser, someone placed order for $1,500 worth of books in each of their names and Klug received crank phone calls at her new assignment for several months after she left Prosser. (4th Am. Compl. ¶ 39(e)-(f).)
In May 1995, Nagle complained of the harassment to the Deputy Superintendent. (4th Am. Compl. ¶ 41.) Marconi contacted Nagle and told her that he was going to investigate the school and get Cardenas out because of complaints he had received from Prosser teachers and Czarnecki. (4th Am. Compl. ¶ 42.) The investigation lasted from July 5, 1995 to September 13, 1995. (4th Am. Compl. ¶ 43.) After Marconi's investigation, Vallas, the CEO and chief administrative officer of the Chicago Public Schools, and Marconi instructed Harvey, Chief Accountability Officer, Hansen, Director of Intervention, and Hahn, employed in the Office of Accountability, to conduct a second investigation consisting merely of interviews of the Old Guard and those to whom the Old Guard directed them to declare an educational crisis. (4th Am. Compl. ¶ 44.) Nagle was interviewed only briefly; and they did not interview any of the persons Nagle recommended. (4th Am. Compl. ¶ 45.) In early October, Harvey, Hahn and Hansen gave Vallas a one-sided report of their investigation. (4th Am. Compl. ¶ 46.)
On October 3, 1995, Nagle was removed. (4th Am. Compl. ¶ 39(g).) The following day, Vallas, speaking on behalf of the defendants, notified the press that Nagle and Cardenas had been removed and that Klug had been reassigned. (4th Am. Compl. ¶ 47.) Vallas announced that the LSC was disbanded and Sherrod-Carr was removed; Vallas also released the report of the investigation results. (4th Am. Compl. ¶ 47.) Marconi also made a statement to a reporter that Nagle failed to report allegations that a teacher fondled a male student. (4th Am. Compl. ¶ 70.) Nagle claims these statements are false. (4th Am. Compl. ¶ 71.)
Nagle further alleges that all involved in the plan to get rid of the Nagle administration were rewarded. Officer Sheckells was reinstated as the Prosser police officer. (4th Am. Compl. ¶ 40(a).) Mrs. Tadero became a teacher's aide. (4th Am. Compl. ¶ 40(a).) Kolman was appointed as Curriculum Director at Prosser. (4th Am. Compl. ¶ 40(b).) Mr. Zaucha, the owner of the tavern where the Old Guard meetings were held, became a member of the LSC, the community representative. (4th Am. Compl. ¶ 40(c).) Cerbin is paid for an 8 hour day despite only teaching 3 classes. (4th Am. Compl. ¶ 40(d).) Ardito has 3 classes but is paid for 5; Ardito was also elected as a teacher representative on the LSC in December 1995. (4th Am. Compl. ¶ 40(e).) Each teacher that Nagle refused to hire despite Czarnecki's recommendation was later hired to work at Prosser. (4th Am. Compl. ¶ 40(f).)
After Nagle was removed from her position and transferred to a Central Office administrative position, Marconi, Vallas and Davis pressured Nagle into resigning from her contracted position. (4th Am. Compl. ¶ 57.) When she failed to do so, they drafted charges against her claiming her conduct was irremediable. (4th Am. Compl. ¶ 58.)
Nagle subsequently sued the defendants for damage to property interests, three counts of defamation, injury to liberty interests, tortious interference with contractual relationship, sex discrimination and violation of First Amendment rights. The Defendants move to dismiss all counts except the claim for damage to property interests and sex discrimination and to strike numerous paragraphs from the complaint. The Defendants also move to dismiss all counts against the individual defendants. Nagle requests leave to amend two of the three defamation counts. The court grants Nagle's requests and, therefore, does not address the Defendants' motion with respect to those two counts. As to the Defendants' motion on the remaining counts and their motion to strike, the court grants in part and denies in part the motions.
This court will first address Defendants' 12(b)(6) motion and then will turn its attention to the motion to strike portions of the complaint.
I. 12(B)(6) MOTION
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the suit.Triad Assocs. Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). Therefore, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. LeBlang Motors, Ltd. v. Subaru of America, Inc., 148 F.3d 680, 690 (7th Cir. 1998). The court will dismiss a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Herdrich v. Pegram, 154 F.3d 362, 369 (7th Cir. 1998) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
A. Counts IV-VI: Defamation Claims
Defendants contend that Nagle fails to state a cause of action for defamation in Counts IV, V and VI on several theories. In her response to defendants' motions, Nagle acknowledges that she failed to incorporate paragraph 47 (which contains the allegations of the defamatory statement), through mere oversight, into Counts IV-VI. She further notes that she inappropriately combined two counts under Count IV and has requested leave to amend that count. (Pl.'s Resp. to Defs.' Mot. ¶ 14.) Nagle also failed to incorporate into Count VI, a statement made by Czarnecki which was included in her Second Amended complaint and has also requested leave to amend this Count. (Pl.'s Resp. to Defs.'s Mot. ¶ 15). The court grants Nagle's requests to amend these counts and will not address defendants' arguments on Counts IV and VI. With respect to Count V against Defendant Marconi, the court will read Count V to include paragraph 47.
Before the court, then, is defendants' motion to dismiss Count V, a defamation claim against individual defendant Marconi. Defendants first argue that Marconi is entitled to absolute immunity. Alternatively, Defendants argue that all claims against the individual defendants should be dismissed because they are immune under the Tort Immunity Act, 745 ILCS 10/2-201. Finally, defendants attack the substance of Nagle's defamation claim. They also maintain that Nagle failed to plead facts sufficient to establish a prima facie case of defamation. Specifically, defendants argue that, as a public figure, Nagle has failed to prove "actual malice." This court concludes that defendants' absolute immunity argument is dispositive of Count V. Therefore, the court does not reach defendants' alternative arguments.
The court will grant a government official absolute immunity from civil defamation suits for statements made within the scope of their employment. Barr v. Matteo, 360 U.S. 564, 570-74 (1959). Plaintiff cannot overcome absolute immunity by a showing of improper motivation or knowledge of falsity.Blair v. Walker, 349 N.E.2d 385, 387 (Ill. 1976).
Originally, the doctrine of absolute immunity was very narrow and applied only to a very specific set of government officials. However, over time, courts have expanded the doctrine to include other governmental officials as well. The Constitution provides that Congressmen shall be absolutely immune for any "speech, debate, vote, report, or action done in session." Barr, 360 U.S. at 569 (citing U.S. Const. Art. I, Sec. 6.) The Supreme Court later expanded the doctrine to include judges exercising their judicial function and other government officials whose duties are related to the judicial process. Barr, 360 U.S. at 569 (citations omitted). Eventually, the Court extended the doctrine to include officials performing executive functions as well. Spalding v. Vilas, 161 U.S. 483, 498-99 (1896) (extending the absolute immunity doctrine to cover a Postmaster General in a defamation suit.).
In Barr, respondents brought a libel suit against the Acting Director of the Office of Rent Stabilization for distributing a press release in which he announced his plan to discharge the respondents. The Court granted defendant absolute privilege. Barr, 360 U.S. at 574. The Court noted that "[i]t is not the title of his office but the [official's] duties" which trigger the immunity. Id. at 573. "[T]he relation of the act complained of to `matters committed by law to his control or supervision'" provides the guidelines for the scope of the privilege. Id. (citing Spalding, 161 U.S. at 498). Absolute immunity is, therefore, "dependent upon the scope of power and discretion incident to the duty entrusted to the officer . . . . from the highest to the lower levels of the governmental hierarchy." Sauber v. Gliedman, 283 F.2d 941, 943 (7th Cir. 1960).
The Court in Barr noted that, even though the petitioner was not required to issue a public statement, his publicly expressed statement announcing personnel action he planned to take was "an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively." Barr, 360 U.S. at 575. The public statement fell within the "outer perimeter of petitioner's line of duty" which was sufficient to trigger the immunity.Id.
The statement issued by Defendant Marconi, is similar to the one at issue in Barr. When he made the statement at issue in this case, Marconi was acting within the scope of his duties. As Assistant Attorney for the Board, Marconi led an investigation into allegations of wrongdoing at Prosser. (4th Am. Compl. ¶¶ 42-44.) Several months after beginning his investigation, Marconi made statements to a reporter that were reprinted in the October 5, 1995 issue of the Chicago Tribune. One of Marconi's statements read that "Nagle declined to report the allegations [that a teacher fondled a male student]." (Defs.' Mot. to Dismiss ¶ 15; 4th Am. Compl. ¶ 69.) Just like the defendant in Barr, Marconi's decision to make a statement to the press regarding Prosser was also an appropriate exercise of discretion; one that is equally deserving of protection under the doctrine of absolute immunity.
Nagle contends that Barr only supports applying absolute immunity where policy making high level executive officials are concerned. This court disagrees. Not only did Barr emphasize that the privilege does not attach to the title, but instead to the function, subsequent case law has expanded the doctrine to include lower ranking officials. Lower state and federal courts have extended absolute immunity to a police detective, a deputy police superintendent, and a public school principal, for statements falling within the scope of their duties. See Cameli v. O'Neal, No. 95 C 1369, 1995 WL 398893, at *1-2 (N.D. Ill. July 2, 1995) (holding that the common law immunity doctrine was applicable to a school principal for statements falling within the scope of his duties); Harris v. News-Sun, 646 N.E.2d 8, 11-12 (Ill.App. Ct. 1995) (holding that a police detective was entitled to absolute immunity for statements made involving an investigation headed by the detective which fell within the scope of his duties); Dolatowski v. Life Printing and Publ'g Co., Inc., 554 N.E.2d 692, 695 (Ill.App.Ct. 1990) (holding that a deputy police superintendent was entitled to absolute immunity for statements falling within the scope of his duties).
Under 105 ILCS 5/34-11, Marconi's duties included the "charge and control, subject to the approval of the board, of the law department and of all litigation, legal questions and such other legal matters as may be referred to the department by the board or by the general superintendent of schools." Although his responsibilities, as defined by the Illinois School Code, do not explicitly list interaction with the media, as in Barr, this is a responsibility which falls within his duties. Marconi was directing an investigation of Prosser. In light of the public's interest in its local schools, Marconi's report on the investigation, even if erroneous, fell within the scope of his duties as an Assistant Attorney for the Board. Thus, Marconi is entitled to absolute immunity against suit for making that statement. The court therefore dismisses Count V.
B. Count VII: Fourteenth Amendment Liberty Interest
In Count VII, Nagle alleges that defendants interfered with her liberty interest in the ability to gain employment at other schools and school districts to which she might wish to apply. She claims that defendants' actions have stigmatized and humiliated her, caused injury to her reputation and brought her mental anguish, emotional suffering and physical illness. Additionally, Nagle claims that she was deprived of that liberty interest without a hearing in violation of the Fourteenth Amendment Due Process Clause. Defendants move to dismiss this count for failure to state a claim under the Fourteenth Amendment. For the following reasons, the court grants the Defendants' motion on Count VII.
The Fourteenth Amendment imposes on the states certain procedural due process requirements. U.S. Const. amend. XIV, § 1. It is well established that, before depriving an individual of his or her Fourteenth Amendment liberty interest, the individual has a right to due process. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972). However, courts have limited the range of interests protected under the Fourteenth Amendment. Id. at 570.
As stated above, Nagle claims that her interest in gaining employment at other schools and school districts to which she might wish to apply is one of the liberty interests protected under the Fourteenth Amendment. She further asserts that defendants deprived her of that interest without due process. Nagle sets forth a two different theories in support of her liberty interest claim. First, she argues that she suffered stigma to her reputation which impairs her ability to seek employment at other schools and school districts. Second, Nagle asks the court to interpret her transfer as a refusal to rehire or discharge. Defendants contend that the Fourteenth Amendment does not afford protection of Nagle's claimed liberty interest. This court agrees.
In Paul v. Davis, the plaintiff claimed he was unconstitutionally deprived of his liberty interests when the police distributed flyers identifying him as a shoplifter.Paul v. Davis, 424 U.S. 693 (1976). He complained that as a result of this incident, his reputation was injured and his future employment opportunities impaired. Id. at 696-97. ThePaul court held that the Due Process Clause does not extend to a person the right to be free of injury wherever the State may be characterized as a tortfeasor. Id. at 701. Case law does not support "the proposition that reputation alone, apart from some more tangible interests such as employment, is either `liberty' or `property' by itself sufficient to invoke the procedural protection of the Due Process Clause."Id. The Court also noted that it "has never held that the mere defamation of an individual . . . was sufficient to invoke the guarantees of procedural due process absent an accompanying loss of government employment." Id. at 706 (emphasis added). The plaintiff's claim that the flyers injured his reputation, impairing his future employment opportunities was insufficient to trigger the liberty interest protection of the Due Process Clause. Id. at 712. Under the law established in Paul, unless defendants' employment actions did more than injure her reputation, Nagle's claim must also fail.
Even under Nagle's second theory, she has not alleged the deprivation of a liberty interest sufficient to warrant protection under the Fourteenth Amendment. In holding that the defendant did not deprive Roth, a non-tenured assistant professor, of a protected liberty interest when his contract was not renewed, the court in Roth also noted that "it stretches the concept too far to suggest that a person is deprived of `liberty' when he simply is not rehired in one job but remains free as before to seek another." Roth, 408 U.S. at 575 (citations omitted). Nagle was not terminated, nor did defendants fail to rehire her. She was transferred from her position as Prosser's principal to a position in the Board office.
The Supreme Court, clarifying the Roth decision, notes that "there is no suggestion in Roth to indicate that a hearing would be required each time the State in its capacity as employer might be considered responsible for a statement defaming an employee who continues to be an employee." Paul, 424 U.S. at 710. Of course, here Nagle continued to serve as an employee of the Chicago Public Schools after her removal as Prosser principal. So no due process requirements were triggered by her transfer.
Plaintiff also cites Perry v. Sindermann in support of her argument. In Perry, the Supreme Court found that a non-tenured professor whose contract was not renewed, without a hearing may have been deprived of a protected interest without due process in violation of the Fourteenth Amendment.Perry v. Sindermann, 408 U.S. 593, 602 (1972). The Court distinguished this case from Roth because in Perry, the college had an implied tenure policy. Id. at 600. If the professor could establish that under this policy he was entitled to continued employment, then he would be entitled to a hearing. Id. at 603. Of course, the instant case can be distinguished. Nagle did receive continued employment.
Building upon the reasoning discussed in Roth, the Seventh Circuit recently held that individuals have no protected interest in a particular job assignment. Gustafson v. Jones, 117 F.3d 1015, 1020 (7th Cir. 1997). In Gustafson, the plaintiffs-appellants claimed that they had been deprived of a protected interest when they were transferred to less prestigious jobs. Id. at 1016-17. Although the court recognized that plaintiffs might have an interest in continued employment, the court noted that they had not brought forth any evidence that they had a protected right to remain in their positions. Id. at 1020. Absent a showing that the state recognizes a property interest in maintaining a particular job assignment, Nagle's interest in remaining principal at Prosser was not protected by the Due Process Clause. Id.
Nagle's best hope can be found in Colaizzi v. Walker. While recognizing that stigma to reputation alone is not a deprivation of a liberty interest, the court stated that "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential."Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976). However, in the holding, the Colaizzi court falls in line with cases that construe the liberty interest narrowly and returns to the notion that to involve a liberty interest, injury to reputation must be accompanied by a decision not to rehire. The court suggests that only where "the decision not to rehire . . . is grounded on charges of immorality and dishonesty, notice and opportunity to be heard would . . . [be] required."Colaizzi, 542 F.2d at 972. Nagle was not terminated or removed solely because of false statements or charges of "immorality or dishonesty." In addition to not being terminated, Nagle's removal as principal resulted from defendants' investigation and ultimately, as plaintiff admits, defendants' decision to declare that Prosser was in "educational crisis." (4th Am. Compl. § 82.)
Since reputation alone, without some employment interest, is not a protected liberty, Nagle's Fourteenth Amendment claim must fail. Nagle does not claim that she was discharged or that the Defendants' refused to rehire her without a hearing. Furthermore, she continues to be employed by Board. Transfer is not equated with refusal to rehire or discharge. Therefore, Nagle has stated no material damage to an employment interest to accompany her claim of injury to reputation. The absence of such damage is fatal to her claim. Nagle has failed to state a liberty interest claim under the Fourteenth Amendment because there is no showing of discharge or failure to rehire. Therefore, the Defendants' motion with respect to Count VII is granted.
C. Count VIII: Tortious Interference with Contractual Relations
In Count VIII, Nagle claims tortious interference with contractual relationship against Harvey, Vallas, Hahn and Hansen. Nagle alleges that these Defendants prevented her from fulfilling the terms of her employment contract. The Defendants move to dismiss this Count of Nagle's complaint for failure to state a cause of action. For the following reasons, the Defendants' motion is granted on Count VIII.
Under Illinois law, to establish a prima facie case of tortious interference with contractual relationship, a plaintiff must plead the following: "(1) the existence of a valid and enforceable contract between plaintiff and another party; (2) that the defendant was aware of the contractual relationship; (3) an intentional and unjustified inducement of a breach of the contract by the defendant; (4) the subsequent breach by the other party, caused by defendant's inducement; and (5) damages." Williams v. Shell Oil Company, 18 F.3d 396, 402 (7th Cir. 1994) (citations omitted). The defendant's actions "that form the basis of tortious interference must be directed at [the party] other than the plaintiff" which caused that party to breach its contract with the plaintiff. Continental Mobile Tel. Co., Inc. v. Chicago SMSA Ltd. Partnership, 587 N.E.2d 1169, 1174 (Ill.App. Ct. 1992) (citations omitted).
Nagle never expressly alleges that either the LSC or the Board breached her employment contract. However, the facts she sets forth in the complaint amount to an allegation that the Board breached the contract by removing her without cause. (4th Am. Compl. ¶ 95-99.) It is well-established that no tort for interference with contract lies when plaintiff and defendant are also the parties to the contract at issue. "In order to maintain a cause of action for tortious interference with a contract . . . the tortfeasor must be a third party to the contractual relationship . . . `[I]t is indisputable that a party cannot tortiously interfere with its own contract.'" Quist v. Board of Trustees of Community College District No. 525, 258 Ill. App.3d 814, 821 (3d Dist. 1994). This rule strikes a fatal blow to Nagle's tortious interference with contract claim.
The parties dispute whether Nagle's employment contract was with the LSC or with the Board. The court agrees with defendants and finds that Nagle's contract was with the Board. The Uniform Principal Performance Contract at issue in this case expressly states that the agreement was entered into "by and between Prosser Vocational Local School Council As Agent of the Board of Education . . . and Noreen Mary Nagle." (4th Am. Compl., Ex. A.) As such, Nagle is alleging interference by the Board itself, not by a third party to her contract with the Board. Accordingly, she fails to plead an essential fact needed to maintain her claim for tortious interference with a contract. Therefore, the court grants defendants' motion to dismiss Count VIII.
See Lekkas v. Chicago Public Schools, No. 96 C 5378, 1997 WL 639055 (N.D. Ill. Oct. 3, 1997) (holding that because an LSC failed to directly select a new principal by the statutory deadline, an agreement signed by the plaintiff and LSC officers, as agents of the Board of Education, was not a valid or enforceable contract.) This case suggests that ultimately, the LSC is only an agent of the Board when it selects and contracts with a principal. Even if the court found that her contract was with the LSC and not the Board, Nagle's claim fails to satisfy another element required to allege tortious interference with contract. As noted above, to sustain a claim for tortious interference with contract, there must be a "subsequent breach by the other party, caused by defendant's inducement." Nagle does not allege that the LSC breached her contract. She claims the Board did, or alternatively, that the Board made it impossible for her to perform her duties under the contract. The law requires a showing that the other party, not the defendant and not the plaintiff, breached the contract.
D. Count X: Freedom of Political Expression and Association
In Count X, Nagle claims that by blocking her ability to perform her job and by initiating a campaign of harassment against her and others with whom she associated, defendants violated her First Amendment right to freedom of speech (political expression) and freedom of association. Defendants' move to dismiss this count and in support of the motion, assert two arguments. First, defendants argue that since it was not grounded in a matter of public concern, Nagle's the association with Klug, Cardenas and Sherrod-Carr is not protected by the First Amendment. Second, defendants contend that Nagle failed to allege that her speech and association were motivating factors behind any of defendants' actions. For the following reasons, this court grants in part and denies in part, defendants' motion to dismiss Count X.
In a freedom of expression case, the burden rests on the plaintiff to show that (1) his conduct was constitutionally protected and (2) that the protected conduct was a motivating factor in the state's action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Supreme Court established a threshold in determining whether speech by a public employee will be protected under the First Amendment: the free speech must be on an issue of public concern. Connick v. Myers, 461 U.S. 138, 146 (1983). In determining whether speech involved a matter of public concern, the content, form and context of the speech must be examined. Id. at 147-48.
To state a valid claim for a violation of the right to association, plaintiff must meet the same requirements as those for alleging violation of the right to free speech. The First Amendment does not explicitly list freedom of association as one of the protected freedoms. However, the courts have held that the rights explicitly listed in the First Amendment could not be properly protected against state interference unless "a correlative freedom to engage in group effort toward those ends were not also guaranteed." Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). Thus, the freedom of association can be derived from the First Amendment rights to free speech, assembly and petition."It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the `liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).
The right to freedom of association "protects an individual's ability to associate with others for the purpose of propagating and expressing ideas and beliefs, including political, social, economic, educational, religious, and cultural concerns." Marshall v. Allen, 984 F.2d 787, 800 (7th Cir. 1993). Although the circuits are split on the applicability of the Connick public concern test to freedom of association cases, the Seventh Circuit adopted it inGriffin v. Thomas, 929 F.2d 1210, 1212-13 (7th Cir. 1991) (finding that there is "no logical reason for differentiating between speech and association in applying Connick to first amendment claims").
Nagle has alleged the necessary elements to establish a freedom of association, but not a freedom of speech claim. To be actionable, the infringement on First Amendment rights need not be "great". Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). Once plaintiff alleges that she was engaged in constitutionally protected activity, she need not even allege that she lost her job. Allegations of harassment are considered state conduct and, if shown to be caused by plaintiff's exercise of a constitutional right, will satisfy the second prong of the Connick test. In Bart, plaintiff withstood defendants' motion to dismiss by alleging that defendants waged an entire campaign of harassment against her, following her unsuccessful bid for mayor. Id. The Seventh Circuit read into Bart's complaint suggestions that the "campaign of petty harassments was motivated by [plaintiff's] views. . . . [T]hat is all that is necessary to save this part of the complaint from being dismissed under 12(b)(6)." Id. at 625.
Nagle maintains that her association with Klug, Cardenas and Sherrod-Carr was to propagate the efficient operation of the school. (4th Am. Compl. ¶ 116). Given the public's interest in our public school systems, the efficient operation of the school is a matter of public concern. Therefore, Nagle has satisfied the first prong of the Connick analysis. Nagle also claims that defendants' campaign of harassment resulted from her association with Klug, Cardenas or Sherrod-Carr and their "concerted effort to make the school run smoothly." (4th Am. Compl. ¶ 114-117.) Under Bart, Nagle has pled charges sufficient to defeat defendants' motion to dismiss. The court, therefore, denies defendants' motion to dismiss Nagle's freedom of association claim under Count X.
Defendants argue that Nagle did not engage in protected activity and that the holding in Bart should be viewed with suspicion since that court "noted that plaintiff's claim was bordering on the absurd." (Defs. Mot. at 13, FN 3.) The court has already found that Nagle engaged in protected activity. In addition, the Bart court's comments concerning the ridiculousness of the plaintiff's charges do not overshadow the court's ultimate holding. The court clearly stated that even though "the effect on freedom of speech may be small [inBart], but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable." Bart, 677 F.2d at 625. Defendants also argue that Nagle failed to allege that her association was a motivating factor in the Board's and Vallas' decision to declare an educational crisis at Prosser. Although this is true, given her allegations of harassment under Bart, Nagle need not make such an allegation.
As to her freedom of speech claim, Nagle states in her complaint that certain defendants engaged in conduct intended to "chill her exercise of her First Amendment Right of Free Speech." (4th Am. Compl. ¶ 115). However, Nagle fails to identify any protected speech and to indicate that the speech involved a matter of public concern. Therefore, she has failed to establish a violation of her free speech right. The court grants defendants' motion to dismiss as to the freedom of speech/political expression claim.
E. Individual Defendants
Defendants move to dismiss all counts directed against individual defendants. In support of their motion, defendants cite the Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"), 745 ILCS 10-2/201 (1993). Alternatively, they argue that suits against the individuals in their official capacities are redundant and should be dismissed. The court grants defendants' motion to dismiss the counts against the individual defendants in their official capacities on the redundancy argument with respect to the remaining counts, Counts III and Count X, as to freedom of association.
Defendants' argument against Counts IV and VI will not be considered until Nagle has amended those counts. The court has granted defendants' motion to dismiss Counts V, VII, VIII and Count X, as to the freedom of speech claim and Count IX involves plaintiff's Title VII claim which is and can only be brought against an employer (in this case, the Board). See 42 U.S.C. § 2000e-2 (1994). Thus, the only remaining counts to which this motion applies are Count III and X, as to the freedom of association claim.
Defendants argue that suits against the individual defendants should be dismissed because each is immune under the Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"). 745 ILCS 10-2/201 (1993). The Tort Immunity Act provides that a "public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion." Id. Immunity under the Act is conditioned upon a showing of good faith. McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968).
In Counts III and X, Nagle alleges that the individual Defendants' acted in bad faith. In Count III, Nagle claims that the Defendants intentionally ignored then existing law requiring due process before removing her from her contracted position. (4th Am. Compl. ¶ 60.) In Count X, Nagle alleges that the Defendants harassing conduct was "punitive, deliberate, intentional, malicious, and calculated." (4th Am. Comp. ¶ 117). Therefore, defendants' motion to dismiss all counts against the individual defendants under the Tort Immunity Act is denied with respect to Counts III and X.
The court, however, grants defendants' motion to dismiss individual defendants under the redundancy argument. Defendants rightly assert that suits against local government officials in their official capacity are suits against the local government. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Where the official is sued individually in his official capacity and the unit of local government is also sued, "the suit against the official is redundant and should therefore be dismissed." Admiral Theatre v. City of Chicago, 832 F. Supp. 1195, 1200 (N.D. Ill. 1993) (citing Jungels v. Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987)).
Counts III and X appear to have been brought against all defendants, the Board and all individuals named as defendants. Nagle did not specify otherwise. Generally, in the absence of any express statement that the parties are being sued in their individual capacities, a § 1983 claim against individuals "is construed as a suit against the defendants in their official capacities only." Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990). However, where a complaint employs language suggesting that plaintiff sues defendants in their individual capacities and there is a claim for punitive damages or the defense of qualified immunity is raised, the courts have construed the complaint to sue defendants in their individual capacity. See, e.g., Armstrong v. Squadrito, 152 F.3d 564, 581 (7th Cir. 1998).
While Nagle did not indicate whether the individual defendants were being sued in their individual or official capacities, in one count, she does use language suggesting that she seeks punitive damages against the individual defendants. In Count X, she notes that defendants actions were "punitive, deliberate, intentional, malicious, and calculated." (4th Am. Compl. ¶ 117.) In Armstrong, the court read plaintiff's language and her request for punitive damages to mean that claims raised under § 1983 (Counts III and X) were brought against named defendants in their individual capacities. However, in response to defendants' motion, plaintiff does not even make the argument that she is suing named defendants in their individual capacity. Absent some indication by plaintiff that she is suing individual defendants in their individual capacity, the court can not take the interpretive step employed by the court inArmstrong. Since plaintiff's complaint, nor her response to defendant's motion suggests otherwise, the court finds that Nagle brings suit against individual defendants in their official capacity. As such, the court dismisses remaining Counts III and X, as they relate to individual defendants sued in their official capacity. Defendants' motion is granted.
F. MOTION TO STRIKE
Defendants move to strike paragraphs 30, 31, 34, 35, 37(b), 37(c), 37(g), 37(i), 37(j), 37(k), 37(l), 37(n), 37(o), 37(p), 38, 39(e), 39(f), 39(g), 39(h), 40 and 108 as irrelevant. Nearly all of these paragraphs contain allegations of misconduct against Sherrod-Carr, Klug or Cardenas and not against Nagle. The remainder contain only allegations of rewards to certain defendants and other individuals favored by the defendants, not any allegations of misconduct against Nagle. As such, defendants ask the court to strike them.
Nagle argues that the allegations contained therein arise out of the same transactions or occurrences or series of transactions or occurrences that are the subject of the claims. She also claims that the allegations of wrongdoing against her administrative staff are also relevant since her staff was harassed because of its association with her. This court denies the Defendants' motion to strike.
Federal Rule of Civil Procedure 12(f) provides that "any redundant, immaterial, impertinent, or scandalous matter" may be stricken from a pleading. Fed.R.Civ.P. 12(f). "Allegations may be stricken as scandalous if the matter bears no possible relation to the controversy or may cause the objecting party prejudice." Talbot v. Robert Matthews Distributing Co., 961 F.2d 654, 664 (7th Cir. 1992). Courts disfavor taking such action however. Drago v. Davis, No. 96 C 2398, 1996 WL 479696, *2 (N.D.Ill. Aug. 20, 1996) (citingTektel, Inc. v. Maier, 813 F. Supp. 1331, 1334 (N.D.Ill. 1992); Khalid Bin Talal Bin Abdul Azaiz Al Seoud v. E.F. Hutton Co., 720 F. Supp. 671, 686 (N.D.Ill. 1989); C.A. Wright A. Miller, Federal Practice Procedure § 1382 at 683 (2d ed. 1990). Thus, it is only appropriate to strike an allegation if that allegation has "`no possible relation to the controversy.'" Nissan Motor v. Schaumburg Nissan, No. 93 C 2701, 1993 WL 360426, *6 (N.D.Ill. 1993).
The allegations defendants seek to strike are sufficiently related to the claims in this case and will not be stricken. The allegations in these paragraphs relate most directly to Nagle's freedom of association claim. Although peripheral, all of the challenged allegations appear to be related to plaintiffs' freedom of association claim. Since this court cannot, at this juncture, say that these allegations are not relevant in any way to the controversy, the court will not strike Nagle's claims and denies defendants' motion to strike.
For the foregoing reasons, this court grants Nagle's request for leave to amend counts IV and VI. The court grants defendants' motion to Counts V, VII and VIII in their entirety. Defendants' motion to dismiss Count X is granted only with respect to Nagle's freedom of speech claim. The court also grants defendants' motion to dismiss Counts III and the remainder of Count X as to individual defendants sued in their official capacity. Finally, the court denies defendants' motion to strike certain paragraphs from Nagle's Fourth Amended Complaint. Accordingly, Nagle's remaining claims are in Count III, IV, VI, IX and X, as to the freedom of association claim.