Szczesny v. River Forest Village

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DANIEL J. SZCZESNY,

Plaintiff,

No. 20 CV 5661

v.

Judge Manish S. Shah

VILLAGE OF RIVER FOREST, et al.

Defendants.

MEMORANDUM OPINION AND ORDER

Daniel Szczesny was a Village of River Forest police officer and the president

of the local police union. Near the end of his tenure in both roles, the Village added a

new squad car to its fleet. Szczesny and other officers had problems with the car and

complained within the police department. Dissatisfied with the response, Szczesny

and the union board wrote a letter to the chief of police expressing concerns about the

car’s risks to officer and community safety. Szczesny claims that he faced retaliation

for this letter. He brings First Amendment retaliation claims under § 1983 against

the Village, Police Chief James O’Shea, Sergeants Michael Swierczynski, Martin

Grill, and Justin Labriola, and Human Resources Director Lisa Scheiner. He also

brings claims against the Village, O’Shea, and Scheiner for defamation per se and

intentional interference with a prospective economic advantage under Illinois law,

and against the Village under the Illinois Personnel Record Review Act, 820 ILCS

40/1 et seq. Defendants move to dismiss all claims under Federal Rule of Civil

Procedure 12(b)(6). The motion is granted in part and denied in part.

I. Legal Standards

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

a right to relief. Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege facts that “raise

a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007). I accept all factual allegations as true and draw all reasonable

inferences in Szczesny’s favor, but I disregard legal conclusions or “threadbare

recitals” supported by only “conclusory statements.” Iqbal, 556 U.S. at 678.

II. Facts

Szczesny became a Village of River Forest police officer in 2013. [1] ¶ 16.1

About five years later, Szczesny became the president of the River Forest branch of

the Fraternal Order of Police. Id. ¶ 26. As union president, Szczesny advocated for

union members on assignments and pay, and raised issues about the department’s

administration, policies, and procedures. Id. ¶¶ 30, 34.

In June 2019, Sergeant Grill sent a department-wide email advising officers of

a newly acquired squad car. Id. ¶ 40. The first time Szczesny used it, he was unable

to get the car to shift into drive when trying to pull out of a parallel-parking space

behind the police station; the second time, Szczesny was unable to shift into drive and

respond to an in-progress police call for service. Id. ¶¶ 42–43. The culprit, Szczesny

concluded, was the new vehicle’s “Auto Park” software, which “effectively disabled

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers

are taken from the CM/ECF header placed at the top of filings. Facts are taken from the

complaint, [1].

the vehicle, preventing the transmission from engaging and stopping the vehicle from

being shifted into drive.” Id. ¶¶ 44–45.

Szczesny sent an email to the department detailing the problems with the Auto

Park feature and explaining potential problems that the program might pose for

officers when responding to in progress calls, assisting other officers in distress, or

being able to quickly maneuver the vehicle in a potential ambush attack; Szczesny

recommended that the department take the car out of service until the problems could

be addressed. Id. ¶¶ 46–47; [18-2] at 1. Sergeant Grill responded to the email and

explained the purpose of the program and its value, but he did not address the officer

safety concerns Szczesny raised, and the vehicle remained in service. [1] ¶¶ 49–51.

Thirteen other officers came to Szczesny with similar safety concerns about the

vehicle. Id. ¶ 52. The officers “expressed alarm that the Village would not take the

vehicle out of service when its performance was inconsistent and a represented a

danger to public and officer safety.” Id.

After weeks of back-and-forth with department management over the vehicle’s

problems, see id. ¶¶ 46–49, 53–58, 68, Szczesny and the union’s executive board

worked on a letter to Chief O’Shea “to document the concerns of union members

regarding the Department and Village’s lack of concern for public and officer safety.”

Id. ¶ 70. The final letter “expressed the union’s concern with the way in which the

situation was handled; mainly ordering officers to use a vehicle that posed a safety

risk to themselves and the public.” Id. ¶ 78. The union submitted the letter, backed

by the union’s board and printed on FOP letterhead, to O’Shea. Id. ¶ 75.

The next day, Grill posted a five-page response on the union cork board,

claiming that O’Shea and the administration had focused on the safety of officers

from the moment the officers raised issues about the vehicle. Id. ¶ 79. Grill’s response

also ridiculed officer complaints, downplayed the issue, and personally attacked the

union’s leadership. Id. ¶ 80. The day after Grill posted the administration’s response,

the union posted a copy of its letter to O’Shea on the cork board. Id. ¶ 82.

Szczesny alleges that he was retaliated against after the union sent the letter

to O’Shea. Sergeant Labriola, for example, falsely accused Szczesny of filing an

inaccurate report in an investigation. Id. ¶ 86. Over the next few days, Szczesny

received a hostile email from Labriola, and he accused Szczesny of putting false

information into a police report. Id. ¶¶ 87–88. O’Shea, for his part, sent an email to

the entire union executive board demanding a retraction of the letter and warning:

“You, as the executive board members of the board and authors of the letter, will have

until Monday at 5pm to retract your letter, apologize, and ask appropriately for a

meeting with the vehicle officer and Chief of Police.” Id. ¶ 88. O’Shea met with the

union’s labor representative and issued the same demand for a retraction, this time

backed by a threat: without a retraction, “internal investigations into the union board

will be initiated,” and “Szczesny was going to be investigated for suspicion of lying in

the union letter and in police reports, and that Szczesny should quit the Department.”

Id. ¶¶ 93, 97. O’Shea also threatened to report Szczesny to the Cook County State’s

Attorney’s Office, the law school Szczesny was attending, the Law Enforcement

Training and Standards Board, and the Illinois Bar Association for being untruthful.

Id. ¶ 95. O’Shea told the representative “that he was not certain if Szczesny would

even be able to become an attorney unless the union retracted the letter and Szczesny

quit.” Id. If Szczesny resigned, however, O’Shea said other members of the union

board would be spared further discipline. Id. ¶¶ 95–96.

On several occasions, Sergeant Swierczynski and Chief O’Shea pressed

Szczesny to reveal to them the names of the officers who anonymously complained

about the vehicle. Id. ¶ 92. When Szczesny refused and invoked the employee-union

representative privilege, Swierczynski responded “in a threatening and retaliatory

manner,” accused Szczesny of lying in response to his inquires, and concluded that

“there will be no more emails/memos between you and me on these matters. I will be

reviewing your responses and other available information … [and] making

recommendations to the Chief of Police.” Id. ¶ 94. Several sergeants, including

Swierczynski, Labriola, and Grill, also publicly posted a letter personally attacking

the union board and singling out Szczesny by name. Id. ¶ 100. By mid-September (a

few weeks after Szczesny and the union’s letter about the new squad car), O’Shea

informed the union representative that investigations would be moving forward

against Szczesny and the board, and the Chief continued to insist on the retraction of

the letter and Szczesny’s resignation. Id. ¶¶ 101–07. On October 1, 2019, after

months of such threats, Szczesny resigned from the department. Id. ¶ 110.

The week after he resigned, Szczesny requested his personnel file. Id. ¶ 113.

Lisa Scheiner, the Village’s Assistant Administrator and Human Resources Director,

provided Szczesny an accounting of his final payout, an offer to provide a full and

accurate accounting of his belongings, and acknowledged his request for his file. Id.

¶ 114. Szczesny did not receive his personnel file until late October, three weeks after

he submitted his request. Id. ¶ 116. The file included an October 2, 2019 memo from

O’Shea to Scheiner that made false allegations against Szczesny; it falsely stated that

Szczesny had been the subject of three internal investigations since August 2019, and

that he had been placed on administrative leave on October 2—the day after his

resignation had taken effect. Id. ¶¶ 117–19. Szczesny asked the Village to remove the

false documents, but it did not do so until December. Id. ¶¶ 130–32. When Szczesny

received an updated copy his file, he believed that it included documents that violated

the Illinois Personnel Record Review Act and were either false or cherry-picked to

make him look bad. Id. ¶¶ 148–52. Szczesny submitted a rebuttal and supplemental

documents to correct the record in February 2020, but the Village did not provide him

with a corrected copy of the file until June. Id. ¶¶ 153, 157.

By then, Szczesny had been disqualified or otherwise passed up for jobs with

three other police departments, including Crystal Lake and Oak Brook. Id. ¶ 158. As

part of Crystal Lake’s background-investigation process, a representative met with

O’Shea, who falsely told the representative that Szczesny had been the subject of

three internal investigations, “did not make good” on repaying officers who had

worked for him, and lied in a police report. Id. ¶¶ 124–26, 128–29. O’Shea also falsely

said that the Cook County State’s Attorney’s Office was dropping all of Szczesny’s

active cases. Id. ¶ 127. Crystal Lake later informed Szczesny that he was no longer

being considered for a job based on the information the Village provided. Id. ¶ 134.

Later, HR Director Scheiner met with Oak Brook’s investigator and showed

him false documents pertaining to the three alleged investigations into Szczesny.

¶¶ 139–43. Although the remainder of the Oak Brook investigator’s report was

positive, he listed these allegations as “integrity violations,” “lying in his official

capacity,” “unreasonable use of discretion,” and failure to obey orders. Id. ¶¶ 145–46.

The Oak Brook Police Department notified Szczesny that he had been disqualified

from the hiring process because he failed “to pass the character and background

requirement of the testing process.” Id. ¶ 147.

Szczesny alleges that defendants’ actions reflect a Village policy, custom, or

pattern of targeting union board members with investigations and harsher discipline

by sergeants, the department, and the Village administration. Id. ¶¶ 159, 178.

Szczesny asserts that the defendants violated his First Amendment rights when they

retaliated against him. Id. ¶¶ 173, 177. He brings (1) First Amendment retaliation

claims against all defendants under § 1983; (2) state-law claims for defamation per

se and intentional interference with a prospective economic advantage against the

Village, O’Shea, and Scheiner; and (3) a claim under the Illinois Personnel Record

Review Act against the Village.

III. Analysis

A. First Amendment Retaliation

To state a First Amendment retaliation claim, a public employee “must first

establish that his speech was constitutionally protected.” Lett v. City of Chicago, 946

F.3d 398, 400 (7th Cir. 2020). The First Amendment does not protect run-of-the-mill

employee grievances, but a public employee maintains First Amendment rights “in

certain circumstances, to speak as a citizen addressing matters of public concern.”

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). A public employee must therefore

allege that “(1) he made the speech as a private citizen, [and] (2) the speech addressed

a matter of public concern.” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013)

(citing Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008)). Defendants argue

that Szczesny’s First Amendment retaliation claims fail because he spoke as an

employee regarding a private interest, not as a private citizen on a public concern.

1. Private Citizen

Szczesny has sufficiently alleged that he spoke as a private citizen. If a public

employee speaks “pursuant to [his] official duties,” then he is speaking as an

employee and not a private citizen, and his speech is not constitutionally protected.

Garcetti, 547 U.S. at 421. The question is “whether the speech ‘owes its existence to

a public employee’s professional responsibilities.’” Lett, 946 F.3d at 400 (quoting

Garcetti, 547 U.S. at 421). But if “the public employee is speaking in his capacity as

a union representative, [then] he is speaking as a citizen.” Graber v. Clarke, 763 F.3d

888, 895 (7th Cir. 2014). Here, the complaint plausibly alleges that the union’s August

letter to O’Shea—co-authored by Szczesny in his capacity as the union’s president

and on union letterhead—was private-citizen speech outside of Szczesny’s official

duties. See Olendzki v. Rossi, 765 F.3d 742, 747 (7th Cir. 2014) (“Our circuit has

consistently held that when a public employee speaks in his capacity as a union

official, his speech is not within the purview of his ‘official duties.’”). Defendants say

that the union’s August letter is “without consequence” because Szczesny initially

reported the vehicle’s problems in his July email “as a patrol officer and not through

the channels of the police union.” [18] at 5. But whether Szczesny initially complained

in his capacity as an employee or not, the complaint alleges facts that reasonably

suggest Szczesny faced retaliation because of his speech as the union’s president. I

draw that inference in his favor at this stage.

2. Public Concern

Even when speaking as a private citizen, however, an employee’s speech is

protected only if it addresses a matter of public concern. A public concern is something

that is of “legitimate news interest,” or addresses “a subject of general interest and of

value and concern to the public at the time of publication.” Kubiak v. City of Chicago,

810 F.3d 476, 482 (7th Cir. 2016) (quoting Meade v. Moraine Valley Cmty. Coll., 770

F.3d 680, 684 (7th Cir. 2014)). “Whether an employee’s speech addresses a matter of

public concern must be determined by the content, form, and context of a given

statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147–48

(1983). Content is the most important factor. See Kubiak, 810 F.3d at 483. Motive

may be relevant, but it is not dispositive, and even if the speaker has a personal

motive, “if an objective of the speech was also to bring about change with public

ramifications extending beyond the personal, then the speech does involve a matter

of public concern.” Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 986 (7th Cir. 2013);

see also Adams v. Bd. of Educ. of Harvey Sch. Dist. 152, 968 F.3d 713, 716 (7th Cir.

2020) (a mixed motive does not render speech unprotected). In the end, courts

consider the three Connick factors to determine “the point of the speech in question:

was it the employee’s point to bring wrongdoing to light? Or to raise other issues of

public concern, because they are of public concern? Or was the point to further some

purely private interest?” Kristofek, 712 F.3d at 985 (quoting Linhart v. Glatfelter, 771

F.2d 1004, 1010 (7th Cir. 1985)); see also Adams, 968 F.3d at 716 (the question is

“whether the speech concerns public affairs as Connick understands the

public/private distinction”).

Generally, a police officer’s “speech that addresses questions of public safety

and police protection” involves “matters of vital public concern.” See Campbell v.

Towse, 99 F.3d 820, 828 (7th Cir. 1996); Auriemma v. Rice, 910 F.2d 1449, 1460 (7th

Cir. 1990) (“It would be difficult to find a matter of greater public concern in a large

metropolitan area than police protection and public safety.”). An officer’s speech is of

public concern when it addresses “the manner in which the police would serve the

public,” but not when speech merely addresses inside matters pertaining to work

conditions, such as a change in equipment allocation. See Kuchenreuther v. City of

Milwaukee, 221 F.3d 967, 975 (7th Cir. 2000).

The union letter here frames the problems with the vehicle as “a significant

issue of officer and public safety.” [21-1] at 1.2 The union board detailed problems that

the car’s “Auto Park” software caused not just for Szczesny, but for multiple other

officers as well. Id. at 1–4; [1] ¶ 52. The letter expressed fear for the officers’ ability

2 Szczesny attaches the letter to his response brief, see [21-1], which I consider at this stage

because it is “critical to the complaint and referred to in it.” See Geinosky v. City of Chicago,

675 F.3d 743, 745 n. 1 (7th Cir. 2012); [1] ¶ 78.

to respond to in-progress calls and claimed, for example, that one officer was unable

to effectively respond “to an in-progress-15-person fight” because the “Auto Park”

system locked the car in park. [21-1] at 3–4. Chief O’Shea brushed aside these safety

concerns and, according to the letter, ordered officers to continue using the vehicle.

Id. at 3. Szczesny and the union board concluded: “We hope that in the future, a more

appropriate response will be issued when officer safety concerns are presented to the

Administration, and the Administration will work with, and not ridicule the ‘false

expertise’ of its officers.” Id. at 7.

Reading the complaint in a light most favorable to Szczesny, he has plausibly

alleged that the union letter addressed a matter of public concern. The letter directly

tied the vehicle’s problems—and the administration’s indifference to them—to

broader officer and public safety concerns. The letter is not just Szczesny’s personal

grievance written on union letterhead. It is an effort by Szczesny and the union board

to alert the department to an issue of public and officer safety.

Defendants arguments to the contrary are unpersuasive. They say the form

(internal communications) and context (ongoing dialogue between officers and

command about the vehicle) suggest that this was a private work issue. [18] at 7. As

for content, defendants hang their hat on Kuchenreuther v. City of Milwaukee, 221

F.3d 967 (7th Cir. 2000), which held, in relevant part, that an officer’s speech

criticizing a police chief’s policy of allowing officers to carry only one set of handcuffs

was not a matter of public concern. Id. at 974–75. Defendants read Kuchenreuther to

say that “complaints regarding department equipment” are never matters of public

concern. [24] at 5.

But Kuchenreuther is not so broad, and other cases acknowledge that speech

about police resource allocation can be protected. See Campbell, 99 F.3d at 828

(“Issues involving the proper allocation of police patrols and other departmental

resources to various communities in a city are questions of serious public import.”).

The court in Kuchenreuther concluded that “[a]fter reviewing the record in this case,

we are convinced that Kuchenreuther did not address the manner in which the police

would serve the public.” Kuchenreuther, 221 F.3d at 975. Here, by contrast, Szczesny

spoke on matters of safety and how the department would serve the public (through,

among other things, safely and effectively responding to in-progress calls)—or so one

can infer at this stage of the case. Whether Szczesny’s complaint about the car’s

software and its corresponding effect on police performance is more like

Kuchenreuther’s problem with having one set of handcuffs or Campbell’s concern over

the efficacy of a patrol program requires factual development. And while the letter

was an internal document, First Amendment protection is not lost to “the public

employee who arranges to communicate privately with his employer rather than to

spread his views before the public.” Givhan v. W. Line Consol. Sch. Dist., 439 U.S.

410, 415–16 (1979). Szczesny has sufficiently alleged that he was speaking on a

matter of public concern. Cf. Kristofek, 712 F.3d at 983 (liberal construction of

complaint’s allegations to find public concern should not “be read to prejudge whether

the evidence will show that [plaintiff’s] claims … are meritorious”).

3. Retaliation Claims Against Swierczynski and Scheiner

In the alternative, defendants argue that even if Szczesny’s speech is entitled

to constitutional protection, he has failed to allege that defendants Scheiner and

Swierczynski participated in the retaliation against him. While Szczesny engaged in

constitutionally protected speech, he must also show that each defendant, as a public

official, “engaged in adverse conduct against him” and was “motivated, at least in

part, by his protected speech.” Bivens v. Trent, 591 F.3d 555, 559 (7th Cir. 2010). To

constitute adverse conduct, a defendant’s actions must “likely deter a person of

ordinary firmness from continuing to engage in protected activity.” Surita v. Hyde,

665 F.3d 860, 878 (7th Cir. 2011). Whether retaliatory conduct reaches this threshold

is generally a question of fact. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).

Yet “when the asserted injury is truly minimal,” a court “can resolve the issue as a

matter of law.” Douglas v. Reeves, 964 F.3d 643, 647 (7th Cir. 2020).

The complaint sufficiently puts Swierczynski on notice of Szczesny’s First

Amendment retaliation claim. The complaint alleges that Swierczynski “pressed

[Szczesny] to reveal … the names of officers who complained about the vehicle” and

when Szczesny rebuffed those efforts, Swierczynski responded in a “threatening and

retaliatory manner.” [1] ¶¶ 92, 94. And, along with other sergeants, Swierczynski

publicly posted a letter attacking Szczesny by name. [1] ¶ 100. It is reasonable to infer

that Swierczynski’s communications were in response to the union’s letter: Szczesny

raised the anonymous complaints in the letter, and Swierczynski then pressed

Szczesny to name names; Swierczynski’s hostility to Szczesny traces to the union

letter. His conduct—a sergeant pressing an officer to reveal his sources, threatening

to accuse the officer of falsehoods to the chief, and cutting off discussion—plausibly

suggests the kind of conduct that would deter a reasonable person from holding or

expressing his protected views. See Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d

527, 534 (7th Cir. 2006) (campaign of minor harassment can be sufficient to deter the

exercise of free speech); DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir.

1995) (petty harassment that includes minor retaliation and false accusations can be

actionable under the First Amendment); see also Pieczynski v. Duffy, 875 F.2d 1331,

1333 (7th Cir. 1989) (“Harassment of a public employee for his political beliefs

violates the First Amendment unless the harassment is so trivial that a person of

ordinary firmness would not be deterred from holding or expressing those beliefs.”).

True, Szczesny does not provide many details of his communications with

Swierczynski, but that is not required at this stage. When discovery reveals these

communications in more detail, Szczesny will have to prove—at summary judgment

or trial—that Swierczynski’s conduct would deter a person of ordinary firmness from

speaking and that it was motivated by the union letter (not routine employment

grievances). But the complaint puts Swierczynski on sufficient notice of the claims

against him to survive dismissal.

The same cannot be said for Szczesny’s retaliation claim against Scheiner. The

complaint does not raise a reasonable inference that Scheiner had any knowledge of

the union letter or took any adverse action due to Szczesny’s protected speech.

Szczesny argues that Scheiner provided false information to prospective employers,

and that because Scheiner is employed as an Assistant Village Administrator, his

allegations that the Village Administration engaged in retaliatory conduct also apply

to her. [21] at 14–15. But conclusory allegations aside, the complaint does not

plausibly allege that Scheiner knew about the union letter or that the information in

the file was false, let alone that after Szczesny had left the department, she

intentionally provided the false information to retaliate against him because of the

letter. The allegations against Scheiner are too attenuated from the speech at issue—

too speculative—to raise a reasonable inference that her actions violated Szczesny’s

First Amendment rights.

In sum, the complaint sufficiently alleges that Szczesny’s speech was entitled

to constitutional protection, but it does not plausibly allege that Scheiner participated

in any retaliatory conduct. Count I is dismissed with respect to Scheiner, but it

survives against all other defendants.

B. State Tort Claims

Szczesny next alleges that the Village, O’Shea, and Scheiner are liable for

defamation per se and intentional interference with a prospective economic

advantage.

1. Defamation Per Se

To state a claim for defamation, a plaintiff must show that “the defendant

made a false statement about the plaintiff, the defendant made an unprivileged

publication of that statement to a third party, and the publication caused damages.”

Hadley v. Doe, 2015 IL 118000, ¶ 30. “A statement is defamatory per se if its harm is

obvious and apparent on its face.” Id. Under Illinois law, statements that impute “an

inability to perform or want of integrity in performing employment duties” or “a lack

of ability or that otherwise prejudice a person in his or her profession” are defamatory

per se. Tuite v. Corbitt, 224 Ill.2d 490, 501 (2006). Here, Szczesny asserts that O’Shea

and Scheiner made intentionally false statements to third parties (Crystal Lake and

Oak Brook)3 that imputed an inability to perform his job or a lack of integrity to

discharge his duties as an officer. [1] ¶¶ 182–188.

Defendants counter that they are immune from the defamation claim.

Immunity is an affirmative defense that the complaint need not anticipate. See Elliott

v. Thomas, 937 F.2d 338, 345 (7th Cir. 1991); see also Brownmark Films, LLC v.

Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012). A court should refrain from

granting a Rule 12(b)(6) motion on affirmative defenses unless “the allegations of the

complaint itself set forth everything necessary to satisfy the affirmative defense.”

United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005); see also Brownmark Films,

682 F.3d at 690. The complaint does so here.

Illinois law shields the Village from defamation suits. Under the state’s Tort

Immunity Act, “[a] local public entity is not liable for injury caused by any action of

its employees that is libelous or slanderous or for the provision of information.” 745

3 Defendants posit that any claims arising from conduct during the Oak Brook or Crystal

Lake background investigations must be dismissed because Szczesny executed releases with

those municipalities regarding any claims arising out of the investigations. [18] at 21–22.

Defendants also attach the releases to their brief supporting the motion. Unlike the union

letter, I do not consider the releases because (1) they are not central to plaintiff’s claim and

(2) release is an affirmative defense that the complaint need not anticipate. See Fed. R. Civ.

P. 8(c)(1).

ILCS 10/2-107. In other words, the Act “gives public entities blanket immunity

against defamation claims.” Heckenbach v. Bloomingdale Fire Prot. Dist., No. 19-CV-

2877, 2020 WL 5763600, at *7 (N.D. Ill. Sept. 28, 2020); see also Horwitz v. Bd. of

Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 617 (7th Cir. 2001) (local public

entities may not be sued for defamatory remarks in Illinois). As such, the defamation

claim against the Village fails.

O’Shea and Scheiner are immune from the defamation claim too. Section 2-210

of the Tort Immunity Act provides that “[a] public employee acting in the scope of his

employment is not liable for an injury caused by his negligent misrepresentation or

the provision of information.” 745 ILCS 10/2-210. The question here, as in all

defamation cases against local employees under Illinois law, is whether O’Shea and

Scheiner “were acting within the scope of their official duties when they made the

alleged statements in question.” Horwitz, 260 F.3d at 617. If the answer is yes, then

the public employee has absolute immunity, and “even if a statement is defamatory,

under Illinois law, the defendants would have immunity for their statements made

within the scope of their authority.” Klug v. Chicago Sch. Reform Bd. of Trustees, 197

F.3d 853, 861 (7th Cir. 1999).

O’Shea and Scheiner were acting within the scope of their official duties when

they made the alleged defamatory statements. The complaint does not plausibly

suggest—and Szczesny does not argue in his brief—that O’Shea’s and Scheiner’s

statements to his prospective employers were made outside the scope of their

authority. In fact, the face of the complaint establishes the opposite—both Scheiner

and O’Shea were acting under Village authority “with regard to [their] acts and

conduct alleged herein.” [1] ¶¶ 7, 9.

Szczesny advances only one argument against immunity—O’Shea and

Scheiner intentionally provided false information and “Section 2-210 only immunizes

misrepresentations that are made negligently.” [21] at 17–18. The latter assertion is

incorrect. Because O’Shea’s and Scheiner’s statements were made within the scope of

their duties, they enjoy absolute immunity from defamation suits, which “cannot be

‘overcome by a showing of improper motivation or knowledge of the statement’s

falsity, including malice.’” Horwitz, 260 F.3d at 618 (quoting Klug, 197 F.3d at 861);

see also Heckenbach, 2020 WL 5763600 at *8 (if within scope of authority, even

allegations that defendants’ “‘conduct was willful, wanton, malicious, and ... made

with actual malice’ doesn’t save the day”).

Because Szczesny’s factual allegations “unambiguously establish all the

elements of” defendants’ statutory immunity defense, see Hyson USA, Inc. v. Hyson

2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016), Count II is dismissed.

2. Intentional Interference with a Prospective Economic Advantage

A plaintiff bringing a claim for intentional interference with a prospective

economic advantage must allege: “(1) a reasonable expectancy of entering into a valid

business relationship, (2) the defendant’s knowledge of the expectancy, (3) an

intentional and unjustified interference by the defendant that induced or caused a

breach or termination of the expectancy, and (4) damage to the plaintiff resulting

from the defendant’s interference.” Anderson v. Vanden Dorpel, 172 Ill.2d 399, 406–

07 (1996). Some forms of interference are privileged, and when that’s the case, “the

plaintiff bears the burden of proving that the defendant’s conduct was malicious.”

Delloma v. Consolidation Coal Co., 996 F.2d 168, 171 (7th Cir. 1993). In tortious

interference cases, “an employer may invoke a conditional privilege to respond to

direct inquiries by prospective employers.” Id. at 171–72. But the plaintiff can

overcome the privilege if he shows that the defendant’s conduct is malicious; that is,

“if the defendant acts ‘intentionally and without justification.’” KMK Grp., LLC v.

Helco Corp., 380 F.Supp.3d 790, 799 (N.D. Ill. 2019) (quoting Delloma, 996 F.2d at

171). Illinois law does not offer a clear answer on “whether privilege must be asserted

as an affirmative defense or whether the plaintiff must prove that no privilege

applies, but there is no need to resolve that question at the pleading stage if the

plaintiff’s ‘allegations overcome the privilege.’” KMK Grp., 380 F.Supp.3d at 799

(quoting Webb v. Frawley, 906 F.3d 569, 578 (7th Cir. 2018)).

Here, defendants contend that the intentional interference claim must be

dismissed as to all defendants “because employers are privileged with regard to

reference checks, and [Szczesny] has not sufficiently alleged any facts to overcome

that privilege.” [18] at 17. They also argue that the claim against Scheiner should be

dismissed because Szczesny has not alleged that Scheiner purposefully interfered

with an expectancy. Szczesny counters that he has adequately alleged that O’Shea

and Scheiner provided false information to Crystal Lake and Oak Brook “and

knowingly and willfully, with intent to injure [Szczesny], acted with actual malice, or

acted in reckless disregard of the truth.” [21] at 21.

Szczesny has sufficiently alleged that O’Shea acted with actual malice. The

complaint alleges that O’Shea met with the representative from Crystal Lake and

falsely claimed that (1) Szczesny was the subject of three internal investigations

during his final months with the force, (2) Szczesny had lied in a police report, (3) the

Cook County State’s Attorney’s Office was dropping all of Szczesny’s active cases, and

(4) Szczesny “did not make good” on repaying officers who worked for him. [1] ¶¶ 124,

125, 127, 129. Szczesny has plausibly alleged that O’Shea’s series of falsehoods

impugning his character amounted to an intentional and unjustified effort to sink his

chances with a prospective employer. So the claim against O’Shea survives.4

Count III is dismissed as to Scheiner, however, because the complaint does not

plausibly allege that she purposefully interfered with Szczesny’s job opportunities.

The complaint alleges that Scheiner met with a background investigator from Oak

Brook and showed him false documents pertaining to internal investigations into

Szczesny. Id. ¶¶ 137–143. But the complaint does not allege that Scheiner did

anything more than provide the investigator with Szczesny’s file, which happened to

contain some false information. The complaint does not allege that Scheiner knew

the file contained false documents, played any role in creating the documents, or had

any intent or reason to interfere with Szczesny’s opportunity with Oak Brook.

Accordingly, the intentional interference claim against Scheiner is dismissed.5

4 The Village does not present any argument for its dismissal from the intentional-

interference claim, so it remains a defendant.

5 Defendants also ask that I strike Szczesny’s prayer for punitive damages in Counts II and

III, arguing that they are immune from punitive damages under 745 ILCS 10/2-102 and 745

ILCS 2-213. I’ve dismissed Count II against all defendants and Count III against Scheiner.

For the remaining Count III claims, the type of relief to which Szczesny may be entitled (if

C. Illinois Personnel Record Review Act

Szczesny also brings a claim against the Village under the Illinois Personnel

Record Review Act, 820 ILCS 40/1 et seq., for failing to timely provide his personnel

file. Defendants move to dismiss this claim because the complaint does not allege that

Szczesny exhausted administrative remedies with the Illinois Department of Labor.

But failure to exhaust administrative remedies is an affirmative defense that the

complaint need not anticipate. See Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.

2002) (“Failure to exhaust administrative remedies is an affirmative defense.”); see

also Mosely, 434 F.3d at 533 (plaintiff has no obligation to allege facts negating an

affirmative defense in complaint when there is nothing on the face of complaint “that

compels a conclusion that she failed to exhaust”). The complaint does not demonstrate

failure to exhaust on its face and dismissal of the claim on that basis is unwarranted.

IV. Conclusion

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

denied in part. The motion is granted as to the First Amendment retaliation claim

against Scheiner, the defamation per se claims against Scheiner, O’Shea, and the

Village, and the intentional-interference claim against Scheiner. These claims are

dismissed without prejudice. See Runnion ex rel. Runnion v. Girl Scouts of Greater

Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th Cir. 2015) (an initial dismissal for failure

to state a claim should be without prejudice, and a plaintiff “should be given at least

any) is a matter that I leave for another day. See Fed. R. Civ. P. 54(c) (every final judgment

should grant the relief to which each party is entitled, even if the party has not demanded

that relief in its pleadings).

one opportunity to try to amend her complaint before the entire action is dismissed”).

As to the remaining claims, the motion is denied. The defendants, other than

Scheiner, shall file an answer to the complaint by June 28, 2021. The parties shall

file a status report with a proposal for a discovery schedule by July 6, 2021.

ENTER:

Manish 8. Shah

United States District Judge

Date: June 7, 2021

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