Inendino v. Nance-Holt

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAM INENDINO,

Plaintiff, No. 22 C 04982

v. Judge Thomas M. Durkin

LORI LIGHTFOOT, ANNETTE NANCE-

HOLT, AND CITY OF CHICAGO,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Sam Inendino (“Inendino”) alleges that Chicago Mayor Lori Lightfoot,

Chicago fire commissioner Annette Nance-Holt, and the City of Chicago (collectively,

“Defendants”) violated his First Amendment rights when he was terminated from his

position with the Chicago Fire Department (“CFD”) for statements he made on his

private Facebook page. Defendants now move to dismiss. R. 12, 13, 17. For the

following reasons, the Court grants Lightfoot’s motion to dismiss Count I against her,

grants the City’s motion in part and denies it in part, and denies Nance-Holt’s motion

in full.

LEGAL STANDARD

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

BACKGROUND

Inendino was employed as a Chicago firefighter and EMT beginning in May

2005. R. 1 at ¶¶ 7–8. He served as a firefighter with Engine 54 and Truck 20 in the

Englewood neighborhood of Chicago without incident for sixteen years until he was

terminated on June 8, 2021. Id. ¶¶ 8, 14, 18. Inendino was well-respected within his

workplace, acted as the cook in the firehouse, and never had any complaints against

him by the public until the incidents at issue. Id. ¶¶ 19–22.

On June 8, 2021, Inendino was fired for speech he engaged in on his personal

Facebook account. Id. ¶ 15. The Facebook activity that led to his termination was

compiled in an OIG report.1 Id. ¶ 24. The OIG report noted that Inendino’s Facebook

profile stated he was a “Firefighter at Chicago Fire Department” and was publicly

available to any Facebook user. R. 12-2 at 4. His profile photos in 2019 and 2020

depicted him and his minor son wearing firefighter paraphernalia and sitting in front

of a fire truck. Id. In October 2019, Inendino commented on a Hispanic person’s post

which complained about the poster’s brother’s treatment by a Chicago Police

Department lieutenant. Id. at 5. After some back and forth, Inendino stated, “Your

comments are all weak… can’t talk I have to go to work to pay for all your scumbag

kids that you welfare fucks keep having,” and “[ . . .] that’s a good come back… NOT

get all HOOD on me YO… take your ass back over the border where ya belong… gotta

1 A Rule 12(b)(6) motion “can be based only on the complaint itself, documents

attached to the complaint, documents that are critical to the complaint and referred

to in it, and information that is subject to proper judicial notice.” Tobey, 890 F.3d at

648 (citing Fed. R. Civ. P. 10(c)). The exception for documents referenced in and

central to a complaint is a “narrow” one, “aimed at cases interpreting, for example, a

contract.” Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). The portions of

the OIG report which Defendants attach to their motion falls within this narrow

exception. Inendino references the OIG report in his Complaint (see R. 1 ¶ 24), and it

is central to Inendino’s claims because it led to his termination—which forms the

basis of his First Amendment claim. The Court further takes judicial notice of the

filings in Inendino’s union case, Firefighters Union Local #2 v. City of Chi., case no.

22 CH 7782 (Cir. Ct. Cook Cnty.), which are a matter of public record and include the

same report. Pierce v. Ill. Dep’t of Human Servs., 128 Fed. App’x 534, 535 (7th Cir.

2005) (finding no error where the district court, in deciding a motion to dismiss,

considered documents outside the pleadings “from the administrative process”

because they were “public records”); see also Flores v. Bd. of Trustees of Cmty. Coll.

Dist. No. 508, 103 F. Supp. 3d 943, 948 (N.D. Ill. 2015) (considering IDHR charge as

central to the complaint in an ADA case); Whitehead v. AM Int’l, Inc., 860 F. Supp.

1280, 1286 n.5 (N.D. Ill. 1994) (“To determine the proper scope of Whitehead's Title

VII complaint, however, the court must consider the accusations made in the EEOC

charge.”).

go I have a real job.” Id. The OIG received two complaints from members of the public

regarding these comments. R. 1 ¶ 21 n.1.

Inendino’s other Facebook posts contained in the OIG report contain a mix of

fairly inflammatory politically and racially charged memes, including criticisms and

personal attacks of Lightfoot like, “you could take one out of the ghetto but can’t take

the ghetto out of them… what a dirty hoodrat she is,” “hope she chokes on something,”

and “fluent in ghetto.” R. 12-2 at 11–13.2 He also posted a petition to recall Lightfoot.

R. 1 ¶ 24–25. According to Inendino, this speech did not cause a disruption at his

workplace, nor was there any evidence that it was likely to cause a disruption. Id. ¶¶

23, 29. For the arbitration hearing on his termination, his coworkers wrote many

letters extoling his bravery, character, and selflessness and argued he should not

have been terminated. Id. ¶ 22a–v.

On September 14, 2022, Inendino filed a three-count Complaint against

Defendants under 42 U.S.C. § 1983, alleging that his termination was in retaliation

for the exercise of his First Amendment right to free speech. See id. Inendino alleges

that the true reason he was terminated was because his Facebook activity included

2 Other examples contained in the OIG report include an image of pregnant black

women, captioned, “the real housewives of public housing,” R. 12-2 at 6; various

memes about black-on-black crime statistics, id. 6-8; posts supporting a shooting at a

protest in Kenosha, Wisconsin (including captions like, “Good for him should aim for

the torso!!!”), id. at 9-10; comments about wanting to leave Chicago because of crime

and protests, id. at 11; comments calling looters “animals” and implying they receive

government aid, id. at 7; memes discussing why the shooting of Breonna Taylor was

justified, id.; a post making fun of an Asian-American White House correspondent’s

accent, id. at 13; and a cartoon image of a truck running over stick figures with the

caption, “All Lives Splatter. Nobody Cares About Your Protest. Keep Your Ass Out of

the Road,” id. at 8.

criticisms of Lightfoot and a petition to recall her. Id. ¶¶ 24–25. As proof, he points

to the fact that, at the grievance arbitration prior to his termination, the City’s lawyer

directly questioned him about the petition to recall Lightfoot and his various

criticisms of her posted on his Facebook page.3 Id.; R. 22-3. Inendino further alleges

that Lightfoot was personally involved in the decision to terminate him. R. 1 ¶ 30. In

his reply brief, he points to the testimony of the Labor Relations Commissioner at

Inendino’s arbitration that the Commissioner recommended to Nance-Holt that

Inendino not be terminated, and that Nance-Holt agreed that Inendino did not

deserve termination. R. 22-2 at 163–64.4

Inendino sues Lightfoot and Nance-Holt in their individual capacities. He also

brings a Monell claim against the City of Chicago (“the City”), alleging that Lightfoot

was the final policymaker for the City as to the hiring and firing of firefighters, and

that he was terminated pursuant to the City’s policy which prohibits employees from

“posting on social media any content . . . that can be deemed offensive, a personal

3 To his reply brief, Inendino attaches portions of the transcript of his administrative

hearing. “[A] party opposing a Rule 12(b)(6) motion may submit materials outside the

pleadings to illustrate the facts the party expects to be able to prove.” Geinosky v. City

of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012).

4 The Court will not consider the portion of the City of Chicago Personnel Rules which

Defendants attach to their brief. Though relevant, they are neither “critical to the

complaint” nor “referred to in it.” Tobey, 890 F.3d at 648. And “notwithstanding their

availability on the Internet, the personnel rules are not the sort of ‘public record’ of

which courts typically take judicial notice. They are not ‘generally known within the

territorial jurisdiction or capable of accurate and ready determination through

sources whose accuracy cannot reasonably be questioned.’” Curry v. City of Chicago,

No. 10-CV-7153, 2013 WL 884454, at *2 (N.D. Ill. Mar. 8, 2013) (quoting Gen. Elec.

Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997)) (refusing

to consider the City of Chicago’s Personnel Rules on a motion to dismiss).

attack or a violation of an established internal policy, rule or law.” R. 1 ¶ 49. That

policy further provides examples of prohibited communications which “are deemed by

CFD to offend persons based on race, ethnic heritage, national origin, sex, sexual

orientation, age, physical or mental illness or disability, marital status, employment

status, housing status, religion . . .” Id.

DISCUSSION

I. Whether Inendino Adequately Alleges Lightfoot’s Personal

Involvement in Count I

First, Lightfoot’s motion to dismiss Count I against her can be easily granted

because Inendino fails to adequately allege Lightfoot’s personal involvement in his

termination. To state a claim against a government official in her individual capacity,

a plaintiff must plead that “through the official’s own individual actions, [she] has

violated the Constitution.” Iqbal, 556 U.S. at 676; Matz v. Klotka, 769 F.3d 517, 528

(7th Cir. 2014) (“Individual liability under § 1983 requires ‘personal involvement in

the alleged constitutional deprivation’” (quoting Minix v. Canrecci, 597 F.3d 824, 833

(7th Cir. 2010))). There is no respondeat superior liability for § 1983 actions, so a

government official is only “liable for his or her own misconduct.” Iqbal, 556 U.S. at

677. The official must “know about the conduct and facilitate it, approve it, condone

it, or turn a blind eye for fear of what they might see.” Matthews v. City of East St.

Louis, 675 F.3d 703, 708 (7th Cir. 2012).

Inendino’s claim regarding Lightfoot’s personal involvement in his termination

is nothing more than a threadbare recital of the elements of a cause of action, devoid

of factual support. Twombly, 550 U.S. at 555. He merely states that “Mayor Lightfoot

was personally involved in the decision to terminate” him, R. 1 ¶ 30, but he alleges

no facts that Lightfoot personally knew about and facilitated his termination or

turned a blind eye to it. Though he refers in his reply brief to the fact that he was

questioned about his criticisms of Lightfoot during his grievance hearing, and that

Nance-Holt originally stated she did not think he deserved termination, these facts

do not support a reasonable inference that Lightfoot was personally involved in the

termination of a lower-level fireman. This is especially true because the Municipal

Code of Chicago limits the Mayor’s oversight for discipline of employees to “officers of

the city” and those “exempt from the . . . civil service act.” Municipal Code of Chicago

§ 2-4-020. Inendino does not allege that he was either a city officer or exempt from

the civil service act. Because Inendino’s allegations of Lightfoot’s personal

involvement in his termination are pure speculation contradicted by the Municipal

Code, Lightfoot’s motion to dismiss is granted as to the single count against her.

II. Whether Inendino Sufficiently Alleges that He Engaged in

Constitutionally Protected Speech

The Court turns now to the City’s and Nance-Holt’s remaining arguments.

First, they argue that Inendino fails to allege he engaged in protected speech. In order

to state a claim of a First Amendment violation on the basis of retaliation, Inendino

must allege that the activity for which he suffered an adverse action was protected

under the First Amendment. 145 Fisk, LLC v. Nicklas, 986 F.3d 759, 766 (7th Cir.

2021). A public employee’s speech is only protected by the First Amendment if: “(1)

he spoke as a private citizen rather than in his capacity as a public employee; (2) he

spoke on a matter of public concern; and (3) his interest in expressing the speech is

‘not outweighed by the state’s interests as an employer in promoting effective and

efficient public service.’” Lett v. City of Chicago, 946 F.3d 398, 401 (7th Cir. 2020)

(quoting Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013)). As to the third factor,

the Supreme Court has provided courts with a balancing test in Connick v. Myers,

461 U.S. 138 (1983) and Pickering v. Bd. Of Educ., 391 U.S. 563 (1968). Pickering

balancing, as it is called, includes the consideration of a number of factors to weigh

the public employee’s interests in free speech under the First Amendment against

the state’s interests. Id.

For the purposes of their motions, Defendants concede that Inendino spoke as

a private citizen on his Facebook page (even though he presented as a member of CFD

when he did so) and that some of his posts could be viewed as touching on matters of

public concern. Defendants thus argue that Inendino’s claims fail on the third factor

because the City’s interests in “maintaining the public’s trust and confidence in the

City’s ability to serve its residents in an equitable and respectful manner and in

promoting effective and efficient public service outweigh Inendino’s interest in

posting racist, violent and dehumanizing invective on social media.” R. 12 at 8.

The Seventh Circuit, however, has advised courts that the relative balancing

of the state’s interests against the employee’s interests should not be decided at the

pleading stage because it is “preferable to leave to the defendant the burden of raising

justification as an affirmative defense.” Gustafson v. Jones, 117 F.3d 1015, 1019 (7th

Cir. 1997); Glass v. Dachel, 2 F.3d 733, 744 (7th Cir. 1993) (explaining that the state

bears the burden of demonstrating an interest which outweighs the employee’s

interest in speaking). Though Defendants’ briefs include arguments regarding their

interests in terminating Inendino’s employment, and the Court does take notice of

Inendino’s racially-charged Facebook posts, the Court cannot consider the City’s

purported interests in limiting that speech on a motion to dismiss because the City’s

interests are an affirmative defense and appear nowhere on the face of the Complaint

or in the OIG report. Ontario Ltd. v. Zurich Cap. Markets, Inc., 249 F. Supp. 2d 974,

985 (N.D. Ill. 2003) (“Defendants can bring a motion to dismiss on the basis of an

affirmative defense only if that affirmative defense appears on the face of the

complaint.”); Arnold v. Janssen Pharmaceutica, Inc., 215 F. Supp. 2d 951, 956–57

(N.D. Ill. 2002) (a plaintiff “need not anticipate or plead around affirmative

defenses”). Therefore, and because the Pickering balancing test is highly fact-

dependent, its application “will be possible only after the parties have had an

opportunity to conduct some discovery.” Gustafson, 117 F.3d at 1019; see also Redd v.

Dougherty, 578 F. Supp. 2d 1042, 1052 (N.D. Ill. 2008) (refusing to conduct Pickering

balancing test at the motion to dismiss stage). Here, further discovery must occur on

the impact of Inendino’s speech, its effect on Inendino’s job, the City’s interests in

limiting the speech, and Inendino’s allegations that he was actually terminated for

his criticisms of Lightfoot, and not his other posts. The City’s and Nance-Holt’s

motions to dismiss on this basis are denied.

III. Whether Qualified Immunity Bars Inendino’s Claims Against

Nance-Holt in Count II.

Nance-Holt next argues that Inendino’s claims against her in her individual

capacity in Count II must be dismissed on the basis of qualified immunity. “Qualified

immunity shields government officials from civil damages liability unless the official

violated a statutory or constitutional right that was clearly established at the time of

the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). For a right to

be “clearly established,” the “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Though qualified immunity should be determined at the “earliest possible stage,”

Reed v. Palmer, 906 F.3d 540, 549 (7th Cir. 2018), dismissal under Rule 12(b)(6) based

on qualified immunity is appropriate only when the plaintiff’s well-pleaded

allegations, taken as true, do not “state a claim of violation of clearly established law.”

Hanson v. LeVan, 967 F.3d 584, 590 (7th Cir. 2020) (internal quotations omitted).

For the same reason that the Court cannot conduct the Pickering analysis, it

cannot determine, at this early stage, the existence of qualified immunity. Pearson v.

Callahan, 555 U.S. 223, 238–39 (2009) (“When qualified immunity is asserted at the

pleading stage, the precise factual basis for the plaintiff’s claim or claims may be hard

to identify.”). Before determining whether a right is clearly established, the Court

must first determine whether the official violated a constitutional right. Spiegla v.

Hull, 371 F.3d 928, 940 (7th Cir. 2004) (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)). It is difficult to decide the question of qualified immunity prior to conducting

the Pickering analysis. Spiegla, 371 F.3d at 940 (“[B]ecause [the] Pickering analysis

is essential to the determination of whether a constitutional violation occurred, [the

Court] cannot [] reach the issue of qualified immunity” on a motion to dismiss.).

The Court’s declining to decide the issue of qualified immunity at this stage in

the litigation does “not preclude [the defendants] . . . at the summary judgment stage

from introducing evidence that might reveal a justification for their situation that

would support a finding of immunity, but . . . they are not entitled to a finding on the

pleadings that they enjoy qualified immunity from suit.” Gustafson, 117 F.3d at 1021

(denying motion to dismiss First Amendment retaliation claims based on qualified

immunity). Nance-Holt’s motion to dismiss on the basis of qualified immunity is

denied.

IV. Whether Inendino Stated a Monell Claim in Count III

Finally, the City argues that Inendino fails to state a claim for municipal

liability under Monell in Count III. A municipality may be liable for damages under

§ 1983 only if the constitutional violation was caused by: “(1) an official policy adopted

and promulgated by its officers; (2) a governmental practice or custom that, although

not officially authorized, is widespread and well settled; or (3) an official with final

policy-making authority.” Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 303

(7th Cir. 2010) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)).

The Complaint alleges that the City is liable for violating Inendino’s First

Amendment rights under an official policy theory and an official with final policy-

making authority theory.

A. Act of a Person with Final Policymaking Authority

First, the Complaint predicates Monell liability on the fact that “Lightfoot was

the final policymaker for the City with regard to the employment of firefighters (and

she made the decision to terminate Inendino).” R. 1 ¶ 49a. “State or local law

determines whether a person has policymaking authority for purposes of § 1983.”

Waters v. City of Chicago, 580 F.3d 575, 581 (7th Cir. 2009). The Municipal Code of

Chicago contradicts Inendino’s claim that the mayor has any policy-making authority

as to the discipline or termination of firefighters. See Municipal Code of Chicago § 2-

74-050 (‘The commissioner of human resources shall issue human resources rules. . .

. The rules shall provide: . . . for the establishment of disciplinary measures such as

suspension, demotion in rank or grade, or discharge.”); id. § 2-4-020 (limiting the

mayor’s supervision and punishment of City employees to city officers and those

exempt from the civil service act). This claim also fails for the same reason that the

individual claim against Lightfoot failed: Inendino has not adequately alleged

Lightfoot’s personal involvement in his termination. He therefore has not alleged that

any final policymaker was involved in the constitutional deprivation at issue. Hankle-

Sample v. City of Chicago, No. 20-CV-1997, 2021 WL 4461557, at *13 (N.D. Ill. Sept.

29, 2021) (dismissing Monell claim because “[n]one of the individual agents named in

the [complaint] are final policymakers”). The Monell claim based on the act of a final

policymaker is dismissed and must be stricken from Count III (¶ 49a).

B. Official Policy

But Inendino’s “official policy” Monell claim survives the City’s motion to

dismiss. There are two types of such “official policy” claims: first, when a policy

“explicitly violates a constitutional right when enforced,” and second, when there are

“omissions in the policy” that cause a constitutional violation. Calhoun v. Ramsey,

308 F.3d 375, 379-80 (7th Cir. 2005). To prevail on the first type, the “[p]laintiff must

identify specific language in the policy that explicitly violates a person’s

constitutional rights.” Alcorn v. City of Chicago, No. 17 C 5859, 2018 WL 3614010, at

*15 (N.D. Ill. July 27, 2018) (citing Calhoun, 308 F.3d at 381). “Under this type of

claim, one application of the offensive policy resulting in a constitutional violation is

sufficient to establish municipal liability.” Calhoun, 308 F.3d at 379–80 (citing City

of Okla. v. Tuttle, 471 U.S. 808, 822 (1985)). The second type of official policy claim

which focuses on omissions, however, “require[s] more evidence than a single incident

to establish liability.” Calhoun, 308 F.3d at 380.

The City focuses its argument on the second type and argues that Inendino’s

claim fails because he does not point to any constitutional violations other than his

own. Though Inendino did not address the City’s argument on this point, his

Complaint is clearly not making out a claim based on an omission in policy. Rather,

Inendino alleges he “was terminated pursuant to official City policy.” R. 1 ¶ 49b. He

points to explicit language in the policy prohibiting social media posts that “can be

deemed offensive, a personal attack or a violation of an established internal policy,

rule or law.” Id. He further alleges that “‘posting on social media’ is speech” (id. ¶ 49b

n.3), and therefore reasonably implies that the enforcement of this policy explicitly

violates employees’ First Amendment right to the freedom of speech when enforced.

Because he alleges the first type of official policy claim, he need not point to any other

examples of constitutional violations; “one application . . . resulting in a constitutional

violation is sufficient.” Jd. at 379-80. Therefore, the City’s motion to dismiss

Inendino’s official policy Monell claim in { 49b of the Complaint is denied.

CONCLUSION

For the foregoing reasons, Lightfoot’s motion to dismiss (R. 12) is granted.

Apart from the final policymaker Monell claim in § 49a of Count III, which is stricken,

the City’s motion to dismiss (R. 17) is denied. Finally, Nance-Holt’s motion to dismiss

(R. 13) is denied in full.

ENTERED:

Aime M Luthor.

Honorable Thomas M. Durkin

United States District Judge

Dated: March 38, 2023

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