# Inendino v. Nance-Holt

> District Court, N.D. Illinois · March 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10148402

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** March 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10148402. Public record. Not legal advice.