Lopez v. Fasana

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

APRIL LOPEZ, )

)

Plaintiff, ) No. 1:23-CV-15819

)

v. )

) Judge Edmond E. Chang

MATT FASANA, ILIANA RZODKIEWICZ, )

MAREK WISNIEWSKI, BRIAN KITTLE, )

and the CHICAGO BOARD OF )

EDUCATION, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

April Lopez, a former chief engineer subcontracted to work in a Chicago public

school, alleges that school officials retaliated against her for exercising her right to

free speech under the First Amendment. R. 35, Am Compl. ¶¶ 35–50.1 Lopez alleges

that after she expressed concern about a poster in a school hallway advertising a drag

show scheduled to be shown to middle- and high-school students, she was almost im-

mediately fired. Id. ¶¶ 35–46. She brings this lawsuit against school officials and the

Chicago Board of Education. Id.¶¶ 9–13, 35–50. The Defendants move to dismiss the

claims, arguing that the school officials enjoy qualified immunity from suit and, even

if they did not, that Lopez has not plausibly alleged that the Defendants retaliated

1Citations to the record are “R.” followed by the docket entry number and, if needed,

a page or paragraph number. This Court has subject matter jurisdiction over the civil rights

claim under 28 U.S.C. § 1331, and supplemental jurisdiction over the state law indemnifica-

tion claim against the Board under 28 U.S.C. § 1367.

against her for engaging in protected speech. R. 47, Defs.’ Mot. For the reasons ex-

plained in this Opinion, the motion is denied.

I. Background

In deciding a motion to dismiss, the Court accepts well-pleaded facts as true

and draws all reasonable inferences in the plaintiff’s favor. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). April Lopez worked at Disney II Magnet High School as a chief en-

gineer from October 2021 through April 2023. Am. Compl. ¶ 20. Although the school

takes the name “High School,” the school teaches students from Grade 7 through 12.

Id. ¶ 7. She was not a direct employee of the Chicago Public Schools system; instead,

she worked for Eco-Alpha, a subcontractor of Jones Lang LaSalle (the giant real-es-

tate services company). Id. ¶¶ 14, 17–18.

During the early morning of April 28, 2023, before students arrived at school,

Lopez saw a poster for a drag show for students posted in a hallway. Id.¶ 21. She said

to one of her colleagues, “I cannot get on board with that.” Id. ¶ 22. Vice Principal

Matt Fasana overheard the comment and “expressed anger at her point of view.” Id.

¶ 23. Then, later that morning, Lopez approached Fasana and directly “expressed her

concern over having a drag show at a school with children as young as 12.” Id. ¶ 24.

That conversation allegedly triggered a series of reports up the command

chain—all on the same day, April 28—eventually leading to Eco-Alpha terminating

Lopez’s employment. After Lopez’s second conversation with Fasana, Fasana re-

ported the conversation to Principal Iliana Rzdokiewicz. Id. ¶ 25. Then Principal

Rzdokiewicz went further, outside of the high school itself, reporting the conversation

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to Brian Kittle, the Lead Facilities Manager in the Chicago Public School Facilities

Department. Id. ¶¶ 13, 26. In turn, Kittle reported the conversation to Marek

Wisniewski, the Director of Facilities, Operations & Maintenance for Chicago Public

Schools. Id. ¶¶ 12, 28. Before the end of that very same day—this is still April 28—

Eco-Alpha emailed Lopez, notifying her that the company was “in receipt of a report

of complaint regarding [her] interactions with a [Chicago Public School] employee on

April 28, 2023,” and informing her that she had been placed on an administrative

leave of absence with pay. Id. ¶ 32.

April 28, 2023, was a Friday. On the next Monday, May 1, Eco-Alpha sent

Lopez a letter announcing that she was fired and referring to Chicago Public Schools’

request to remove her from the high school:

The purpose of this letter is to inform you of your immediate termination as a

Chief Engineer with Eco-Alpha Chicago, Inc. due to the reported interactions

with CPS [Chicago Public School] staff at Disney II Magnet School on April 28,

2023. Eco-Alpha therefore must honor CPS’s request to have your removed

from this account and your termination is effective May 1, 2023.

Id. ¶ 33.

Lopez alleges that Fasana, Rzdokiewicz, Kittle, and Wisniewski together en-

sured that she would be removed from the high school and that she would not be

placed at any other Chicago Public School location, all because of her comment about

the poster and her conversation with Fasana. Id. ¶¶ 29–31. In the Amended Com-

plaint, Lopez sues Fasana, Rzodkiewicz, Wisniewski, and Kittle, as well as the Chi-

cago Board of Education.

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The Defendants now move to dismiss the Amended Complaint, arguing that

the individual Defendants are entitled to qualified immunity, and that, even if they

are not, Lopez fails to adequately allege that they retaliated against her for engaging

in First Amendment protected speech. Defs.’ Mot. The Board of Education gloms on

to the arguments by pointing out that if the claims against the individual Defendants

fail, then the indemnification claim does too. But at the pleading phase of the case,

the Amended Complaint sets the factual stage for assessing the dismissal motion. On

those facts, Lopez has plausibly alleged a First Amendment retaliation claim that

overcomes qualified immunity.

II. Legal Standard

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only

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

to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the de-

fendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).2 The Seventh Circuit has

explained that this rule “reflects a liberal notice pleading regime, which is intended

to ‘focus litigation on the merits of a claim’ rather than on technicalities that might

keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).

2This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,

18 Journal of Appellate Practice and Process 143 (2017).

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“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to

state a claim upon which relief may be granted.” Hallinan v. Fraternal Ord. of Police

of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] 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. These allegations “must be enough to raise a right

to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations that

are entitled to the assumption of truth are those that are factual, rather than mere

legal conclusions. Iqbal, 556 U.S. at 678–79.

III. Analysis

A. First Amendment Retaliation

Lopez alleges that her termination from Eco-Alpha violated her First Amend-

ment right to speak about matters of public importance without being retaliated

against. Am. Compl. ¶¶ 35–46; R. 53, Pl.’s Resp. at 4–11. Lopez insists that she was

expressing her opinion on the drag show’s suitability for young students, and that she

was fired for expressing that opinion. Am. Compl. ¶¶ 21–22; Pl.’s Resp. at 6–11. The

Defendants contend that Lopez spoke as a government official pursuant to her official

duties, so her speech was not protected by the First Amendment and consequently

firing her because of the speech did not amount to retaliation. Defs.’ Mot. at 5–6.

Generally speaking, government employers may not retaliate against their em-

ployees (or contractors) for exercising their right to free speech. See Garcetti v. Ce-

ballos, 547 U.S. 410, 417 (2006); Bd. Of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v.

Umbehr, 518 U.S. 668, 685 (1996) (holding that government contractors and

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government employees receive the protection under the First Amendment).3 Indeed,

a “public employee does not shed [her] First Amendment rights at the steps of the

government building.” Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964,

970 (7th Cir. 2001). To plausibly state a claim for First Amendment retaliation, Lopez

must allege that her speech was constitutionally protected, that she suffered an ad-

verse action or that she suffered a deprivation likely to deter free speech, and that

the protected conduct was at least a motivating factor behind the adverse action. Hol-

leman v. Zatecky, 951 F.3d 873, 878 (7th Cir. 2020); Massey v. Johnson, 457 F.3d 711,

716 (7th Cir. 2006).

Before getting to the key question in the case—whether Lopez’s speech was

protected by the First Amendment—the other elements of the claim require little dis-

cussion. The parties do not meaningfully dispute the adverse-action requirement; af-

ter all, Lopez was fired. The defense also accepts (as it must at this stage of the case)

that the firing was motivated by Lopez’s overheard remark and expression of concern

to Fasana. Defs.’ Mot. at 5–6. The Defendants tersely argue that Lopez did not ade-

quately plead that the individual Defendants were each personally involved with her

firing. Defs.’ Mot. at 8. But the allegations describing the same-day chain-of-com-

mand reports by the individual Defendants, Am. Compl. ¶¶ 25–28, and the same-day

3The parties do not dispute that Lopez is a government contractor and her claim re-

ceives the same analysis as government employees. Am. Compl. ¶¶ 14, 17–18, 20; Defs.’ Mot.

at 4. The parties only dispute the outcome of the analysis.

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suspension plus the next-business-day firing, id. ¶¶ 32–33, more than adequately

plead the personal conduct of each school official.

1. Speech by Public Employees

It is time to move on to the key question: whether Lopez adequately alleged

that she engaged in constitutionally protected speech. The Defendants contend that

the firing was permissible because she was speaking as a public official, and that her

speech was not protected. Defs.’ Mot. at 5–6. To succeed on a retaliation claim, Lopez

must plausibly allege that she was speaking as a private citizen, and that the speech

addressed a matter of public concern. Davis v. City of Chicago, 889 F.3d 842, 845 (7th

Cir. 2018). If Lopez was speaking pursuant to her official duties, then she has no

retaliation claim, because that kind of speech—for First Amendment purposes—is

considered to be government speech. See Garcetti, 547 U.S. at 421 (holding that pub-

lic-employee speech made pursuant to one’s official duties is “not insulate[d] … from

employer discipline”). If, on the other hand, she plausibly alleges that she was speak-

ing as a private citizen on a matter of public concern, then the First Amendment may

be implicated, and the next step of the evaluation is commonly referred to as Picker-

ing balancing. Id. at 423. At that step, the Court engages in “a delicate balancing of

the competing interests surrounding the speech and its consequences,” including

whether the employee’s interest in her speech is outweighed by “‘the interest of the

State, as an employer, in promoting the efficiency of the public services it performs

through its employees.’” Id. at 417, 423 (quoting Pickering v. Bd. Of Ed. of Tp. High

Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968)).

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On the threshold requirement, Lopez plausibly alleges that she was speaking

as a private citizen, not pursuant to her official duties. On this question, courts con-

sider the context of the speech, including whether the employee engaged in speech

“ordinarily within the scope” of her employment, whether the speech was pursuant

to government policy or to convey a government-created message, and who was the

intended target of the speech. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 529–30

(2022) (cleaned up). Put another way, did Lopez’s not-on-board-with-that comment

and the later conversation with Fasana “ow[e their] existence,” Garcetti, 547 U.S. at

421, to her responsibilities as the employee of a government subcontractor?

At the pleading stage, the only answer is no—and clearly so. Lopez was the

chief engineer at the school. Am. Compl. ¶ 1. Nothing in the Amended Complaint

suggests that a school engineer’s duties include advising or opining on the substance

of school programming. So Lopez’s speech is not “ordinarily within the scope,” Ken-

nedy, 597 U.S. at 529 (cleaned up), of her engineer duties. Am. Compl. ¶¶ 1, 22, 24.

Nor is there anything in the Amended Complaint hinting that Lopez was speaking

pursuant to a school policy or seeking to convey a school-created message—instead,

she expressed her own concern about the drag show for students as young as 12. Id.

¶¶ 22, 24. Nor did Lopez connect the concern with her duties, for example, by refusing

to work on the set up for the drag show. See Pl.’s Resp. at 6–7.

As a final point on the Garcetti inquiry, Lopez’s speech did not owe its existence

to her responsibilities as a public employee. It is true that she was in the school hall-

way and saw the poster while she was at work. Id. ¶¶ 21–22. But the Supreme Court

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has held that the test for official-duty-speech is not whether the speech “simply re-

lates to public employment” or—importantly here—“concerns information learned in

the course of public employment.” Lane v. Franks, 573 U.S. 228, 239 (2014). In Lane,

the public employee was the director of a youth-training program. Id. at 231–32. He

conducted an audit of the program and found that a state representative was a ghost

payroller, that is, was being paid as an employee of the program but not showing up

for work. Id. at 232. The director instructed the legislator to show up for work, but

she refused—so he fired her. Id. Eventually, the legislator was indicted for fraud and

the director was subpoenaed to testify at the trial. Id. at 232–33. Later, the director

himself was fired, and he alleged that the firing was in retaliation for this trial testi-

mony against the former legislator. Id. at 234. In rejecting the government’s argu-

ment that the director’s testimony was speech made pursuant to official duties, the

Supreme Court distinguished between speech merely about information learned dur-

ing employment versus speech made pursuant to official duties:

the mere fact that a citizen’s speech concerns information acquired by virtue

of his public employment does not transform that speech into employee—ra-

ther than citizen—speech. The critical question under Garcetti is whether the

speech at issue is itself ordinarily within the scope of an employee’s duties, not

whether it merely concerns those duties.

Id. at 240 (emphases added). Lane’s application is clear here: it matters not that

Lopez learned about the drag show because she was a school engineer. Instead, the

question is whether her speech was made pursuant to official duties. On the limited

set of facts in the Amended Complaint, the answer is no.

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With Garcetti out of the way (at least for now at the pleading stage), the next

question is whether Lopez also plausibly alleges that she spoke on a matter of public

concern. “Whether an employee’s speech addresses a matter of public concern must

be determined by the content, for, and context of a given statement, as revealed by

the whole record.” Connick v. Myers, 461 U.S. 138, 147–48 (1983). Generally, when

the speech of employees relates to “any matter of political, social, or other concern to

the community,” then they are speaking on a matter of public concern. Id. at 146.

Here, Lopez’s comments addressed a public issue: her opinion on what kinds of shows

are appropriate for children to view in a school setting addresses a topic of public

debate protected by the First Amendment. Indeed, the topic literally is about what

should be shown in a public school. It is worth adding that the answer to the public-

concern-or-not question does not depend on the viewpoint of the speaker. Consider,

for example, if the hallway announcement had publicized the cancellation of a drag

show due to parental concerns, and a school engineer expressed her concern to the

vice-principal about bowing to that pressure. That speech would just as much touch

on a matter of public concern as Lopez’s. Based on the limited facts, Lopez spoke on

a matter of public concern.

2. Pickering

The final question is whether Lopez’s claim survives Pickering balancing. The

answer again is yes. Right now, confined to the facts in the Amended Complaint, the

scales are tipped entirely in Lopez’s favor. Her interest in expressing her opinion on

what is appropriate for children to view in a school setting outweighs the needs of the

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school in carrying out the school system’s duties. See Pickering, 391 U.S. at 568–70.

Indeed (and not surprisingly), the Amended Complaint contains no allegations at all

as to what disruption, if any, was caused by Lopez’s speech. Reasonable inferences

must be drawn in Lopez’s favor, and nothing in the pleading suggests that any stu-

dents heard her remarks. The overhead comment happened before students arrived.

Am. Compl. ¶ 21. The allegation on the later conversation with Fasana says nothing

about anyone else being present for it. Id. ¶ 24. There is nothing else about how the

comment or the conversation otherwise affected the school day specifically or the

school’s operations more generally. At this pleading stage, the Pickering balance is

all one-sided in Lopez’s favor. It is true that discovery might illuminate more about

what Lopez said and more about the effect on the school. The Defendants could then

renew their arguments at the summary judgment stage. For now, though, Lopez has

more than plausibly alleged a claim for First Amendment retaliation.

B. Qualified Immunity

The individual Defendants maintain that they are entitled to qualified immun-

ity because, to their way of thinking, the allegations do not amount to a violation of a

clearly established right. Defs.’ Mot. at 8–9. Qualified immunity protects government

officials from civil liability if “their conduct does not violate clearly established stat-

utory or constitutional rights of which a reasonable person would have known.” Pear-

son v. Callahan, 555 U.S. 223, 231 (2009). “Qualified immunity balances two im-

portant interests—the need to hold public officials accountable when they exercise

their power irresponsibly and the need to shield officials from harassment,

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distraction, and liability when they perform their duties reasonably.” Id. To overcome

the individual Defendants’ qualified-immunity defense, Lopez must allege that (1)

“the official violated a statutory or constitutional right” and (2) “the right was clearly

established at the time of the challenged conduct.” Reed v. Palmer, 906 F.3d 540, 546

(7th Cir. 2018) (cleaned up). A right is “clearly established” if the conduct is so clearly

in violation of the law that every “reasonable official would understand that what

[they are] doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

The court may decide which element to work through first; if the answer to either

question is “no,” the defendant official is entitled to qualified immunity. Green v. New-

port, 868 F.3d 629, 633 (7th Cir. 2017).

But qualified immunity is an affirmative defense. Though it is true that, as an

immunity from suit, qualified immunity should be decided “at the earliest possible

stage,” Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000), the assess-

ment of qualified immunity is still confined by pleading-stage requirements. See Rol-

dan v. Stroud, 52 F.4th 335, 339 (7th Cir. 2022). Those requirements include crediting

the factual allegations, giving reasonable inferences to the plaintiff, and—im-

portantly here—confining the facts to the pleadings. Indeed, generally speaking, a

“plaintiff is not required initially to plead factual allegations that anticipate and over-

come a defense of qualified immunity.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th

Cir. 2001) (cleaned up).

As already explained, Lopez more than plausibly alleged that the school offi-

cials caused her to be fired because she made spoke about the drag show. See supra

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Section III.A. The First Amendment has long forbidden retaliation against public em-

ployees for privately made speech on a matter of public concern. See, e.g., Kennedy,

597 U.S. at 527–29 (discussing the Pickering line of cases dating back to 1968); Davis,

889 F.3d at 845 (applying the Garcetti-Pickering framework in a First Amendment

retaliation case). More concretely, reasonable school officials would know that they

violate the First Amendment when they fire a school engineer for expressing concern

to a vice-principal about a drag show, and when the speech had zero impact on the

school’s operations. Again, the analysis is confined to the facts in the Amended Com-

plaint, because this case is at the pleading stage. Maybe discovery will shed light on

the negative effects of the speech. Based on the current set of facts, however, the

allegations state a violation of clearly established First Amendment law. The Defend-

ants, therefore, are not entitled to qualified immunity at this time.

C. Indemnification

Lopez also alleges an indemnification claim against the Board of Education.

See Am. Compl. ¶¶ 47–50; 745 ILCS 10/9-102 (imposing a statutory duty on local

public entities to indemnify employees for actions taken in their official capacity).

Because the claims against the individual school officials survive, the indemnification

claim survives too.

IV. Conclusion

The Defendants’ motion to dismiss the First Amendment retaliation claim and

indemnification claim, R. 47, is denied. The Defendants shall answer the Amended

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Complaint by April 15, 2025. The parties shall confer on a discovery schedule and

propose it in a joint status report due on April 18, 2025.

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: March 31, 2025

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