Appendix — Cromley v. Board of Education
Supreme Court brief1994
Ask Donna
What actually matters in this document.
Text
1
In the
United States Court of Appeals
For the Seventh Circuit
No. 93-1300
MARCELLA ANN CROMLEY,
Plaintiff-A ppellant,
Vv.
BOARD OF EDUCATION OF LOCKPORT
TOWNSHIP HiGH SCHOOL DisTRICT 205,
DONALD E. WEBER, RICHARD J. DITTLE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Dlinois, Eastern Division.
No. 87 C 9767—James B. Moran, Chief Fudge.
ARGUED SEPTEMBER 30, 1993—DecipED MARCH 3, 1994
Before FAIRCHILD, CorrEy and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Marcella Ann Cromley, a high
school teacher, brought an action under 42 U.S.C. § 1983.
She claimed that she had been denied various administra-
tive positions because she had exercised her right to free
speech as guaranteed by the First Amendment and made
applicable to the states by the Fourteenth Amendment.
feng istrict court granted summary judgment to the de-
fendants Board of Education of Lockport Township High
School District 205 and its superintendent, assistant super-
intendent, principal, and one teacher (the “defendants”).
2 No. 93-1300
It also denied Ms. Cromley’s motion to disqualify defen-
dants’ attorneys. She now appeals the judgment of the
district court. For the reasons that follow, we affirm.
I
BACKGROUND
A. The First Amendment Retaliation Claim’
Ms. Cromley has been a high school reading instructor
in the Lockport To School District 205 since
1974. She had served as of the
ment and “Chapter I Coordinator” from 1978 to 1 In
December 1986, two students complained to her of sexual
misconduct by a male teacher in her department, Donald
Meints. After Ms. Cromley informed her , prin-
cipal Richard Dittle, he wadertook an investigation. tater.
views with the students and with Meints established that
the allegations were basically true. The and other
administrators decided that Meints be reprimanded
and warned. Although a written of the repri
included in Meints’ nnel file or sent to the Illinois
Department of Children and and Family Services (“DCFS’’).
However, on February 12, 1987, Ms. Cromley reported
Goutep so teal Moreover, on March 4, 1987 Ms.
iat alee ovaaain, ts Chair, gave Meints a
Reading Department was Ses Gaiag mien English
Deperteceltt and eed bs Gael ae cea tele ee
:
:
No. 93-1300 3
English Department. Ms. Cromley’s later applications to
serve as Chapter I Coordinator, Associate English Depart-
ment Chair, > tad been, pretend and tanppelated cock
Soul snd the experkstandient In light of these clashes, the
principal and assistant superintendent agreed that they
could not recommend either Ms. Cromley or Mr. Meints
for leadership positions.
Ms. Cromley filed suit on November 12, 1987 under 42
U.S.C. § 1983, 3, against the Board of Education, the named
administrators, and Donald Meints. The complaint alleged
that the defendants had retaliated against her because she
had complained to DCF'S about the sexual misconduct of
Meints, a complaint which she asserted was protected
On November 8, 1989, after two years of pretrial liti
tion, Ms. Cromley’s attorney, Larry Weiner,
partnership in the law firm of Scariano, Kula, Ellch &
Chtd., which was the defendants. The
district court ted Mr. Weiner’s oral motion to with-
draw as Ms. Cromley’ attorney on November 29, 1989,
and, on December 15, 1989, Mr. Weiner formally became
a partner. Ms. Cromley moved for the disqualification of
the Scariano firm from representation of the defendants.
B. District Court Decisions
By Order of March 19, 1990, the district court denied
Ms. C Cromley’s motion to disqualify defendants’ attorneys
the ground that the “barriers erected between the at-
y and his new law firm with respect to this case are
por Aer rebut the = of shared confidences.”
Cromley v. ee E ae ag Raver: ay
gt warty "No, £1 ae 371 aT ND.
4 No. 93-1300
By Order of January 6, 1993, the district court granted
defendants’ motion for summary judgment. Cromley v.
Board of Educ., No. 87 C 9767, 1993 WL 5934 (N.D. II.
Jan. 6, 1993). The court set forth the framework for ana-
izing 2 ne we ak (+ this analy os arg
t sis requires t
in order ~ be afforded First Amendment protection, the
employee’s speech must relate to a matter of public con-
cern and the employee’s right to speak out must outweigh
the government’s interest in promoting effective and ef-
ficient public service. See Connick v. Myers, 461 U.S. 138,
147-54 (1983). The court noted that, under this analysis,
DCPS was did not dispute that Ms. Cromley’s call to
S was protected speech. However, the court held
Ms. Cromley’s written annual evaluation of Meints
pre weeks later was private communication that was
not protected speech. With respect to this latter commu-
nication, the court reasoned that this critical evaluation,
following Ms. Cromley’s earlier ints about Meints to
oe school he peer toms why (for which Meints
received an oral repriman , Was a persistent re-raising
of a closed issue rather than protected speech
to matters of public concern. It further noted that Ms.
Cromley’s supervisors could take into account the impact
(eee ee ee
school when deciding whether her to continue
in a supervisory capacity.?
The district court then considered whether there was
sufficient evidence for a trier of fact reasonably to con-
clude that the protected speech (Ms. Cromley’s phone call
to DCFS) was a substantial and motivating cause of the
merger and of her failure to attain leadership positions.
The court noted that the School Board’s decision focused
on Ms. Cromley’s administrative rather than on her teach-
2 The district court’s characterization of the evaluation is not con-
omega en tlie meee salaried
ness of that holding.
eeemnneeneenmeniel
No. 93-1300 5
ing abilities; the clear concern was the possible repercus-
sion resulting from placing either Ms. Cromley or Meints
in a supervisory position over the other. The district court
concluded, therefore, that Ms. Cromley’s protected speech
had not been a substantial factor in the ’s decision.
As an alternate holding, the district court held that, even
if the protected had been a substantial factor, a
trier of fact could not conclude reasonably that, “but for
the single call to DCFS,” there would have been no mer-
ger. Nor could it conclude reasonably that Ms. Cromley
would have been selected as English Department Chair,
Associate Chair, or Chapter I Coordinator. Accordingly,
the district court granted summary judgment to all de-
fendants.
II
ANALYSIS
Ms. Cromley submits on appeal that the district court
erred in denying the disqualification of the Scariano law
firm representing the defendants and in granting summary
judgment to the defendants. We shall consider each issue
in turn.
A. Attorney Disqualification
Our review of the district court’s decision whether to
disqualify an attorney is usually a deferential one: We shall
reverse that determination only if the district court abused
its discretion. United States v. Smith, 995 F.2d 662, 675
(7th Cir. 1993), cert. denied, 1993 WL 481727, 62 USLW
3452 (Jan. 10, 1994) (No. 93-6704); Owen v. Wangerin, 985
F.2d 312, 317 (7th Cir. 1993); United States v. Defazio,
899 F.2d 626, 629 (7th Cir. 1990). However, when all evi-
dence is submitted in the form of affidavits, and when
the district court does not hold an evidentiary hearing or
make findings of fact to which we must defer, “district
courts enjoy no particular advantage over appellate courts
in their formulation of ethical norms.” Freeman v. Chicago
6 No. 93-1300
Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982).
After a complete review of the record, we conclude that
the district court’s decision to deny Ms. Cromley’s motion
to disqualify must be affirmed under either an abuse of
discretion or de novo standard of review.
The approach taken by this circuit for determining whether
an attorney should be disqualified is a three-step analysis.
First, we must determine whether a substantial re-
lationship exists between the subject matter of the
prior and present representations. If we conclude a
substantial relationship does exist, we must next as-
certain whether the presumption of shared confidences
with respect to the prior representation has been re-
butted. If we conclude this presumption has not been
rebutted, we must then determine whether the pre-
sumption of shared confidences has been rebutted
with respect to the present representation. Failure
to rebut this presumption would also make the dis-
qualification proper.
Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983)
(citing LaSalle Nat'l Bank v. Lake County, 703 F.2d 252,
255-56 (7th Cir. 1983)); see also United States v. Goot, 894
F.2d 231, 235 (7th Cir.), cert. denied, 498 U.S. 811 (1990);
Freeman, 689 F.2d at 722; Westinghouse Elec. Corp. v.
Gulf Oil Corp., 588 F.2d 221, 225 (7th Cir. 1978).
The “substantial relationship” test is easily met in this
case. It is undisputed that the subject matter under scru-
tiny both before and after Mr. Weiner changed law firms
was the litigation brought by Ms. Cromley against the
School Board. The only change made was attorney Weiner’s
shift from the firm of Schwartz & Freeman, the firm rep-
resenting Ms. Cromley, to that of Scariano, Kula, Ellch
& Himes, the firm representing the School Board. Because
Mr. Weiner’s representation of Ms. Cromley before he
moved to the Scariano firm is substantially related to his
new firm’s relationship to the School Board, a “presump-
tion of shared confidences” arises:
ian apne
No. 93-1300 7
Implicit in a finding of substantial relationship is
a presumption that particular individuals in a law
firm freely share their client’s confidences with one
another. . . . (However, in Novo, we recognized that
the presumption that an attorney has knowledge of
the confidences and secrets of his firm’s clients is
rebuttable.
Freeman, 689 F.2d at 722 (citing Novo Terapeutisk Lab-
oratorium v. Baxter Travenol Lab., Inc., 607 F.2d 186,
197 (7th Cir. 1979) (en bane).
As a first step in deciding whether that presumption has
been rebutted, “we must determine whether the attorney
whose change of employment created the disqualification
issue was actually privy to any confidential information
his prior law firm received from the party now seeking
disqualification of his present firm.” Jd. The rebuttal can
be established either by proof that “the attorney in ques-
tion had no knowledge of the information, confidences and/
or secrets related by the client in the prior representa-
tion,” see Schiessle, 717 F.2d at 420 (citing Freeman, 689
F.2d at 723), or by proof that screening procedures were
timely employed in the new law firm to prevent the dis-
closure of information and secrets, see Goot, 894 F.2d at
235 (citing LaSalle Nat'l Bank, 703 F.2d at 259). Uncon-
troverted affidavits are sufficient rebuttal evidence. Free-
man, 689 F.2d at 723; Novo, 607 F.2d at 197.
3 In Analytica, Inc. v. NPD Research Inc., 708 F.2d 1263 (7th
Cir. 1983), this court held that the presumption of shared confi-
dences was irrebuttable when an entire law firm changed sides.
ever lawyers in the new firm are handling new matter.” Id.
dants. This circumstance falls within the ex eigen seg sry
Analytica; therefore our analysis does not conflict with that deci-
sion. See Schiessle, 717 F.2d at 420 n.2.
8 No. 93-1300
Because Mr. Weiner, Ms. Cromley’s attorney for two
years, clearly had confidential information from his client
when he moved to the firm representing the defendant
School Board, we must focus on whether the Scariano law
firm that Mr. Weiner later joined has demonstrated that it
had established an effective screening procedure to block
the i" of Ms. Cromley’s confidences within the
*“ne >
[TJhe presumption of shared confidences could be re-
butted by demonstrating that “specific institutional
mechanisms” (e.g., “Chinese Walls”) had been imple-
mented to effectively insulate against any flow of con-
fidential information from the “infected” attorney to
any other member of his present firm.
Schiessle, 717 F.2d at 421 (citing LaSalle Nat'l Bank, 703
F.2d at 259). The types of institutional mechanisms that
have been determined to protect successfully the confiden-
tiality of the attorney-client relationship include: (1) instruc-
tions, given to all members of the new firm, of the attor-
ney’s recusal and of the ban on exchange of information;
(2) prohibited access to the files and other information on
the case; (8) locked case files with keys distributed to a
select few; (4) secret codes necessary to access pertinent
information on electronic hardware; and (5) prohibited shar-
ing in the fees derived from such litigation. See Goot, 894
F.2d at 235-36; Schiessle, 717 F.2d at 421; LaSalle Nat’l
Bank, 703 F.2d at 259. Moreover, the screening devices
must be employed “as soon as the ‘disqualifying event
occurred.’ ” Goot, 894 F.2d at 235 (quoting Nat’l
Bank, 703 F.2d at 259). Other factors have been consid-
ered helpful in determining whether adequate protection
of the former client’s confidences has been achieved: the
size of the law firm, its structural divisions, the “screened”
attorney’s position in the firm, the likelihood of contact
between the “screened” attorney and one representing
another party, and the fact that a law firm’s and lawyer’s
most valuable asset is “their reputations for honesty and
integrity, along with competence.” Analytica, 708 F.2d
at 1276-77 (Coffey, J., dissenting); see also Schiessle, 717
No. 93-1300 9
F.2d at 421; Freeman, 689 F.2d at 723. In addition, the
attorneys in question must have affirmed these screen-
ing devices under oath. See Goot, 894 F.2d at 235; LaSalle
Nat’l Bank, 703 F.2d at 259. The district court must find
that the internal safeguards applied indeed did shield ef-
fectively the “tainted attorney.”
In this case, the defendants have rebutted the presump-
tion of shared confidences by describing the timely estab-
lishment of a eaneerne process. When Mr. Weiner joined
the firm he was denied access to the relevarit files, which
were located in a different office, under the control of
David Kula, the partner handling the case. Mr. Weiner
and all employees of the firm were admonished not to
discuss any aspect of the case, and all were subject to
discipline. In addition, Mr. Weiner was not allowed to
share in the fees derived from this case. The defendants
also submitted the affidavit of David Kula, the attorney
representing them. In that sworn statement Mr. Kula
stated that, as soon as he was informed that his law firm
was discussing with Mr. Weiner the possibility of Mr.
Weiner’s joining the law firm, he and Mr. Weiner “agreed
that absolutely nothing of a substantive nature regarding
the instant lawsuit would occur” until decisions were made
and the clients were made aware of them. R.51, Aff. at 2.
The affidavit describes the procedures that were put in
effect from December 15, 1989, the date that Mr. Weiner
joined the firm. Mr. Weiner’s new office was in Scariano’s
downtown Chicago building, and Mr. Kula’s office was lo-
cated in the firm’s Chicago Heights office; each came to
the other office only for specific business. Mr. Kula main-
tained the files for this case in his private office. When
it implemented specific screening procedures, the firm re-
quired all members and employees of the firm to read
and sign the memorandum describing the internal rules.
R.51, Ex. A (Memorandum) and Ex. B (checklist of all
employees of firm). Mr. Kula affirmed that “all of the ad-
monitions of the screening memo have been adhered to
by all attorneys and all support staff employed by this
firm.”? We conclude, as did the district court, that the
—
10
10 No. 93-1300
Scariano law firm successfully rebutted the presumption
of shared confidences by proving that the screening pro-
cedures were timely employed and fully implemented.
Nevertheless, Ms. Cromley contends that a per se rule
of disqualification is needed in this case: This court should
require the withdrawal both of her former attorney and
of the Scariano law firm he joined while representing her.
Even if “specific institutional mechanisms” are in place,
she insists, they cannot go far enough “to maintain pub-
lic confidence i in the legal profession.” Freeman, 689 F.2d
at 721
We cannot agree with this contention. In the first place,
the presumption of shared confidences has been found to
be irrebuttable only when an entire law firm changes
sides, see Analytica, 708 F.2d at 1267, and not when one
attorney changes sides. Moreover, in Freeman, this court
that, although the court’s duty is “to safeguard
the sacrosanct privacy of the attorney-client relationship,”
it must also be recognized that “disqualification, as a pro-
phylactic device for protecting the attorney-client relation-
ship, is a drastic measure which courts should hesitate
to impose except when absolutely necessary.” Freeman,
689 F.2d at 721. Thus, in deciding the appropriate safe-
guards necessary in the case of attorney di ification,
we must balance the respective interests of the a,
and the public. See Goot, 894 F.2d at 236. We hold that
the measures employed by the Scariano law firm suffi-
ciently screened Ms. Cromley’s former counsel from the
School Board’s present counsel.
Taking another approach, Ms. Cromley also suggests
that Mr. Weiner has not avoided “even the appearance
of professional impropriety,” in contravention of Canons
4 and 9 of the American Bar Association’s Code of Pro-
fessional ‘esponsibility. We are constrained to
we believe that the carefully constructed safeguards do
indeed avoid the appearance of impropriety:
The test has been described by this circuit as em-
bodying the substance of Canon 4 of the A.B.A. Code
of Professional Responsibility, which protects the con-
SE PPE
11
No. 93-1300 11
fidences of a client against disclosure and possible use
against him, and of Canon 9, which provides that an
attorney must avoid even the appearance of impro-
priety. Thus, the question before a district court con-
sidering a motion for disqualification is “whether it
could reasonably be said that during the former rep-
resentation the attorney might have acquired informa-
tion related to the subject matter of the subsequent
representation.” .
LaSalle Nat’l Bank, 703 F.2d at 255 (quoting Cannon v.
U.S. Acoustics Corp., 398 F. Supp. 209, 223 (N.D. Il.
1975), aff'd in part, rev'd in part, 532 F.2d 1118 (7th Cir.
1976)). Accordingly, our analysis under the three-prong
“substantial relationship” test, which has led us to the
conclusion that disqualification is not required, likewise
causes us to conclude that attorney Weiner has not breached
the Code of Professional Ethics in his representation of
Ms. Cromley.
The district court, following the three-step test for dis-
qualification of attorneys, found that the barriers erected
between the attorney and his new firm were appropriate.
The record is devoid of any evidence that Mr. Weiner ac-
tually divulged client confidences. Therefore, we conclude
that the district court did not err in determining that
Scariano’s screening process was sufficient to prevent dis-
qualification.
B. Summary Judgment
Ms. Cromley’s challenge to the summary judgment de-
termination is a narrow one.‘ She states that the defen-
4 Ms. Cromley asserts that, because the defendants failed to file
the depositions in support of their motion for summary judgment,
reversal of the summary judgment determination is required under
Rule 56 of the Federal Rules of Civil Procedure and Rule 12(m)
of the Local General Rules for the United States District Court
for the Northern District of Illinois. This position is untenable.
It is clear that the local rules of the district afforded Ms. Cromley
ample opportunity to submit whatever .oe testimony she
believed appropriate. See Local General Rule 18.
12
12 No. 93-1300
dants abolished her position as Chair of the Reading De-
sag and merged the Reading Department into the
nglish Department, only after she her constitution-
ally protected complaint about another teacher’s sexual
misconduct to DCF'S. She then contends that the defen-
dants have failed to come forward with evidence that her
complaint was not a substantial motivating factor in the
abolition of her position. .-
At the outset, we note that the district court resolved
this issue against the backdrop of settled law that a public
employee cannot be dismissed for the nondisruptive ex-
ercise of his First Amendment right to speak out on “a
matter of legitimate public concern.” Connick v. Myers,
461 U.S. 138, 145 (1983) (quoting Pickering v. Board of
Education, 391 U.S. 568, 571 (1968)). Under the analysis
employed in Connick, a public employee may be disci-
plined for speech on a matter of public concern only when
the importance of that speech is outweighed by ‘ gov-
ernment’s interest in the effective and efficient fulfillment
of its responsibilities to the public.” Connick, 461 U.S.
at 150.
When measured against the analytical approach man-
dated by Connick, it is clear that the district court’s de-
termination that Ms. Cromley’s call to DCFS was b aad
tected expression rests on solid ground.® First, it is clear
that the speech involved a matter of public concern. Con-
nick elaborates that “{w]Jhether an employee’s speech ad-
dresses a matter of public concern must be determined
by the content, form, and context of a given statement.”
Id. at 147-48. Here, the communication on possible child
abuse was made by Ms. Cromley in her capacity as an
official of the school system to the authorities responsi-
ble for protecting children from such harm. Second, we
have no quarrel with the district court’s determination
5 The district court addressed this matter in its earlier opinion
dealing with the sufficiency of the complaint. See Cromley, 699
F. Supp. at 1297.
13
No. 93-1300 13
that the importance of reporting such activities to author-
ities charged with the responsibility of protecting children
outweighs whatever disruptive ect making such a call
might have on the school office.
We turn therefore to Ms. Cromley’s claim that the de-
fendants have failed to prove that her protected speech,
the call to DCFS, was not a substantial or motivating fac-
tor in the abolition of her position as Chair of the Reading
Department. She bases her claim on the Supreme Court
decision Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. a4 (1977).
Ms. Cromley » Eng cnrdbanbpane that Mount Healthy
the | the fs proper test to app conduct protected
the First Amendment (as ge Pale by Connick) is al-
al to have played a part in the decision not to rehire
a public employee: The test is “one which likewise pro-
tects against the invasion of constitutional rights without
commanding undesirable uences not necessary to
the assurance of those rights.” Mount Healthy, 429 U.S.
at 287. It is a burden-shifting formula:
Initially, in this case, the burzen was properly placed
upon respondent to show that his conduct was con-
stitutionally Fe and that this conduct was a
“substantial —or, to put it m other words, that
it was a “motivating factor” in the Board’s decision
not to rehire him. nmdent having carried that
burden, however, the District Court should have gone
on to determine whether the Board had shown by
a preponderance of the evidence that it would have
reached the same decision as to respondent’s reem-
ployment even in the absence of the protected conduct.
Id.; see Price Waterhouse v. Hopkins, 490 U.S. 228, 245
(1989) (characterizing the Mount Healthy test as a “ba-
lance of burdens’’). The plaintiff who alleges retaliation
for the exercise of his constitutionally protected rights
thus has the burden of showing that the protected con-
duct was a “substantial” or “motivating” factor in the
defendant’s action. O’Connor v. Chicago Transit Auth.,
14
14 No. 93-1300
985 F.2d 1362, 1368 (7th Cir. 1993). If the plaintiff meets
this burden, the burden then shifts to the defendant to
prove by a preponderance of the evidence that the plain-
tiff would not have attained the position he sought even
without the protected speech considerations. Garrett v.
Barnes, 961 F.2d 629, 632 (7th Cir. 1992).
Under this test, “the fact that [the plaintiff's) protected
speech may precede an adverse employment decision alone
does not establish causation under Mount Healthy.” O’Con-
nor, 985 F.2d at 1370. The plaintiff could have been turned
down “for a good reason or for no reason at all,” as long
as it was not because of constitutionally protected activ-
ities. Garrett, 961 F.2d at 633. The defendant does not
have to prove a legitimate reason for taking adverse ac-
tion against the plaintiff until the plaintiff has come forth
with sufficient evidence to support a prima facie case of
substantial motivation. Jd. An employer’s presentation of
uncontradicted evidence that the department was being
reorganized establishes a legitimate reason for not reap-
pointing this plaintiff. Jd. at 634 (stating that a “re-orga-
nization is a legitimate reason to terminate someone who
is performing satisfactorily”) (citing Misek v. City of Chi-
cago, 783 F.2d 98 (7th Cir. 1986)). The plaintiff can, of
course, challenge the legitimacy of the reorganization. Jd.
The district court was of the view that Ms. Cromley
failed to produce evidence sufficient to support a finding
that the call to DCFS, admittedly protected speech, was
a substantial factor in the decision not to renew her ad-
ministrative position. It was also of the view, expressed
as an alternative holding, that, even if the call had been
a substantial factor in the decision, it was clear that the
decision not to reappoint her would have been made in
any event. We believe that the district court was correct
in both estimations.
Ms. Cromley contends that the decision to merge these
departments was made spontaneously on March 27, 1989,
and was not based on any legitimate educational purpose.
See R.101, ¢{ 11.03, 11.04 at 8-9 (Plaintiff's Response to
:
4
a
i
15
No. 93-1300 15
Defendants’ Statement of Uncontested Facts). The defen-
dants agree that Ms. Cromley was told of the merger by
the principal on March 27, 1989, but explain that the mer-
ger had been recommended in 1982, and that discussions
had been ongoing at the administrative level since the fall
of 1986 and were “probably finalized in early March [1987]
ing curriculum and implementation of the English
recommendations.” R.95, 4{ 11.08, 11.04 at 62 (Defendants’
Statement of Uncontested Facts). Even though she dis-
putes these facts, Ms. Cromley does not deny a conver-
sation in 1986 with the assistant principal concerning the
administration’s reasons for wanting a merger of the two
departments.® Because these statements by the defendants,
including some taken from the plaintiff's own deposition,
are uncontested, they must be treated by the court as
admitted. See Schulz v. Serfilco, Ltd., 965 F.2d 516, 519
(7th Cir. 1992) (stating that, because plaintiff failed to re-
spond to enumerated Rule 12(m) statements, the facts were
deemed admitted by plaintiff under Rule 12(n)). Therefore,
Ms. Cromley’s claim that the merger decision was made
spontaneously after her telephone call to DCFS cannot
support an assertion that the call to DCF'S was a substan-
tial factor in the decision against reappointment.
6 The following facts set forth by the defendants were uncon-
tested by Ms. Cromley in her Response to Defendants’ Statement
of Uncontested Facts at R.101:
11.14 Cromley understood from discussions with Ward that
the administration wanted to combine the English and Reading
Departments so that students would not be able to go through
four years of high school without taking an English course.
[C Dep. 370-371]
11.15 This conversation about the possibility of combining
ee [CRM Dep.
11.16 The Union President Fender had heard numerous peo-
le talking about the merger of English and Reading and it
been a possibility and a topic of discussion for many years
at Lockport High School. [FND Dep. 111]
R.95 at 65.
16
16 No. 93-1300
Moreover, even if the merger of the departments had
occurred without earlier discussion with Ms. Cromley and
even if we were to construe such thin circumstantial evi-
dence to raise a triable issue as to whether the call to
DCFS was a substantial factor in the decision not to reap-
point Ms. Cromley, she could not avoid summary judg-
ment on this basis. Ms. Cromley still would not have an-
swered the defendants’ contention that the ization
would have occurred even absent her call to DCFS. As
the district court concluded, it was clear that the super-
intendent, knowing of the broader conflict between Ms.
Cromley and Meints, would not have let her remain in
a su isory role over him, even if she had not called
DCFS. With respect to the Chapter I Coordinator posi-
rr. the district court noted that, —— this —
id not require direct supervision over Meints, it did re-
quire that the incumbent work well with the school ad-
ministration. The district court stated that, by the time
this position was filled, Ms. Cromley’s working relation-
ship with school officials had deteriorated substantially for
reasons that did not hinge on the call to DCF. This anal-
ysis is entirely consistent with the Connick Court’s posi-
tion that, “{wJhen close working relationships are essen-
tial to ing public responsibilities, a wide degree of
deference to employer’s judgment is appropriate.”
Connick, 461 U.S. at 151-52.
Because Ms. Cromley did not present evidence, direct
Sor nat resppelaiing ber, veretall of tie auaniaty. oka.
or not reappointing her, rev judg-
ment is not warranted. Ms. Cromley met her initial bur-
den by alleging that she had exercised her con-
stitutional right of speech, and that the School Board
had retaliated. However, we agree with the district court’s
conclusion that no reasonable jury could find that Ms.
Cromley has met her burden of establishing that her com-
plaint to DCFS was a substantial factor in the decision
to merge the two departments. Nor, assuming arguendo
that she did meet her burden of demonstrating that the
call was a substantial factor, did she show that the deci-
sion against reappointment would have been any different.
17
No. 93-1300 17
She could not ignore the defendants’ assertions in their
Statement of Uncontested Facts that her protected speech
was not a substantial factor in the decision and that, even
if that speech had been such a factor, the decision of the
defendants would have been the same. Ms. Cromley has
failed to contest the substantial accuracy of those conten-
tions; therefore, summary judgment was appropriate.’
Conclusion
We conclude that the district court did not err in denying
Ms. Cromley’s motion for disqualification of defendants’
attorneys. We also hold that the district court properly
granted summary judgment to the defendants. According-
iy, the judgment of the district court is affirmed.
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA AOTXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—33-94
— F
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 93-1300
MARCIA ANN CROMLEY,
Plaintiff-Appellant,
V.
BOARD OF EDUCATION OF LOCKPORT TOWNSHIP
HIGH SCHOOL DISTRICT 205, DONALD E. WEBER,
RICHARD J. DITTLE, AND DONALD MEINTS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Dlinois
No. 87 C 9767—James B. Moran, Chief Judge.
[September 9, 1993]
HON. THOMAS E. FAIRCHILD, Circuit Judge
HON. JOHN L. COFFEY, Circuit Judge
HON. KENNETH F. RIPPLE, Circuit Judge
JUDGMENT — WITH ORAL ARGUMENT
The judgment of the District Court is AFFIRMED, with
costs, in accordance with the decision of this court entered on
this date.
- 19 -
be eee
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARCELLA ANN CROMLEY,
Plaintiff,
No. 91 C 2686 v.
BOARD OF EDUCATION OF LOCKPORT TOWNSHIP
HIGH SCHOOL DISTRICT 205, DONALD E. WEBER,
RICHARD J. DITTLE, AND DONALD MEINTS,
Defendants.
MEMORANDUM OPINION AND ORDER
Defendants request that this court, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, grant their motion to dismiss
plaintiff's complaint. In such circumstances any inference drawn
must be favorable to the plaintiff, United Milk Products Co. v.
Michigan Avenue National Bank of Chicago, 401 F.2d 14, 17 (7th
Cir. 1968), and the allegations contained in the complaint are to be
accepted as true. National Van Lines, Inc. v. United States, 326
F.2d 362, 372 (7th Cir. 1964); 5 Wright, Miller & Cooper, Federal
Practice and Procedure §1363 at 656 (1969).
FACTS
Viewing the complaint in the light most favorable to the
plainuff, the facts underlying this dispute appear as follows:
Plaintiff Marcella Ann Cromley (‘‘Cromley’’) was employed as
a reading instructor by the Board of Education of Lockport
Township High School District 205, Will County, Illinois (the
‘“Board’’) from the 1974-75 school year up to and including the
1977-78 academic year, at the District's Central Campus. For the
1978-79 school year the Board selected Cromley to be the Reading
Department Chairperson/Chapter 1 Director upon the
recommendation of defendant Donald Weber (‘‘Weber’’), then
principal of the East Campus and now superintendent of District
205. Cromley had been reappointed to this position every year
through the 1986-87 school year.
- 20 -
In December 1986 two female students informed Cromley that
defendant Donald Meints (‘‘Meints’’), a reading teacher employed
by the Board at the East Campus, had kissed them and another
female student. They also described how Meints on several occa-
sions had rubbed their necks and shoulders in a way that offended
them and that he had also made sexually-offensive comments.
Cromley considered each of these described incidents unprofes-
sional and sexual harassment. Later that month, Cromley informed
the principal of East Campus, defendant Richard J. Dittle (‘‘Dit-
tle’’), of the students’ complaints. Dittle had the school social
worker interview the complaining students, after which he person-
ally interviewed them. The social worker told Dittle that the girls
had in fact complained about Meints, and the social worker added
that she too had heard complaints from students that Meints rubbed
their shoulders in a way they thought sexual and offensive. Dittle
confirmed to Cromiey that the students had reiterated their com-
plaints to him and added that they told him of Meints’ kissing
them as he slid his hand down their buttocks.
Dittle discussed the matter with Meints without informing the
Nlinois Department of Children and Family Services (*‘DCFS’’) of
the students’ complaints or describing the discussion. Dittle also
failed to place a report in Meints’ personal file. On February 12,
1987, Cromley called the DCFS herself. She reported the facts
concerning the allegations of the two students and gave her name.
Five days later DCFS representatives came to District 205 to inves-
tigate Cromiey’s complaint but Dittle refused to allow Cromley to
speak with them.
On March 4, 1987, Cromley noted the students’ allegations in
her yearly performance evaluation of Meints executed pursuant to
her duties as Reading department chairperson. Méeints rebutted
Cromley’s evaluation in writing (‘the rebuttal*‘) and at a meeting
on March 16, 1987, distributed it to Dittle, the American Federa-
tion of Teachers’’ (*‘AFT’’) president, an AFT grievance commit-
tee member, Meints, and Cromley. Around the time of the meeting
Meints showed additional representatives of the AFT his rebuttal
and informed other teachers of its contents. The rebuttal claimed
that Cromley’s evaluation was a ‘‘malicious, vindictive, vengeful
attempt to discredit me both as a person and as an educator,’’ that
it was “‘nfe with innuendos, insinuations, fabrications, and half-
truths,’’ and that ‘‘Cromley’s remarks which, based on hearsay,
were taken out of context, contorted, and made ‘dirty’ by a mind
which is consumed with and obsessed with finding all references to
women as sexually motivated’’ (cplt. 15). The rebuttal also stated
that, ‘‘perhaps I should sympathize with a person who looks at
everything in such a jaded, contorted, twisted manner.’’ /d Meints
also told other teachers that Cromley had made an anonymous tele-
phone call reporting him to the DCFS.
Subsequent to Cromley’s telling Dittle that she intended to seek
legal advice with respect to the statements being circulated about
her, Dittle met with Weber on March 27, 1987. Although Cromley
had been previously told that she would be maintained in her
current positions, Dittle informed her that, beginning with the
1987-88 school year, the Reading department was being merged
into the English Department and, as a result, the position of Read-
ing Department chairperson was being eliminated.
Cromley’s yearly evaluations from 1982-83 through 1985-86
described her work as ‘‘exemplary,’’ ‘‘excellent,’’ ‘‘effective,”’
‘‘very good job,’’ ‘‘on top of her field,’’ and recommended her for
reappointment for each subsequent year (cplt. 19). Cromley’s
1986-87 evaluation noted problems with personnel in the Reading
Department but contained no remarks with respect to reappoint-
ment.
In Apri] 1987 Cromley applied for the position of Gified Coor-
dinator and Chapter 1 Coordinator, in response to the posted notice
of the opening. On May 1 she was told that the position was
awarded to Steven Midlock, an individual whom Cromley alleges
‘‘was mot as qualified for the position’’ as herself (cplt. 122).
Weber recommended Midlock to the Board for the position of
Chapter 1 coordinator, but the appointment failed because of a tie
vote. Thus, on May 21 the position was reposted, and Cromley
and Midlock both reapplied.
The same day on which Cromley reapplied, May 26, she asked
Weber for a written account for the reasons why she was not reap-
pointed as Chapter 1 Director for the 1987-88 academic year.
Weber responded the next day with a writing which included,
among other comments, that ‘‘[a]t no time were your qualifications
for this position viewed in a negative fashion; as a matter of fact,
e 22 «
quite to the contrary, your past commitment to this program and
completion of the tasks at hand have been thorough and supported
by Chapter 1 review team evaluations’’ (cplt. 28). During the
summer of 1987 Midlock accepted employment in another school
district. Other than Cromley, Midlock was the only applicant for
the Chapter 1 Coordinator position. In early July the Board posted
the position of English Department Chairperson, without meantion-
ing the Chapter 1 Coordinator vacancy.
Cromley wrote a ‘“‘Response to March 16, 1987, response’’)
dated July 15, 1987. Cromley attached exhibits and requested that
the administration place a copy in Meints’ personnel file. Dittle
refused this request.
On July 15, 1987, notice was posted for the position of Associ-
ate English Department Chairperson. Cromley subsequently filed
an application for the position in which she argued that the respon-
sibilities of the Chapter 1 Coordinator would blend well with those
of the Associate English Department Chairperson. Though Crom-
ley was the only applicant from within District 205, she was
notified on August 12 that another person was recommended for
the associate chairperson position. On August 18 the Board, on
Weber’s recommendation, hired Carol Garrett as an English teacher
an appointed her Associate English Department Chairperson. Gar-
rett was previously not a teacher in District 205 and Cromley
alleges that ‘‘Garrett was not as qualified as herself (cplt. 40).
A special meeting of the Board, held on July 25, appointed
Sandra Martin English Department chairperson and Chapter 1
Coordinator. Cromley contends that Martin ’’was not as qualified
for the Chapter 1 position‘ as herself (cplt. 37) and also that Mar-
tin has not timely applied for the position pursuant to the May
1987 posting.
Cromley brought suit alleging, inter alia, that Weber, Dittle,
and the Board of Education knew or reasonably should have known
that their actions and conduct in (1) eliminating the Reading
Department; and/or (2) not reappointing Cromley to the Chapter 1
Director position; and/or (3) not recommending Cromley for the
then vacant Chapter 1 Director position; and/or (4) not recommend-
ing Cromley for the Associate English Department Chairperson
position, violated Cromley’s First and Fourteenth Amendment
BP eNO A mere a ill as ONES Ta No ON ce Tae « dacs uate tna,
a EL ett bt R GING OTS
.
freedoms. Plaintiff alleges causes an action pursuant to 42 U.S.C.
§1983 against the Board, against Weber and Dittle individually and
in their respective official capacities, and against Meints. She also
alleges that Weber and Dittle conspired together to bring about
these same ends. Cromley submits pendent state claims for defa-
mation, retaliatory action, intentional interference with contractual
relations and intentional infliction of emotional distress.
DISCUSSION
|. Section 1983 Claims
Plaintiff's counts I through III state claims under the First and
Fourteenth Amendments to the U.S. Constitution and thereby under
42 U.S.C. $1983. Section 1983 prohibits persons acting under
color of state law from depriving any person of any rights,
privileges or immunities secured by the Constitution or federal law.
Thus plaintiff must have pled both that there were the requisite
actions under color of state law and that she was thereby denied a
protected right.
Plaintiff apparently seeks damages in count I from th
Board/County; in counts [I] and [II] she alleges the liability of par-
ticular individuals (the former concerning Dittle, the latter,
Weber);' and in count IV the conspiracy charge is detailed.
A. Deprivation of a Protected Right — Cromiey’s Speech
To state her claim under §1983 plaintiff must allege that defen-
dants retaliated against her on the basis of protected speech. That
public employees do not relinquish their First Amendment rights as
a condition of employment is beyond dispute. Equally clear is that
1. Defendants are correct that “fa]s to Count 1, Plainuffs
allegations are vague and confusing** (def. mem. at 2). The
problem is that count I includes each and every background fact
of concern. Both this court and defendants have had to
ascertain count I[’s scope via the context surrounding counts II
and Ill.
o
in order to create an environment conductive to educating students,
certain restrictions on the speech of public school teachers are
necessary. What is therefore required is *’a balance between the
interests of the teacher, as a citizen, in commenting upon matters of
public concern, and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through
its employees.*‘ Pickering v. Board of Education, 391 U.S. 563,
568 (1968). The fear that post-hoc judicial evaluation might effec-
tively prevent school boards from acting on internal matters wholly
irrelevant to speech led the Supreme Court in Mt Healthy\fICity
Board of Education v. Doyle, 429 U.S. 274 (1977), to create a test
which protects both teachers and school boards. Mt. Healthy holds
that the plaintiff-teacher must demonstrate that his or her conduct
was protected by both the First and Fourteenth Amendments, and
also that such conduct played a substantial part in the decision not
to rehire. Jd at 285-86. Once that demonstration is made the bur-
den shifts to the board to demonstrate by a preponderance of the
evidence that it would have reached the same decision even in the
absence of the “protected conduct.** /d at 285-87. We employ
the same test here where the plainuff alleges not that she was fired
but rather that she was victimized by other forms of retaliation.
The first Amendment protects speech that addresses issues of
“public concern,*‘ as opposed to matters of (1982). Protected
speech includes employee expression which can *’be fairly con-
sidered as relating to any matter of political, social, or other con-
cern to the community.** /d at 146.
Plaintiff here alleged sufficient facts to bring her speech within
the ambit of First Amendment protection. Cromley informed Dittle
about student complaints, reported them to the DCFS.* and
2. Whether the Abused and Neglected Child Reporting Act
(°ANCRA‘*), ch. 23, §2051 et seg. then compelled reporting to
the DCFS is irrelevant to whether or not Cromley’s speech is
constituuonally protected. To suggest otherwise would place
the legislature, who decides when reporting is legally required,
in control of the First Amendment’s scope.
ABS Zhe ett hes
a
¥
x
2
4
2
reiterated them in her yearly performance evaluation of Meints.*
Allegations that Meints had taken sexual liberties with his students
are of obvious concern to the community of Lockport. See, e.g.,
Kufalk v. Hart, 610 F.Supp. 1178, 1183 (N.D. Ill. 1985) <holding
plaintiff's oral criticism of defendants’ ’’application and interpreta-
tion of regulations concerning the prevention of abuse‘‘ of disabled
clients to be of public concern and therefore constitutionally pro-
tected).
Defendants also allege that the Pickering balancing tests renders
Cromley’s speech unprotected because Dittle had a ’’compelling
interest in beginning to restore the working relationships and in
resuming regular operations‘* (defendants’ motion in support of
motion to dismiss (hereafter *’def. mem.‘‘) at 4). Whether the
State’s interest herein outweighs Cromley’s interest in speaking on
a matter of public concern is impossible to evaluate at this time.
As previously meationed, this court’s inquiry does not go beyond
the scope of the plaintiffs complaint wherein plaintiff alleges that
the elimination of the reading department and her not being recom-
mended for and/or appointed to other positions, were solely in
retaliation for her exercise of constitutional and statutory rights.
Furthermore, defendants recite no workplace efficiency
justifications for the alleged retaliation (merging the departments
and denying her subsequent applications) which might serve to
explain the aforementioned actions and perhaps outweigh
Cromley’s speech interests.+ Defendants merely justify Dittle’s
3. Private communications are also afforded constitutional
protection. Givhan v. Western Line Consolidated School
District, 439 U.S. 410 (1979).
4. For example, in Connick the Court upheld the employee’s
dismissal:
Connick’s judgment, and apparently also that of his first
assistant Dennis Waldron, who characterized Myers’
actions as Causing a °’mini-insurrection,“‘ was that
Myer’s questionnaire was an act of insubordination
which interfered with working relationships. When close
working relationships are essential to fulfilling public
responsibilities, a wide degree of deference to the
- 26 -
concluding his investigation in a way unsatisfactory to Cromley.
They do not address the crux of Cromley’s claim — that not only
was no disciplinary action taken against Meints, but also that
Cromley herself was the subject of retaliation.
The second relevant issue is whether the defendants’ conduct
was a ‘’substantial factor*‘ in precipitating plaintiffs damages.
The first Mt. Healthy inquiry, ascertaining whether the plaintiff's
speech was protected, is answered affirmatively above. And with
regard to the second inquiry, plaintiff also sufficiently alleges that
protected conduct was a substantial factor in the actions by the
Board, Dittle and Weber which led to her damages. For example,
at 43 the complaint avers:
Because of the aforesaid protected conduct and actions of
Cromley, the Board of Education, upon the recommendations
of Dittle, eliminated the Reading Department, thus elim-
inated the position Cromley held as Reading Department
Chairperson. Weber and Dittle refused and/or failed to
recommend to the Board of Education that Cromley be reap-
pointed as Chapter 1 Director and/or appointed as Associate
English Department Chairperson, and the Board of Education
did not reappoint or appoint Cromley to said positions, all in
retaliation for for her exercise of and in violation of the
aforesaid constitutional an statutory rights.
(Emphasis added.) Thus, the second inquiry is satisfied and
plainuff has thus pled allegations sufficient to meet her burden
under Mt. Healthy. The remainder of the test — that the defendants
must demonstrate that their actions would have been taken nonethe-
less — is irrelevant to defendant’s Rule 12(b)(6) motion.*
employer's judgment is appropriate.
461 U.S. at 151-52.
5. Nothing in this opinion should be taken to suggest that this
court foresees that the defendants will not be able to meet this
burden. The conclusion here is merely that the complaint
Survives the scrutiny appropriate to a motion to dismiss.
2.
B. Color of State Law
To state a claim under §1983 plaintiff must allege that the
defendants acted under "color of state law.‘‘ This court finds
plaintiff's allegations sufficient. Almost by definition the Board of
Education acted under color of state law. And, with regard to Dit-
tle and Weber *’the plaintiff describes each defendant and his
official position. This is sufficient to support the inference in a
motion to dismiss that defendants acted under color of state law.**
Marshall v. Sprangler, 397 F.Supp. 200, 202 (W.D. Va. 1975).
C. Board/County Liability
The Supreme Court’s decision in Monell v. Department of
Social Services of the City of New York, 436 U.S. 658 (1978), held
that a local municipal body may be held liable for its own constitu-
tional violations under 42 U.S.C. §1983 and may not be sued under
a theory of respondeat superior. Under this standard local munici-
pal bodies may be sued ’’for constitutional deprivations visited pur-
suant to governmental ’custom.’** Jd. at 690-91. And such poli-
cies or customs need not be reduced to writing:
Congress included customs and usages [in §1983] because of
the persistent and widespread discriminatory practices of
state Officials .... Although not authorized by written law,
such practices of state officials could well be so permanent
and well settled as to constitute a custom of usage** with
the force of law.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970),
quoted in Monell, 436 U.S. at 691.
Even given the liberal boundaries of notice pleading in the con-
text of a motion to dismiss, ’’a section 1983 plaintiff must do more
than merely parrot the language of Monell or copy conclusory
language from assorted decisions of other courts in which Monell-
type claims have been upheld.** Hamrick v. Lewis, 515 F.Supp.
983, 986 (N.D. Hl. 1981). To satisfy this pleading obligation,
plaintiff contends that where the defendant is a decision-making
body a single decision may be sufficient under Monell.®
P
The Supreme Court’s decision in Pembaur vy. City of Cincin-
nati, 475 U.S. 469 (1986), held that, in some circumsiances, muni-
cipal liability may be imposed for a single decision. The Court
therein evaluated the basis for Monell:
to distinguish acts of the municipality from acts of employees
of the municipality, and thereby make clear that municipal
liability is limited to action for which the municipality is
actually responsible. Monell reasoned that recovery from a
municipality is limited to acts that are, properly speaking,
acts of the municipality’’ —that is acts which the munici-
pality has officially sanctioned or ordered. With this under-
standing, it is plain that municipal liability may be imposed
for a single decision by municipal policy-makers under
appropriate circumstances.
* KK
If the decision to adopt that particular course of action is
properly made by that government’s authorized decision
makers, it surely represents an act of official government
“‘policy’’ as that term is commonly understood. More
importantly, where action is directed by those who establish
governmental policy, the municipality is equally responsible
whether that action is to be taken only once or to be taken
repeatedly. To deny compensation to he victim would there-
fore be contrary to the fundamental purpose of §1983.
Id. at 479-81. Thus, as the policymaking body to whom Lock-
port delegated authority as to educational staffing questions, the
board of education is liable not on a respondeat superior theory
but because of their unique position.’ JSee Kingsville Independeni
6. Plaintiff also contends that the alleged multiple decisions made
by the Board which operated to damage Cromley are sufficient
to establish a policy or custem under Monell. The court need
not reach this issue given its holding that the Board’s position
as ultimate decision maker with regard to the decisions affecting
Cromley suffices under Monell.
7. Clarification was provided in Pembaur’s footnote 12:
Thus, for example, the County Sheriff may have
discretion to hire and fire employees without also being
ACM i te
_.
School District v. Cooper, 611 F.2d 9 (Sth Cir. 1980) (holding
school district liable for the actions of its board in firing a teacher
because the only way the district could act was through its board of
trustees); see also Stoddard v. School District, 590 F.2d 829 (10th
Cir. 1979) (holding school district liable for the actions of its board
in failing to renew a teacher’s contract because the district had
acted through its board of trustees).® Thus, assuming as correct the
complaint’s allegations that the Board retaliated against Cromiey
for exercising her constitutionally-protected rights (cplt. par. 43),
Monell would not bar relief. Because the school board is the
official policy-maker, liability is not precluded.
D. Individual Capacity Liability
Defendants Weber and Dittle contend that there is insufficient
nexus between their actions and Cromley’s damages because they
did not have the requisite ability to discharge’ or appoint employ-
ees. Yet this court is duty bound to hold the individual defendants
the county official responsible for establishing county
employment policy. If this were the case, the Sheriff's
decisions respecting employment would not give mise to
municipal liability, although similar decisions with
respect to law enforcement practices, over which the
Sheriff is the official policymaker, would give rise to
municipal liability.
475 U.S. at 483 (emphasis in original). The actions which
Cromley alleges to have been retaliatory, eliminating the
Reading Department and denying her subsequent applications,
clearly aie decisions of the Board.
8. Because the defendant at issue is the Lockpurt Board of
Education itself and not the school district, the justification for
liability is even more compelling.
9. Defendants presumably intend ‘‘discharge’’ to include control
over the elimination of departments with the consequent
‘‘discharging’’ of the former chairpersons.
liable for their own actions. Both Dittle and Weber are alleged to
have intentionally made retaliatory recommendations which effec-
tively operated to Cromley’s detriment (cplt. 47(e), 48(e)).!° Such
allegations are more than sufficient to meet the bad faith standard
of Hutto v. Finney, 437 U.S. 678, 700 (1978). The extent to which
these actions contributed to the plaintiff's alleged damages is a
question of fact inappropriate for determination at this ime. Were
plainuff's allegations proven correct — that but for Weber and
Dittle’s retaliation her damages would have been avoided — she
would be entitled to relief. Thus, as a matter of law, plaintiff
alleges claims against both Weber and Dittle, individually, upon
which relief can be granted.
E. Official Capacity Liability
The action against Weber and Dittle in their official capacities
is another way of alleging school district liability. The complaint
makes it plain, however, that the school board was the decision-
maker. If it, encouraged by Weber and Dittle retaliated against
plaintiff, then the school district is liable. If it did not retaliate but
was, rather, misled by Weber and Dittle, then the school district
would not be liable although Weber and Dittle may personally be
answerable for a constitutional tort. The suit against Weber and
Ditte in their official capacities adds nothing in those cir-
cumstances. Cromley’s claim against them in the« official capaci-
ties is dismissed.
F. Conspiracy
In order to establish a prima facie case of conspiracy plaintiff
must allege an agreement by two or more persons acting in concert
to commit an unlawful act, or to commit a lawful act by unlawful
means. This court need not address the sufficiency of plaintiff's
allegations as to whether an agreement existed, nor need it evaluate
10. Counts II and III both have paragraphs numbered 45-48. The
textually cited paragraph numbers correspond to those actually
in the complaint.
:
;
*
§
=
whether defendants committed the requisite overt act. Instead, this
court holds that the conspiracy allegations fall within the intracor-
porate conspiracy doctrine articulated in Dombrowski v. Dowling,
459 F.2d 190 Cir. 1972).
In Dombrowski, Judge now Justice Stevens applied antitrust’s
intracorporate conspiracy doctrine to §1985 civil rights actions:
that ‘‘two or more persons ...conspire or go in disguise on
the highway,” is not satisfied by proof that a discriminatory
business decision reflects the collective judgment of two or
more executives of the same firm.
single act of discrimination by a single business entity, the
fact that two or more agents participated in the decision or in
the act itself will normally not constitute the conspiracy con-
templated by [§1985(3)].
Id. at 196. Because this court finds the Seventh Circuit's
intracorporate conspiracy doctrine equally applicable to the indivi-
dual defendants at bar, and the school board, we answer negatively
the question left open in Cohen v. Iillinots Institute of Technology,
524 F.2d 818, 830 (7th Cir. 1975), cert. denied, 425 U.S. 943 (19
) (*we do not reach the issue whether a determination of policy by
an institute and its executives can be a ‘conspiracy’ within the
meaning of [$1985 (3)]'’), as it relates to conspiracies to violate
$1983.
Weber and Dittle’s ability to injure Cromley deprived solely
from their positions within the school district and the influence
they wielded therefrom. They had no ability, as individuals, to
affect Cromley’s employment position. Thus, within the meaning
of Dombrowski, as pronounced and defined by the Seventh Cir-
cuit,'! plaintiff's proper causes of action have already been alleged
in counts I through III; the conspiracy count would *‘appear to add
11. This court cannot, as plaintiff urges, reject the Seventh Circuit's
longstanding application of the imtracorporate conspiracy
doctrine beyond its antitrust ongins.
- 32 -
nothing in terms of defendant’s liability.’ Walker v. Woodward
Governor Co., 631 F.Supp. 91, 95 (N.D. Ill. 1986).
Invoking Stathos v. Bowden, 728 F.2d 15 (1st Cir. 1984), plain-
uff contends that the numerous acts committed in furtherance of
the alleged conspiracy render the intracorporate conspiracy doctrine
inapplicable. Yet, as long as merely one entity is involved this
court fails to see how multiplication creates addition — how the
frequency with which the plaintiff's nghts were allegedly violated
can impact on the conspiracy issue. We cannot resolve this “‘con-
ceptual difficulty.” Coley v. M & M Mars, Inc., 461 F.Supp.
1073, 1077 (M.D. Ga 1978); see also Weaver v. Gross, 605
F.Supp. 210, 214-215 (D.D.C. 1985). Count IV is therefore
dismissed.
G. Damages
1. Injury to Reputation
Defendants concede that injury to reputation is compensable
where constitutional rights are deprived. Because the plaintiff ade-
quately alleges that defendants retaliated against her exercise of
First Amendment freedoms, her claim for injury to reputation can-
not be dismissed at this time.
2. Mandamus
Plainuff's allegation that the Reading department was elim-
inated in retaliation for her constitutionally-protected speech is
insufficient justification for plaintiff's plea for mandamus. Plaintiff
urges, without citation, that reinstatement via mandamus is
appropriate where individuals allege retaliation for exercising their
First Amendment rights. Courts have held backpay to be an
insufficient remedy because it does not rectify the chilling effect
created by retaliation. See, e.g., Banks v. Burkich, 788 F.2d 1161,
1164 (6th Cir. 1986) (“The prospect of money damages will not be
sufficient for many employees to overcome the otherwise chilling
effect that accompanies the threat of termination’’). But courts
have more general equitable powers with which to address the
problem: we can order reinstatement without the use of man-
damus. See, e.g., Reeves v. Claiborne County Bd. of Educ., 828
F.2d 1096 (5th Cir. 1987); see also Banks v. Burkich, supra. Thus
|
2
mandamus would be inappropriate here.
3. Qualified Immunity
Harlow v. Fitzgerald, 457 U.S. 800 (1981) sets out the criteria
by which to determine whether particular conduct of officials is
shielded by immunity. Such immunity is available to individual
defendants ‘‘insofar as their conduct does not violate clearly esta-
blished statutory or constitutional rights of which a reasonable per-
son would have known.’’ /d at 818. In the case at bar plaintiff
has sufficiently alleged that the individual defendants — Dittle and
Weber — acted in ‘‘reckless or callous disregard of, or indifference
to, said [constitutional] rights,’’ and that they ‘“‘knew or reasonably
should have known’’ that their retaliatory actions violated
Cromley’s First Amendment freedoms (cplt. at 44, 47, 48.)
Whether the Abused and Neglected Child Reporting Act’s scope
reached school personnel is irrelevant. Plainuff's constitutionally-
protected speech consisted of informing Dittle about student com-
plaints, reporting them to the DCFS and reiterating them in Meints’
yearly performance evaluation. See supra 1.A. and accompanying
notes. No one disputes defendants’ contentions that they ‘‘are enti-
tled to exercise their discretion in hiring, within the bounds of Illi-
nois and contract law’’ (Def. Mem. at 9-10). We would merely
add that this discretion is also subject to the constraints imposed by
the federal Constitution and statutory law. Because plaintiff's con-
tentions are sufficient to meet the Harlow standard, dismissal on
the basis of qualified immunity is inappropriate.
4. Punitive Damages
The defendants contend, without further explanation, that the
Board is immune from punitive damages under §1983. Suffice it
to say, this is a drastic oversimplification of a very complex part of
$1983 litigation. The assertion is correct insofar as it applies
12. To reiterate, counts II and III both have paragraphs numbered
45-48 and the textually cited paragraph numbers correspond to
those actually used in the complaint.
exclusively to the punitive damages claim against the Board itself.
City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
With regard to Weber and Dittle, in their individual capacities,
punitive damages are available if their conduct resulted from
“reckless or callous disregard for the plaintiff's rights, as well [as
from] intentional violations of federal law’’. Smith v. Wade, 461
U.S. 30, 51 (1983). The plaintiff has pled reckless disregard of
and indifference to her First Amendment rights, and therefore her
allegations are sufficient to avoid Rule 12(b)(6) dismissal of the
puniuve damages claim; the issue can, of course, be revisited after
discovery on a motion for summary judgment. See, e.g., Kufalk v.
Hart, -10 F.Supp. 1178, 1191 (N.D. Ill. 1985).'4
13. As is explained infra at note 15, the Board’s freedom from
punitive damage claims described in City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981), applies only to direct
actions against the Board and not to litigation arising out of the
Board’s indemnification of officials.
i4. The Seventh Circuit’s Kolar opinion isn’t as succinct as
defendants implicitly suggest, nor as sweeping as plaintff
contends. in Kolar the court permitted a plaintiff in a $1983
acuon to recover punitive damages from the county. After
noung the general rule that “‘local public entities are immune
from punitive damage awards in civil rights actions,”’ the court
held that the Illinois Local Government and Governmental
Employees Tort Immunity Act (‘‘the Tort Immunity Act’’),
Nil.Rev.Stat. ch. 85, 9-102 (1983), waived the county’s common
law immunity from the $100 punitive damage claim awarded
plainuff Kolar. Cromley asserts that Kolar stands for the
proposition that “the Board’s immunity from liability for
punitive damages was waived by state law then [linois enacted
the Local Government and Governmental Employees Tort
Immunity Act’’) (pl. mem. in oppos. to def. mo to dis. at 17-
18). We find that conclusion misleading. Kolar decided only
that the Tort Immunity Act waived the county’s exposure as an
indemnitor, leaving intact the common 'aw immunity from
punitive damages articulated in City of Newport, in actions
brought directly against local public entities. See also Bell v.
City of Milwaukee, 746 F.2d 1205, 1271 (7th Cir. 1984)
ll. PENDENT CLAIMS
A. Libel and Slander'®
The complaint sets out three allegedly libelous passages or
remarks for which plaintiff seeks damages. The first two of these
are contained in Meints’ rebuttal to Cromley’s evaluation; one por-
trays the evaluation as a personal assault which the other attacks
Cromley’s personality as being preoccupied with sexual innuen-
does. The complaint also contends that Meints and Dittle defamed
Cromley by telling others that her call to the DCFS was made
anonymously. Cromley contends that these passages and remarks,
because they allegedly impute an inability or lack of integrity in
the discharge of her employment duties and injure her in her pro-
fession as a teacher and administrator, fall within he categories of
libel and slander per se. She also alleges what amounts to special
damages — that as a result of the alleged defamatory statements
(holding that the well-established policy of municipal immunity
from punitive damages precluded plaintiffs from recovering
punitive damages absent indemnification, but rejecting the
contention that such immunity precluded indemnification of the
punitive damages awarded against the individual defendants).
Thus defendants are correct insofar as Kolar supports their
contention that the defendant board is absolutely immune from
punitive damages. The holding does not, however, impact on
the exposure of the individuals. Nor does this immunity
preclude Board indemnification.
15. For the sake of simplicity, this court uses*‘libel’’ to refer to
both its traditional meaning as well as that previously associated
with ‘‘slander’’ because “‘Illinois law no longer recognizes any
substantive differences between the two causes of action.”’
American Pet Motels, Inc. v. Chicago Veterinary Medical
Association, 106 Ill. App. 3d 626, 629 n.1, 435 N.E.2d 1297,
1300 n.1, 62 M1l.Dec.325, 328 n.1 (1st Dist. 1982). We also use
‘‘defamation’’ to impart the same meaning.
« Ms
she lost and/or didn’t receive various positions.'®
Words are libelous per se if they are ‘‘so obviously and natur-
ally hurtful to the person aggrieved that proof of their injurious
character can be dispensed with.’’ See, e.g. Quilici v. Second
Amendment Foundation, 769 F.2d 414, 417-18 (7th Cir. 1985), cert
denied, 475 U.S. 1013 (1986). Two of the four categories of
words which constitute libel per se under Dlinois law are alleged in
this case. Cromley alleges that Meints, words both “‘impute an
inability to perform, or want of integrity in the discharge of duties
of an office or employment’ and also prejudice her in ‘‘her profes-
sion or trade.’” See, e.g., Quilici, 769 F.2d at 417 (citations omit-
ted).
The first allegedly defamatory remark from Meints is contained
in the initial paragraph of his rebuttal to Cromley’s evaluation:
I feel it necessary to take this opportunity to offer a rebuttal
to the evaluation of my teaching which was completed by
Ms. Cromley on March 3, 1987; a document that I can only
view aS a malicious, vindictive, vengeful attempt to discredit
me both as a person and as an educator. The observation
and evaluation report is nfe with innuendos, insinuations,
fabrications, and half-truths which certainly serve no good
purpose.
(Cplt. exh. B at 1). Initially, these comments consist merely of
Meints’ opinions as to the nature of Cromley’s initial evaluation.’
Taken as a whole, this passage reflects Meints’ opinion as to both
i6.Cromley alleges that “‘[aJs a result of Meints and Dittle’s
defamatory statements, Cromley has suffered the loss of her
position of Associate English Department Chairperson, other
injury to and loss of reputation in her profession, and severe
emouonal distress”’ (cplt. at 59).
17. The sole example of a factual misrepresentation is plaintiff's
claim that Meints and Dittle stated her phone call was made
anonymously (pls. mem. at 29).
~%?.
the content of the evaluation as well as his explanation of why it
was written as it was. While Meints’ comments are hardly ambi-
guous, they are not “‘capable of objective verification’’ — the aver-
age person would not infer that they had a ‘‘factual context’? —
and the broader context of the whole rebuttal “signals that the
Statement”’ is opinion. See Ollman v. Evans, 750 F.2d 970, 979
(D.C. Cir. 1984), cert. denied, 4/1 U.S. 1127 (1985); see also
Stevens y. Tillman, 661 F.Supp. 702, 708 (N.D. Ill. 1986).!® Such
Opinions are constitutionally protected: ‘‘However pernicious an
Opinion may seem, we depend for its correction not on the consci-
ence of judges and juries but on the competition of other ideas.”’
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1973). Addi-
tional speech, e.g., Cromley’s response to Meints’ rebuttal, would
therefore seem to be the appropriate remedy.'? As a matter of law,
18. Plaintiff invokes Stewart v. Chicago Title Insurance Co., 151
Ml.App.3d 888, 503 N.E.2d 580, 104 Il.Dec. 865 (4th Dist.
1987), for the proposition that expressions of opinion can
nonetheless be actionable where ‘‘it implies the allegation of
undisclosed defamatory facts and the basis for the opinion.’ /d.
at 15 il.App.3d at 891, 503 N.E.2d at 582, 104 Ill.Dec. at 867,
quoting the Restatement (second) of Tots §566 (1977). But this
court fails to see how Meints’ opinion could be interpreted as
being informed by undisclosed facts uniquely within his
knowledge. Further, the detailed nature of the rebuttal, that for
five pages Meints rebuts each allegation contained in Cromley’s
initial evaluation, strongly suggests that he has held nothing
back.
19.In fact, Cromley’s response of July 15 directly confronts
Meints’ allegations:
The use of emotional, pejorative terms, ‘malicious,
vindictive, vengeful,’’ as a preface to your ‘‘rebuttal’’
reflects your feelings about my character but provides no
explanation, either explicit or implicit, as to WHY I
would allegedly endeavor to *‘discredit’’ you as a person
or educator. Your introductory paragraph establishes the
climate for the remainder of the rebuttal — an angry
assault upon my character and an assault upon my
evaluation, which you characterize as ‘‘rife with
- 3%.
therefore, this passage is beyond the reach of libel law. See Oll-
man, 750 F.2d at 979. Moreover, these remarks dc not suggest
that Cromley is incapable of effectively executing her duties as an
evaluater of her coteachers; Meints maintains that this particular
document was an ‘“‘attempt to discredit me both as a person and as
an educator.’” ‘‘Although harsh and uncomplimentary, these words
amount to criticism of the plaintiffs conduct in a particular
instance and not a personal attack on the plaintiffs honesty or
character in general.’ Britton v. Winfield Public Library, 101
Ill.App.3d 546, 549, 428 N.E.2d 650, 652, 57 Ill.Dec. 100, 102 (2d
Dist. 1981). Thus an action for libel per se cannot be maintained
on these remarks.
The second allegedly defamatory remark from Meints is con-
tained in the seventh paragraph of his rebuttal:
Ms. Cromley’s remarks about “‘unprofessional sexual com-
ments’’ are remarks which, based on hearsay, were taken out
of context, contorted, and made ‘‘dirty’’ by a mind which is
consumed with and obsessed with finding all references to
women as sexually motivated.
(Cplt. exh. B at 2.) While these comment seem much closer to
crossing the line, we nonetheless hold them not libelous. When
taken as a whole, Meints’ rebuttal attempts to refute Cromley’s
allegations with respect to his teaching. The above passage is
Meints’ attempt to explain why Cromley could be so incorrect in
her evaluation. Thus, taken in context of the whole rebuttal, these
comments are more opinion and thus not actionable. Furthermore,
it is far from clear that Meints’ comments obviously and naturally
harm Cromley in her profession or impute an inability perform or
lack of integrity in discharging the duties of her job. As a
innuendoes, [sic], and half-truths.”’ In fact, I find
nothing substantive in your rebuttal as to why my factual
observations were incorrect.
(Cplt. exh. D at 1 (emphasis in original).)
«
department chairperson, Cromley evaluates the teaching abilities of
her subordinates. This court can, with a bit of imagination, con-
template situations in which Cromley’s alleged ‘‘dirty’’ mind might
create an inability to perform her work well. Her ability to evalu-
ate fairly male teachers might for example, be called ints question.
But the standard is strict: the harm contemplated must obviously
and naturally result. This not being the situation at oar, plaintiff's
libel per se claim cannot survive defendant’s motion to dismiss.
The third allegedly defamatory remark was purportedly uttered
by both Meints and Dittle. Cromley alleges that ‘‘Meints told
other teachers that Cromley made an anonymous telephone call
reporting him to DCFS”’ (cplt. 16) and that ‘‘Dittle made state-
ments to various administrators and teachers that Cromley made an
anonymous telephone call to DCFS concerning Meints’’ (id. at
53). Plaintiff claims not only that both Dittle and Meints knew
she had given her name, but also that the allegations of anonymity
were ‘‘false and slanderous, imputing an inability or lack of
integrity by Cromley in the discharge of her employment duties
and injuring Cromley in her position as a teacher and administra-
tor’ (id. at 54). For the purpose of ascertaining whether these
comments were libelous per se, Cromley’s interpretation of these
accounts is irrelevant. The operative legal question is whether the
comments are *‘so obviously and naturally hurtful to the person
aggrieved that proof of their injurious character can be dispensed
with.”” Quilici, 769 F.2d at 417-18. Méischaracterizing as
anonymous the reporting of another teacher to the DCFS cannot
possible meet this standard. That the plaintiff herself views
‘“‘anonymous calls to anyone as contemptible behavior’’ (cplt. exh.
C at 9) is irrelevant. Thus, this last remark, like the two passages
of Meints’ rebuttal discussed above, cannot be characterized as
libel per se.
Finally, this court doubts that it has jurisdiction to decide
whether plainuff's claim that she suffered damages as a result of
Meints’ and Dittle’s defamatory statements sufficiently alleges spe-
cial damages to constitute a cause of action for libel per quod. Jur-
isdiction of this court is premised on her §1983 allegations — that
in retaliation for her exercising constitutionally-protected rights she
suffered damages. She cannot simultaneously maintain and seek to
prove, for the purposes of her pendent libel claim, that these
identical damages were instead caused by the libelous remarks of
Meints and Dittle and not by a constitutional tort. Because Crom-
ley cannot maintain an action for libel per se, and because, in the
absence of persuasive authority to the contrary, this court believes
per quod cause of action, count V”° is dismissed.
B. Retaliatory Action
In Kelsay v. Motorola, Inc., 74 111.2d 172, 384 N.E.2d 353, 23
Nl.Dec.359 (Ill. 1978), the Supreme Court of Illinois joined the
growing number of states which have recognized the tort of retalia-
tory discharge. The court in Kelsay found that the public policy
furthered by the workers’ compensation system would be frustrated
if employees could be fired for filing worker’s compensation
claims. The court concluded that ‘‘we are convinced that to uphold
and implement this public policy a cause of action should exist for
retaliatory discharge.’” 74 [ll.2d at 181, 384 N.E.2d at 357, 23
Ill.Dec. at 563.7!
The contours of ‘‘public policy’’ were explored in Palmateer v.
International Harvester Co., 85 M11.2d 124, 421 N.E.2d 876, 52
Iil.Dec. 13 (ill. 1981). Palmateer dealt with plaintiff's allegations
that he was discharged for supplying information that a Harvester
employee might be violating the criminal Code to a local law
enforcement agency, for agreeing to gather further evidence impli-
cating the employee, and for intending to testify at the resulting
trial. The court conceded that “‘[njo specific constitutional or sta-
tutory provision requires a citizen to take an active part in the fer-
reting Out and prosecution of crime,’ but nonetheless held that
‘‘public policy nevertheless favors citizen crime-fighters."’ 85 Ml.
20.As a plaintiff has failed to make out a jurisdictionally
acceptable cause of action. thcie is no need for this court to
examine the various immunity issues.
21. Similar concerns are raised where retaliation short of discharge
serves to frustrate public policy. Consequently, we find the
retaliator, discharge case law applicable to the instant
allegation.
2d at 132, 421 N.E.2d at 880, 52 Ill.ec. at 17. The Supreme Court
of Dlinois thus reversed Harvester’s motion to dismiss and the case
was returned to the Circuit court for further proceedings.
Defendants allege that, prior to January 1, 1987, the Abused
and Neglected Child Reporting Act (‘“‘ANCRA’’) pertained only to
alleged abuse by persons in a child’s living environment. They
therefore claim that plaintiff states no valid public policy basis for
her actions. We disagree with defendant’s interpretation of the
pre-1987 scope of the Act. While P.A. 84-1318, approved Sep-
tember 3, 1986 and effective on January 1, 1987, explicitly inserted
‘education personnel’’ among the group of persons responsible for
the child’s welfare whose abuse or neglect would require reporting,
the conclusion that such individuals were not covered by the Act
prior to the amendments is far from clear. P.A. 84-1318 removed
a catchall provision —‘‘any other person responsible for the child’s
care at the time of the alleged abuse or neglect’’ — and instead
inserted a particularized list:
within a public or private profit or not for profit child care
facility; or any other person responsible for the child’s wel-
fare at the time of the alleged abuse or neglect, including but
not limited to health care professionals, educational person-
nel, recreational supervisors, and volunteers or Support per-
sonnel in any setting where children may be subject to abuse
or neglect.
1986 Ill.Laws 2764, Ill.Rev.Stat. ch. 23, 2053 (emphasis
added). Thus, it seems as if Cromley was required by ANCRA,
both before and after amendment, to report Meints’ alleged abuse;
She would seem to fall within the general provision as well as
within the particularized list. Furthermore, since 1980 the Mlinois
School Code has threatened a one-year suspension of one’s teach-
ing certificate for *‘willful failure to report an instance of suspected
child abuse or neglect as required by the "Abused and Neglect
Child Reporting Act,’ as now or hereafter amended.’’ 1984 III.
Laws 2028, Ill.Rev.Stat. ch. 23 2054. At a minimum, this provi-
sion, which was fully operative at the time of Cromley’s actions,
Suggests that the reporting of alleged child abuse furthered public
policy. As a tool for interpreting whether Cromley was compelled
to report the children’s allegations, this provision can only be
construed to suggest that teachers were required to report alleged
child abuse under threat of losing their teaching certificates long
before the 1986 amendments.
This court has little difficulty in characterizing Cromley’s
actions as in furtherance of public policy. The mere existence of
the ANCRA at the time of Cromley’s actions demonstrates the
importance which society has placed on the reporting of child
abuse. Like the plaintiff in Palmateer who supplied evidence to
the authorities and agreed to continue to aid in the investigation
and prosecution though not legally compelled to do so, Cromley’s
efforts furthered the enforcement of child abuse laws.
The issue is not resolved, however, once we conclude that pub-
lic policy is furthered by reports under the ANCRA. Defendants
allege rather curtly that the Northern District of Mlinois has con-
cluded that plaintiffs with potential $1983 claims are not allowed
to simultaneously pursue retaliatory claims. No matter how unper-
suasively presented, we evaluate the relevant doctrine.
Going back to the origins of the state law cause of action,
courts have held that *‘the Illinois Supreme Court seems willing to
recognize the tort of retaliatory discharge when to do so would
further the policy goals stated in Kelsay.’’ Busa v. Barnes, 646
F.Supp. 615, 617 n.4 (N.D. M11. 1986) (citations omitted). Plaintiff
Suggests that because her state claim is founded on an IDlinois sta-
tute it furthers different goals than the §1983 actions. But this
focus misses the raison d'etre for the retaliatory cause of action.
Kelsay and its progeny are concerned with affording relief to other-
wise remediless plaintiffs. The court in Kelsay feared that the
workmen’s compensation scheme would be undermined were
employers permitted to threaten the termination of those employees
who sought compensation: ‘*We cannot ignore the fact that when
faced with such a dilemma many employees, whose common law
nights would have been supplanted by the Act, would choose to
retain their jobs, and thus, in effect, would be left without a
remedy either common law or statutory.”’ 74 Ill.2d at 182, 384
N.E.2d at 357, 23 [ll.Dec. at 563. Busa dismissed plaintiff's state
retaliatory discharge claim because the **§1983 claim will provide
vindication of the policies behind the First Amendment and Article
1, §$4 and 5 of the Dlinois Constitution.”’ 46 F.Supp. at 618.
And Gutierrez v. City of Chicago, 605 F.Supp. 973 (N.D. Ml.
1985), the court dismissed the retaliatory discharge claim because
‘‘[bjoth Title VII and 42 U.S.C. §1983 provide causes of action for
wrongful discharge based on political activity or on racial discrimi-
nation.’” /d. at 980.
These cases are not determinative, however, for it is very possi-
ble that the state law claim might further either different policy
goals than those furthered by the §1983 claim or the same goals to
an even greater degree.” This, and not the basis for each claim, is
the controlling issue.
We hold that §1983 appears sufficient to vindicate plaintiff's
rights. It can be argued that the ANCRA’s concern is with child
abuse and the First Amendment with free speech. In the case at
bar, however, enforcement of the latter ensures successful protec-
tion of the former.’’ This court has already held that plaintiff's
22. The state law claim might, for example, permit punitive
damages where the federal claim does not. See, e.g., Midgett v.
Sackett-Chicago, Inc., 105 11.2d 143 N.E.2d 1280, 85 Ml.Dec.
475 (Ill. 1985). By raising the penalty the state law claim may
permit a unique remedy without which, according to state law,
plaintiff's recovery would be considered incomplete. See
Midgett, 105 IIl.2d at 149, 473 N.E.2d at 1284, 85 Ill.Dec. at
479 (“‘[iJf there is no possibility that an employer can be liable
in punitive damages, not only has the employee been afforded
an incomplete remedy, but there is no available sanction against
a violator of an important public policy of this state’’).
Plainuff is correct that Brudnicki v. General Electric Company,
535 F.Supp. 84 (N.D. Ill. 1982) is not controlling. The
Brudnicki court argued that the remedies established under the
federal — 42 U.S.C. §200e-3 (1976) — were exclusive. Thus
the court refused to ‘‘imply an independent [state] cause of
action in this context.’ /d. at 89. Because §1983 claims are
not statutorily prescribed to be exclusive, the Brudnicki case is
not binding. Nonetheless, the case is instructive to see how the
court looked beyoad the plaintiffs characterization of the
policies allegedly furthered by the federal and state actions.
The court instead concluded that ~‘{pjlaintiffs argument
to
Ww
reports pursuant to the ANCRA are protected speech under the
First and Fourteenth Amendments. Thus, such actions — which
are necessary to further the public policies behind the ANCRA —
are already protected as speech, and suppression thereof is enforce-
able under $1983. We therefore dismiss the plaintiff's retaliatory
discharge claim contained in count VI and need not reach the issue
as to whether mandamus would be appropriate relief.
C. Intentional Interference with Contract and Employment
Relations
Nlinois law clearly descnbes the essential elements for an
action alleging the tort of intentional interference with contractual
relauons. They are the existence of a valid and enforceable con-
tract between the plainuff and another, defendants’ awareness of
the contract. defendants’ intentional and unjustified inducement of a
breach of that contract, a svhsequent breach of the contract by the
third party caused by the defendants’ action, and damages. See e.g
Richmond v. Hahn, 134 Tll.App.3d 947, 948, 481 N.E.2d 943, 944,
90 Tl. Dec. 143, 144 (3rd Dist. 1985).
Even after viewing the complaint ‘“‘liberally with a view to
doing substanual justice between the parties,” id., this court is at a
lOSS In its attempt to locate the requisite contract between the plain-
uff and another. There obviously was no contract with regard to
the posiuons for which Cromley applied. And we find nothing in
the complaint to suggest that the Board was in breach of a contract
with respect to the Reading Department position. Plainuff's allega-
uon that the “Board of Education reappointed Cromley to said
posiuon every year thereafter through the 1986-87 school year’
advances a distinction without a difference. ... The theoretical
policy against being compelled to violaie these laws is
subsumed by the underlying policy against employment
discrimination. if plainuff were permitted to maintain an
independent tort on such dependent grounds, the remedies
provided by state and federal law would have no meaning.’ /d.
. 45 -
(cplt. 18), strongly suggests that her position as chairman was
evaluated annually. No matter how strongly Cromley felt that she
deserved the subsequent appointment, she had no contractual right
to it. Also irrelevant is that she expected reappointment, even
‘here this expectation would be considered reasonable. Count VII
alleges interference with contractual relations, not expectations, and
thus must be dismissed. If the present complaint omits relevant
facts to the existence of a contract for the position of chairman. we
invite the plaintiff to amend
Further, this and many other courts have explored what
amounts to a corporate officer exception to the tort of intentional
interference with contractual relations. See, e.g. Allen Saltzman
Associates, Inc. v. Aileen, Inc., 633 F.Supp. 1161, 1163 (N_D. Ml.
1986), Medina v. Spotn, Inc.. 591 F.Supp. 190, 196 (ND. Ml
1984). ‘Corporate officers are not outsiders intermeddling mali-
ciously in the business affairs of the corporation. They are
privileged to act on behalf of their corporations, using their busi-
hess judgment and discretion.” George A. Fuller Co. v. Chicago
College of Osteopathic Medicine, 719 F.2d 1326, 1333 (7th Cir.
1983). These same considerations of deference in the context of
agency law are applicable in the case at bar. Here the superinten-
dent of the district and the principal of Central Campus are alleged
to have interfered with a contract (see above) between the Board
and the plaintiff. But the superintendent and the principal are the
academic reflection of corporate officers and are therefore
privileged to act on behalf of the Board.
The limits to the exception are similarly derived from agency
law:** **[W)hen the action is detrimental to the corporation and
24 Plainuff uses the language of Ramsey v. Greenwald 91
fl. App.3d 855, 414 NE.2d 1266, 47 Dl.Dec. 150 (2nd Dist.
1980), to contend that the defendant was not acting on behalf of
the principal because “‘he did not have the power to hire or
fire’ the plainuff. /d. at 91 Ml. App.3d at 863, 414 NE.2d ar
1272, 47 Ol.Dec. at 156. In the very next line. however. the
court conceded that “the submission of reports regarding
Ramsey's performance may have been a task that was within
the scope of his employment."’ /d. Thws. the filing of reports
_ e
outside the scope of corporate authority, immunity ceases to exist.’
George A. Fuller, 719 F. 2d at 1333. The considerations relevant
to the inquiry are as follows:
Illinois law requires — to state a cause of action against cor-
porate officers for interfering with their corporate principal's
contract — the allegation of facts which, if true, establish
that the officers induced the breach to further their personal
goals, or to injure the other party to the contract, and acted
contrary to the best interest of the corporation.
Id.; Medina, 591 F.Supp. at 196 (emphasis in original).
Plaintiff has sufficiently alleged that Dittle and Weber acted to
injure Cromley, but she has not alleged facts which suggest that
their actions were contrary to the best interests of the Board. Nor
has she alleged that the actions benefited Dittle or Weber person-
ally. Remembering that the only conceivable claim as to the
existence of a contract would be an allegation that there was a con-
tract between Cromley and the Board pertaining to her chairman-
ship of the Reading Department, the plaintiff has failed to demon-
Strate either that merging the Reading department into the English
Department was detrimental to education or that it benefited Dittle
and Weber personally. In the absence of those allegations they
by Weber and Dittle and their making recommendations were
on behalf of the school board. Though the court in Ramsey
eventually held that the defendant was not acting with the best
interests of the principal in mind, we hold infra that the plaintiff
herein has not alleged facts sufficient to make a comparable
demonstration.
25. It is important to remember that Cromley does not allege
wrongful discharge from employment That distinguishes this
case from Kufalk v. Hart, 610 F.Supp. 1178, 1192 (N.D. Ml.
1985), wherein the court was willing to infer that the dismissal
of the plaintiff was contrary to the interests of the school. /d at
1192 (*‘From the duration of this tenure alone, this court can
infer the plaintiff was a valuable asset to his employer’). We
are unable to make the same inference with regard to the more
a
a
were legally incapable of interfering with whatever contract could
be alleged to have existed between the Board and Cromley.
D. Intentional infliction of Emotional Distress
To state a cause of action for the tort of intentional infliction of
emotional distress, plaintiff must allege facts which demonstrate
that (1) defendants’ conduct was extreme and outrageous; (2)
plainuff’s emotional distress was severe; and (3) defendants’ con-
duct was such that they knew that severe emotional distress would
be certain or substantially certain to result. See, e.g., Smith v.
Metropolitan Life Insurance Company, 550 F.Supp. 896, 901 (N.D.
fil. 1982). Defendants herein contend both that plaintiff has not
alleged facts suggesting that their conduct was extreme or outra-
geous, and also that plaintiff similarly has failed to allege that
defendants knew their conduct would create emotional distress.
Paragraphs 70 and 71 of the complaint sufficiently state the
requisite allegations as to the nature of the defendants’ conduct and
their knowledge:
70. The actions and conduct of Weber Dittle, Meints, and
the Board of Education were extreme and outrageous, were
intentionally calculated to and did inflict emotional distress
upon Cromley, and resulted in Cromley’s need to seek medi-
cal attention. 71. Weber, Dittle, Meints, and the Board of
Education knew that their actions and conduct with respect
to Cromley were extreme and outrageous and would inflict
emouonal distress upon Crormley.
Prior to discovery, this court is reluctant to resolve the
conflicting allegations as to the nature cf defendants’ conduct and
knowledge. We take the allegations contained in 70 and 71 to be
true and thus hold that the elements of the intentional infliction of
emouonal distress claims are sufficiently alleged.
general policy decisions of the school board, for example,
whether it was beneficial to consolidate two departments.
- 48 -
Defendants further contend that there must be an allegation that
a physical injury or illness was suffered. In support of this propo-
sition they cite Goldberg By and Through Goldberg v. Ruskin, 128
Nll.App.3d 1029, 471 N.E.2d 530, 84 Ill.Dec. 1 (1st Dist. 1984),
aff'd 113 Ill.2d 482, 499 N.E.2d 406, 101 Ill.Dec 818 (Il. 1986), a
case which considered the tort of negligent infliction of emotional
distress. With respect to the intentional infliction tort there is con-
siderable authority to the contrary. See e.g., McCaskill v. Barr, 92
Nl.App.3d 157, 159, 414 N.E.2d 1327, 1328, 47 M1l.Dec. 211, 212
(4th Dist. 1980) (‘‘Illinois, unlike some other jurisdictions, does
not require physical injury or disability to accompany, or result
from the psychic trauma’’). Furthermore, the plainuff has alleged
that the actions of the defendants‘* did inflict emotional distress
upon Cromley, and resulted in Cromley’s need to seek medical
attention’’ (cpl. at 70). For Rule 12(b)(6) purposes, this court
finds this allegation sufficient to constitute the requisite physical
injury. If defendants are correct that ‘‘[p]laintiff's feeble attempt to
obfuscate the true facts must fail’’ (def. mem. at 21). it will wilt in
the light of discovery as well.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is
granted with respect to counts I-III ($1983), as applied to Weber
and Dittle’s liability in their official capacities; count IV (con-
spiracy); count V (defamation); count VI (retaliatory action); and
count VII (intentional interference with contract). Defendants’
motion is denied with respect to counts I-III ($1983), as applied to
the Board of Education, Meints, and Weber and Dittle in their indi-
vidual capacities, and count VIII (intentional infliction of emotional
distress).
DATED: November 1, 1988
ENTER: /s/ James B. Moran
Judge, United States District Judge
- 49 -
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVI‘; 0N
MARCELLA ANN CROMLEY,
Plaintiff,
No. 91 C 2686 v.
BOARD OF EDUCATION OF LOCKPORT TOWNSHIP
HIGH SCHOOL DISTRICT 205, DONALD E. WEBER,
RICHARD J. DITTLE, AND DONALD MEINT >>
Defendants.
MEMORANDUM OPINION AND ORDER
Plainuff's prior attorney has accepted a partnership with
defendant’s attorneys. Plaintiff wants to disqualify defendant’s
. attommeys, and we deny the motion.
There can be no dispute about there being a substantial
relationship, that the attorney in fact obtained confidences in his
prior firm and that there is a presumption he will share those
confidences with his new partners. The Only issue is whether the
barriers erected between the attorney and his new law firm with
respect to this case are sufficient to rebut the presumption of shared
confidences. We believe that appropriate isolation will rebut the
presumption not only in governmental transfers but in private
transfers as well, and we believe the barriers to be appropniate here.
DATED: March 19, 1990
ENTER: /s/ James B. Moran
Judge, United States District Judge
- 5).
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARCELLA ANN CROMLEY,
Plaintiff,
No. 91 C 2686 v.
BOARD OF EDUCATION OF LOCKPORT TOWNSHIP
HIGH SCHOOL DISTRICT 205, DONALD E. WEBER,
RICHARD J. DITTLE, AND DONALD MEINTS,
Defendants.
MEMORANDUM OPINION AND ORDER
The basis dispute in this case is described in an earlier opinion,
Cromley v. Board of Education of Lockport Township High School
District 205, 699 F. Supp. 1283 (N.D. Ill. 1988). We there
denied, in certain respects, a motion to dismiss. Now the motion is
defendants’ motion for summary judgment, and that we grant.
The facts we recite are not much different from those set forth
in the earlier opinion. Although the parties do not dispute the
Objective facts, they do, however, have sharply differing
perceptions of what those facts mean. Moreover, the substantial
discovery since the earlier opinion has provided considerable
content to the nature of the dispute. What is involved is not a lot
in the economic sense. A teacher, who continues to be a teacher,
was not reappointed to an unpaid position as Chapter I Coordinator
or Director. She also lost her position as Chairperson of the
Reading department, a position that paid her approximately $1400
additional compensation each year. Both positions also provided
some release time from normal teaching responsibilities. The
dispute has triggered a major legal confrontation. The lawyering
has been both competent and considerable -- the earlier opinion
was 18 pages, the discovery thereafter was extensive, and the
motion papers now before the court include approximately 100
pages devoted to separating out the contested and uncontested
facts, and almost 100 pages of briefs.
Rane bene oneal
nee ka Aart 6 a
xe
We start off with the question of whether or not a trier of fact
could reasonably conclude that plaintiff's professional career was
blighted from 1987 on because she exercised her First Amendment
rights. We think the best way to answer that question is by a chro-
nological account of what happened.
Plaintiff has been a teacher in the system since 1974. From
1978 to 1987 she was Reading Department chairperson and
Chapter I Coordinator, both supervisory or quasi-administrative
positions. Her evaluations were always exemplary, at least up to
the time involved here. Defendant Donald Meints has been a
teacher in the system for over 30 years, and at least for a period of
many years was also a teacher in the reading Department. Plain-
uff, from 1978 on, was his supervisor and, as such, evaluated his
performance. The relationship between plaintiff and Meints had,
over the years, occasionally been troubled. On occasion their
differences had led to union intercession to resolve matters, and
Meints had several times accused plaintiff of trying to harm him
professionally.
In 1986 and 1987 defendant Donald E. Weber was superinten-
dent at District 205, defendant Richard J. Dittle was principal of
the high school, defendant Chris Ward was an assistant superinten-
dent at the high school, and Ronald Smith was the other assistant
superintendent. The period was marked by turmoil and conflict
between the administration and the Board, and within the Board.
There was also, in plaintiff's view, some friction in the last half of
1986 between herself and Dittle, and herself and Weber, in that she
believed Dittle had harassed her about a couple of matters and
Weber had threatened not to renew her Chapter i Coordinator posi-
tion because of differences between them respecting the relocation
of the Chapter I office.
On December 10, 1986, plaintiff advised Dittle that two female
students had reported that Meints had kissed them and another
female student, that on several occasions he had rubbed their necks
and shoulders in a way that had offended them, and that he had on
several Occasions made sexually offensive comments. There was,
apparently, also a reference to his hand being on one student’s but-
tocks. (Plaintiff reported another incident also, but that report was
much later, well after the critical events here.) Dittle had a female
<a.
social worker interview the students and he also interviewed them
himself. He then discussed the matter with Meints and with other
administrators. Weber learned of the matter from the assistant
superintendents and he advised the Board about it. According to
Dittle, Meints did not recall ever having his hand on a student’s
buttocks; according to Meints he denied that part of it
Otherwise, the reports were largely consistent: Meints had
hugged and kissed a female student on the cheek in class while
sharing a happy circumstance. A decision was made that Dittle
and Smith should talk to Meints about the inappropriateness of his
behavior, which they did on December 12, 1986. A written sum-
mary of that meeting was placed in a District file but not not in
Meints’ personnel file. The latter was reported to the Board, but
not to the Department of Children and Family Services (DCFS), as
it was not believed to be warranted. Dittle told plainuff what had
been done. That, for the moment, ended it.
On February 12, 1987, plaintiff reported the matter to DCFS.
She did not tell the administration she had done so, but a trier of
fact could reasonably conclude that plaintiff's supervisors were
convinced that the report came from her. A DCFS investigator
visited the school one or two days later and talked to Dittle, Meints
and the union president, Fender. The investigator returned on
February 17, 1987, to talk to plaintiff, but she was in class. He
left his card, and plaintiff was given the card the following day and
told the investigator had requested her to call. The investigator
had, upon leaving, indicated a 95 per cent chance that the charges
were unfounded. There is no indication plaintiff called the investi-
gator. The February 17, 1987 visit, and Weber’s report to the
Board of the visit, apparently ended the matter again.
On March 4, 1987, plainuff submitted her annual evaluation of
Meints. It was a very negative evaluation. Plaintiff referred expli-
citly to “‘sexual comments’’ by Meints and ‘‘reports of certain
liberties you have taken with students which they reported as sexu-
ally offensive.” She accused him of punishing those students
because they reported. Plaintiff also took sharp issue with Meints’
grading standards and requested that he submit an explanation of
why each student who received a *‘D’’ or “‘F’’ for the first semes-
ter had received such a low grade, and that he keep her updated, on
- $3.
a weekly basis, on students in that category.
Dittle also evaluated Meints, his evaluation on March 24, 1987,
being far more favorable. It did caution Meints ‘‘on employing
any type of feedback that might involve a method or manner which
might send mixed signals to students.’’ Meints was also heard
from. He submitted a long and intemperate rebuttal at a meeting
with Dittle, the union president, a union grievance committee
member and the plainiff on March 25, 1987. Interestingly enough,
he was exercised about plaintiff's criticism of his use of the film
“My Bodyguard’’ as a teaching device, claiming that she had said
it was inappropriate for reasons of ‘‘vulgarity, violence, gambling,
and sex.’’ Plaintiff had mentioned its use in her evaluation, but
without criticism, although she later indicated that Meints had
endorsed materials ‘‘with questionable content and language ....”’
Meints was the only teacher who ever submitted rebuttals.
The merger of the Reading Department into the English Depart-
ment apparently had been discussed from time to time since 1982,
when there was a North Central recommendation to that effect.
Weber and Ward testified that the matter was actively pursued in
the fall of 1986, the primary reason being that students opting for
reading courses could go through four years of high school without
ever taking an English course. The union president, Ferdci, and
plainuff, were both aware that merger was being considered.
Plaintiff has testified that she was told by Dittle on March 27,
1987, that the Reading department would continue unchanged for
the next school year and then was told, several hours later, after
Dittle met with Weber, of the intended merger. There appears to
be no dispute, however, that the intended merger was announced
that day and that it was Weber’s decision as superintendent, not a
matter considered or decided by the Board.
That merger eliminated the need for a reading department
chairperson but not the need for a Chapter I Coordinator. The
yearly posting of that position occurred April 7, 1987. Both plain-
uff and Meints applied. Plaintiff was interviewed on May 1, 1987.
During that interview, some considerable portion of her time was
devoted by plaintiff to explaining why Meints should not be
selected. Neither was selected.
=
There was one final chapter in the Cromley-Meints controversy.
On July 15, 1987, plaintiff submitted an 11- page response to
Meints’ March rebuttal and requested that it be placed in Meints’
personnel file. While less intemperate than the rebuttal, it was
harshly critical. It referred again, and in detail, to the reports of
female students, said he had lied about his credentials, and
described his conduct as reflecting *‘blatant insubordination’’ and
‘extreme hostility.”’ It was the only time an evaluator had ever
submitted a reply. Fender, Weber and Dittle agreed that inclusion
in Meints’ personnel file would probably violate the collective bar-
gaining contract and denied that request. It was placed in another
District file.
That same date the position of associate English Department
chairperson was posted. Plaintiff applied. She was told on August
12, 1987, that she had not been selected. In 1989 she applied for
the joint positions of English Department chairperson and Chapter I
Coordinator. She was not selected.
Potential Liability of Donald Meints
Cromley concedes that none of her federal claims applies to
Meints. Because pendent party jurisdiction was not permitted
when this case was filed, all state law claims against Meints must
be dismissed. Finley v. United States, 490 U.S. 545 (1989);
Kreuzfeld A.G. v Carnehammer, 138 F.R.D. 594, 608 (S.D. Fla.
199i) (explaining that the Judicial Improvements Act of 1990,
which amended 28 U.S.C. §1367 to permit pendent party jurisdic-
tion, May not be applied retroactively).
Potential Liability of the Board of Education
Cromley also, concedes that she has a claim against the Board
of Education only if she has an official capacity claim against
Weber for .merging the Reading department and the English
Department, and thereby eliminating her position as English
Department chairperson. There is no evidence that the Board ever
considered or even discussed Cromley’s speech about Meints. It
can be liable only because it is the juridical entity answerable for a
Monell claim based upon the final policy decision of Weber to
merge the two departments. We therefore turn to the potential lia-
bility of Weber and of the other two individual defendants, Dittle
and Ward.
Potential Liability of Weber, Dittle and Ward
The legal framework for analyzing these issues is well esta-
blished but not conductive to simple application. A public
employee does not forfeit his or her First Amendment rights, but
their exercise is subject to some limitations. We must determine
whether the speech pertains to matters of public concern. If it
does, we must determine whether or not the employee's right as a
citizen to speak out on matters of public concern outweighs the
government’s interest in promoting effective and efficiemt public
service. That means we must consider any needs to maimtain dis-
cipline or harmony among co-workers, to curtail conduct that
impedes employees’ proper and competent performance: and to
foster close and personal relationships where appropriate. The
speech is protected speech if he interest in speaking out on matters
of public concern outweighs the governmental interests. That
determination, with its consequent balancing of interests, is a legal
issue. If the speech is protected speech, it must then be determined
whether or not that speech was a substantial and motivating cause
for any personnel decision adversely affecting the employee, a fact
question. If it was such a cause, it must be determined whether or
not that adverse decision would have been made in any event, also
a fact question. Oshe v. Hughes, 816 F.2d 1144 (7th Cir. 1987),
judgment vacated on other grounds, 485 U.S. 902 (1988); Green-
berg v. Kmetko, 840 F.2d 467 (7th Cir. 1988); Knapp v. Whitaker,
757 F.2d 827 (7th Cir. 1985), cert. denied, 474 U.S. 803 (1985).
Plaintiff contends, and defendants do not dispute, that her call
to DCFS on February 12, 1987 related to a matter of public con-
cern and that it was protected speech. That agreement does not
extend to plaintiffs March 4, 1987 evaluation on Meints. Private
communications, as we stated in the earlier opinion, are also
afforded constitutional protection -- not only public speech is pro-
tected. That the statements were made in an internal evaluation
does not necessarily mean that they have ceased to relate to a
matter of public concern.
We believe, however, that the evaluation here was not protected
speech. the administration was informed by the initial report.
DCFS was informed by the subsequent call. Neither the
~ w
administration nor DCFS thought, after investigation, that action
was required beyond that then taken. That action was an oral
reprimand, and Cromley understood that was to be the end of the
matter. Plaintiff's supervisors surely could consider, in reviewing
her supervisory capabilities, the repetition, in a harsh evaluation to
the same audience, of a claim that the administration had con-
sidered closed, especially where that matter concerned a teacher the
plaintiff would continue to evaluate and supervise. The plaintiffs’s
willingness to accept considered decisions, harmony with co-
workers, and the impact upon continuing relationships, are all
implicated in plaintiff's persistence in raising the issue again.
This case turns, then, on whethez or not there is sufficient evi-
dence for a trier of fact reasonably to conclude that plaintiff's call
to DCFS was a substantial and motivating cause of the merger and
plaintiff's subsequent failures to attain leadership positions, and
that there would have been no merger and no passing over of plain-
tiff but for that call. And we do not believe there is sufficient evi-
dence to support either of those conclusions.
This case is not about a gadfly whose speaking-out has little or
no impact upon her own performance. No one disputes that plain-
tiff is an experienced, dedicated, and excellent classroom teacher.
But no action was taken against her as a teacher. The positions she
was denied are supervisory or quasi-administrative leadership posi-
tions. Defendants contend that the merger decision was indepen-
dent of the Cromley-Meints confrontation, that after the merger it
was intended that the Chapter I Coordinator and English Depart-
ment Chairperson positions be held by the same person, and that
the persons ultimately selected for those positions were qualified.
That all may be so, but we cannot conclude that with certainly
upon the present record. It may well be that the confrontation may
have provided the final impetus for the decision to merge, and
defendants concede, as they must, that plaintiff's role in the con-
frontation was a substantial factor in the subsequent denial of
leadership positions.
But that does not necessarily lead to liability. Had the prior
Organizational structure remained unchanged, plaintiff would have
continued to supervise and evaluate Meints. As Ward said at one
point, someone had to leave. The administration had concluded
. 2
that major discipline for Meints was not warranted. Certainly it
did not believe it had grounds, legally or equitably, to dismiss from
his position a teacher with over 30 years service and covered by a
collective bargaining contract. Cromley recognizes that the conflict
poisoned her relationship with other teachers, that the union
representatives were distressed by her role in the matter, and that
Weber complained about the teaching staff's preoccupation with
the coniict. By the time the merger decision was announced, the
coutinuing dispute had led to the Meints rebuttal and the union
grievance meeting. Something had to give, whether or not
plaintiff's call to DCFS was pari of the mix of circumstances. And
those circumstances have not changed. Both plaintiff and Meints
remain in the same department. If she were in a leadership posi-
tion in that department, she undoubtedly would have to supervise
and evaluate Meints. We do not believe that a trier of fact could
reasonably conclude that but for the single call to DCFS, the
merger decision would not have been made or that plaintiff would
have been selected ad English Department Chairperson or associate
chairperson.
The Chapter I Coordinator position is a somewhat different
matter. It did not require any supervision or evaluation of Meints.
Defendants say that it was intended to combine that position with
the chairperson’s position, but it was post’' separately and plaintiff
Was granted a lengthy interview. By thu, however, there was
more water over the dam. As we have noted, plaintiffs relation-
ship with both Dittle and Weber had deteriorated over the previous
year; it had been a tumultuous year for the District; both plaintiff
and Meints applied; Meints had submitted his intemperate rebuttal;
and plaintiff used the interview as an opportunity to renew her cri-
ticisms of Meints. The conclusion was then reached, according to
defendants, that neither Meints nor plaintiff should be in leadership
positions. Plaintiff cannot directly refute that conclusion. But can
we reasonably infer that the DCFS call was the final, or a final
straw that led to that conclusion? We think not. Plaintiff places a
greater burden upon that one event than it can sustain.
We grant summary judgment to Weber, Dittle and Ward on
plainuff's federal claims. Accordingly, we grant summary judg-
ment to the Board. We dismiss plaintiff's claims against Meints.
And, because plaintiff's state claims for tortious interference with
~ 2
prospective economic advantage requires intentional infliction of
emouonal distress, a determination that the individual administra-
tive defendants act wrongfully, a determination the record cannot
support, we grant summary judgment on those claims as well,
without ever getting to the issue of qualified privilege.
DATED: January 5, 1933
ENTER: /s/ James B. Moran
Judge, United States District Judge
- 59 -
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARCELLA ANN CROMLEY,
Plaintiff,
No. 91 C 2686 v.
BOARD OF EDUCATION OF LOCKPORT TOWNSHIP
HIGH SCHOOL DISTRICT 205, DONALD E. WEBER,
RICHARD J. DITTLE, AND DONALD MEINTS,
Defendants.
AFFIDAVIT OF DAVID P. KULA
I, DAVID P. KULA, being first duly sworn on oath, state that I
have personal knowledge of the following facts, except where
indicated ‘‘upon information and belief,’’ and that if called as a
witness in this case could and would competently testify to those
facts under my personal knowledge ana observation as follows:
1. I am the attorney representing the corporate and individual
Defendants, COURT OF EDUCATION OF LOCKPORT
TOWNSHIP HIGH SCHOOL DISTRICT 205, DONALD E.
WEBER, ROCHARD J. DITTLE, AND DONALD MEINTS.
2. Since the filing of the subject matter on November 12, 1987,
I have been the only attorney in the firm of Scariano, Kula,
Elich, and Himes, P.C. to perform any substantive duties
with respect to this file with one exception. An associate in
my law form, Deborah W. Owens, performed some
substantive work on this matter in the researching and
drafting of a motion to dismiss and supporting legal
memorandum in early to mid 1988. Ms. Owens is no longer
with the law form of Scariano, Kula, Ellch, and Himes,
having left the firm in March of 1989. No other associate or
partner currently with the firm has performed any substantive
matter relating to the instant litigation.
3. During the calendar year of 1989, from approximately early
February of 1989 up to and including the middle of
September 1989, myself, as counsel for all Defendants, and
the law firm of Schwartz and Freeman undertook discovery.
Documents were produced, interrogatories were propounded
and depositions were conducted by counsel for the Plaintiff
at the time, Lawrence Jay Weiner, with the last deposition of
the Defendants occurring on September 19, 1989. After Sep-
tember 19, 1989, there has been no substantive matter han-
died by your affiant relating to this lawsuit up until instant
date, save attendance at several siatus hearings before this
court, and the instant response to the motion to disqualify.
In early to mid October of 1989 my partner, Anthony G.
Scanano, informed me that he was discussing with Weiner
the possibility of Weiner joining the law firm of Scariano,
Kula, Ellch and Himes.
Immediately upon being informed to that effect by Scariano,
I called Weiner and, in a conversation with Weiner, he and |
both agreed that absolutely nothing of a substantive nature
regarding the instant lawsuit would occur until such time as
both clients were made aware of the discussions, and further,
if at all, until such time as any decisions would be made
regarding Weiner’s joining the Scariano, Kula, Elich and
Himes law firm. Upon information and belief, Weiner then
told Cromley in mid October of 1989 that there was a possi-
bility that he would join the Scariano, Kula, Ellch and Himes
firm.
Immediately after talking with Weiner in early October, I
informed my clients as to the possibility of Weiner joining
my firm and further informed my clients that absolutely noth-
ing would be occurring on this lawsuit until] such time as
final decisions had been made and even then, only if the
results of those decisions allowed continued representation by
one party of the other to continue. As early as this first
conversation in early October 1989, I was informed by my
client, an administrator of the Board of Education, that they
would be concerned about the possibility of our having to
withdraw as attorneys in the firm and further informed us
that they wouid not like that to happen.
61.
On November 20, 1989, at a status call before this Court,
Weiner’s oral motion to withdraw as counsel for Cromley
was granted. At that status call I orally informed the Court
of my client's desire that we continue as attorneys, and
further informed the Court, in response to questions from the
Court, that we would further research ‘‘China Wall’’ require-
ments and that those would be implemented; but I further
acknowledged to the Court that, notwithstanding my clients’
desire that we continue in the case, it would be the decision
of the Court as to our further representation in this matter.
In regard to the specific assertions in the Eagle Affidavit, at
paragraph 13 of her affidavit that
‘‘However, Weiner told me that the Scariano firm
would not withdraw because the Defendant Board of
Education had not previously been a client of the
Scariano firm and had specifically chosen the Scari-
ano firm to represent it in this litigation, and that the
Scariano firm hoped to represent the Board of Educa-
tion for other purposes.’
the undersigned cannot personally testify as to what Weiner
told Eagle. However, the reason for my failure and refusal to
withdraw as attorney for the Defendants in this case is
because of their specific direction to me to not withdraw.
Whether or not my firm continues to represent Lockport
High School District 205 in other, unrelated matters has no
bearing on our decision not to withdraw on this case. Purely
and simply, it is my client's desire that we continue to
represent all Defendants, and our belief that this can be done
under the existing state of the law and Canons of Ethics
regarding these issues, that allows us to continue in this
matter and to defendant against the instant Motuon to
Disqualify.
As to Eagle’s contentions in her Affidavit at paragraphs 14
and 15 that at no ume did Kula. Weiner or any member of
the Scariano firm advise her that any precautions were being
taken to screen Weiner, I[ refer to my earlier conversation
before this Court and Weiner personally on November 29.
1989 when I assured the Court that screening efforts would
10.
11.
a
be researched and implemented. Furthermore, in response to
Eagle’s ‘‘personally relaying’’ concerns to me telling me that
she would file a motion to disqualify if we did not withdraw,
I informed Eagler, in general terms, without giving specifics,
that prevailing authority acknowledged screening procedures
and China Wall mechanisms and that these procedures and
mechanisms would be easy to implement given the way that
our office is set up. She simply did not agree. Furthermore,
upon information and belief, my partner, Anthony G. Scari-
ano, had a conversation with a partner in the Schwartz and
Freeman firm, sometime in early January. In this conversa-
tion, between Anthony G. Scariano, and Mr. Kenneth Den-
berg, which conversation centered on Mr. Denberg’s efforts
to convince Scariano that this firm should withdraw, Scariano
informed Denberg, again without specifics, that screen meas-
ures relating to Weiner’s presence in our firm had been
undertaken.
Since December 15, 1989 when Weiner joined the firm, he
has been officed almost exclusively at our firm’s Chicago
office at 200 North LaSalle Street. I am officed almost
exclusively in our Chicago Heights office at 1450 Aberdeen.
Since December 15, 1989, I personally have been to our Chi-
cago Office on only three or four occasions. Since December
15, 1989, Weiner has been to the Chicago Heights office on
one three occasions, and on each occasion for a specific pur-
pose. On two occasions Weiner was in Chicago Heights to
attend a partners’ meeting, and on another occasion he was in
Chicago Heights to meet with a client. In all three of these
occasions he was not in the office for the full day.
All of the files and material pertaining to the Cromley matter
are not maintained in the common client files of our office,
but are rather maintained in the closet in my office in Chi-
cago Heights where I keep files that I, and I alone, work on.
Effectively immediately on the iSth of December 1989
screening procedures were implemented pursuant to the
attached memorandum (Exhibit A), which was read and
signed by all employees of the firm, whether attorney, secre-
tary or support staff (see Exhibit B attached hereto of the list
of all employees who have received and executed this
- <a.
screening memo). All of the admonitions of the screening
memo have been adhered to by all attorneys and all support
staff employed by this firm. Other than two brief conversa-
tions between myself and Weiner of a completely nonsub-
stantive nature, i.e., whether or not new counsel was obtained
for the Plaintiff to substitute for Weiner, and rebarding the
fact of the filing of the instant motion to disqualify, there has
been no discussions whatsoever by any attorney or support
staff employed by this firm and Weiner concerning any issue
regarding this lawsuit.
Further affiavit sayeth not.
/s/ David P. Kula
SUBSCRIBED and SWORN to before me
this 21st day of February, 1990
/s/Melissa B. Minvau
Notary Public
EXHIBIT A
MEMORANDUM
TO: ALL ATTORNEYS and SECRETARIES
FROM: DPK
DATE: 12-15-89
RE: Cromley v. Board of Education, School District 205
Will County
As you know, effective Lawre Weiner becomes affiliated with our
law firm. As may of you also know, Lawre has previously
represented the plaintiff in the subject litigation against a client
school district of ours, Lockport Township School District 205 in
Will County, Dlinois. On November 29, 1989, Judge Moran
granted Lawre’s motion to withdraw as counsel for the plainuff.
Our client in this matter, the Board of Education of District
205, desires that our firm continue to represent it in regard to this
matter. For this circumstances to even to be appropriate, let alone
permissible, it is absolutely necessary and critical that certain fun-
damental principles dictated by the code of conduct and standards
of ethics in practice as stated specifically by the Dlinois Code of
Professional Responsibility, and/or by the federal and state cases
interpreting both the Code of Responsibility, and federal law
regarding disqualification of counsel, be adhered to by each and
every attorney in this firm, both partner and associate, as well as by
the support staff of this firm.
Therefore, you are each expected to adhere to the following
procedures, without exception, and to sign a copy of this memoran-
dum as evidence of receiving and reading this memorandum and
return the signed copy to me as evidence of same.
1. Inasmuch as Lawre will be officed in our Chicago office at
200 North LaSalle Street, any and all documents, records,
motions, pleadings, correspondence, mail, from any source
whatsoever which might be delivered to, served upon, faxed,
or in any way communicated to the Chicago office at 200
North LaSalle Street must be immediately sealed and
delivered to the Chicago Heights office to my attention upon
a determination that said material is related in any way to the
Cromley matter.
2. Furthermore, any and all files, pleadings, memorandum, etc.,
pertaining to the subject matter will be maintained
exclusively in the Chicago Heights office, in my office, in my
closet filing cabinet. Absolutely no one may have access to
any Office file relating to the Cromley matter without per-
sonal clearance and supervision from me.
3. Inasmuch as all of the work done on this file has been han-
died out of the Chicago heights office by me, there should be
absolutely no reason for any detail whatsoever regarding this
case to be discussed by support personnel or attorneys in the
Chicago Office and all attorneys in the Chicago are admon-
ished to that effect. Under no circumstances whatsoever is
Lawre to be talked to, consulted concerning, or contacted in
any way by any attorney or support personnel in this firm
De ean 2
- 65 -
regarding any issue or topic relating to the captioned matter.
Accordingly Lawre is hereby admonished that he not discuss
any detail whatsoever relating to this suit with any employ-
ees of this firm and that he not seek to have or obtain, access
to any document, record or file whatsoever maintained by
this firm which related to the captioned matter.
Should any attorney or support personnel participate in, facili-
tate, or seek any communication whatsoever between Lawre and
any member, associate, or support personnel of this firm, or should
Lawre himself seek to do same, such a circumstances could lead to
consideration of discipline by the executive committee. Should
anyone have any question, doubts or confusion at all concerning
the directives contained in this memo, please contact me immedi-
ately.
/s/David P. Kula
I hereby acknowledge having received and read this memo con-
cerning Cromley v. Board of Education of Lockport Township Dis-
trict 205. 1 also hereby acknowledge that I will maintain the origi-
nal of this document for my own files and records.
/s/David P. Kula
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.