Adams v. Bd. of Educ. Harvey Sch. Dist. 152, Gloria Johnson in Her Individual Capacity

• Court: U.S. District Court — Northern District of Illinois
• Decision Date: 06 November 2018
• Docket Number: Case No.: 15 C 8144
• Citation: Adams v. Bd. of Educ. Harvey Sch. Dist. 152, Case No.: 15 C 8144 (N.D. Ill. Nov 06, 2018)
• Parties: DR. DENEAN ADAMS Plaintiff, v. BOARD OF EDUCATION HARVEY SCHOOL DISTRICT 152, GLORIA JOHNSON in her individual capacity, BETTY JOHNSON, in her individual Capacity, DR. KISHA MCCASKILL, in her individual capacity, JANET ROGERS, in her individual capacity, TYRONE ROGERS, in his individual capacity, LINDA HAWKINS, in her individual capacity, FELICIA JOHNSON, in her individual capacity, Defendants.

DR. DENEAN ADAMS Plaintiff, v. BOARD OF EDUCATION HARVEY SCHOOL DISTRICT 152,GLORIA JOHNSON in her individual capacity,BETTY JOHNSON, in her individual Capacity, DR. KISHA MCCASKILL,in her individual capacity, JANET ROGERS, in her individual capacity,TYRONE ROGERS, in his individual capacity,LINDA HAWKINS, in her individual capacity,FELICIA JOHNSON, in her individual capacity, Defendants.

Case No.: 15 C 8144

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

November 6, 2018

Judge Coleman

JURY TRIAL DEMANDED

DEFENDANTS' MOTION AND BRIEF IN SUPPORT JUDGMENT AS A MATTER OF LAW ON COUNT I - RETALIATION

NOW COME the Defendants BOARD OF EDUCATION HARVEY SCHOOL DISTRICT 152, GLORIA JOHNSON, BETTY JOHNSON, DR. KISHA MCCASKILL, JANET ROGERS, TYRONE ROGERS, LINDA HAWKINS and FELICIA JOHNSON, by and through one of their attorneys, Christopher L. Petrarca of HAUSER, IZZO, PETRARCA, GLEASON & STILLMAN LLC and for their Motion and Brief in Support of Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(a) state as follows:

Background

This case involves an employment dispute where the former superintendent of School District 152, Dr. Denean Adams ("Plaintiff"), alleges that an offer to extend her employment agreement beyond its original term was rescinded based upon her exercise of protected First Amendment activity.

The evidence elicited at trial shows that, Plaintiff is the former superintendent of Harvey School District 152. The various individual defendants were, at all times relevant to this matter, members of the Board of Education of Harvey School District 152. The Board of Education of Harvey School District 152 (the "Board") is the entity charged with setting policy for District 152.

Plaintiff signed a performance-based, multi-year employment contract that ran from July 1, 2013, until June 30, 2016 ("the Contract"). Pursuant to Illinois law and the contract at issue, a multi-year employment contract for a superintendent can only be extended if the Board of Education determines that the goals and indicators of student performance have been. See 105 ILCS 5/10-23.8; Superintendent Contract at ¶3. While the Contract was in effect and on February 23, 2015, the Board voted to offer an extension of the Contract for one year which would have been the 2016-2017 school year. The extension was not reduced to writing or signed by the parties. The Contract plainly required that "no subsequent alteration, amendments, changes or addition to this contract shall be binding upon the parties unless reduced in writing and duly authorized and signed by each of the parties." (Superintendent Contract ¶7). In addition, Plaintiff's counsel made a counter-offer to the extension offer by requesting, among other things, a higher salary to be paid for the year of the extension.

Upon Plaintiff's request, the Board approved a request for proposal to hire a firm to perform a forensic audit of the District's finances on July 9, 2015. According to Plaintiff, Mr. TyroneRogers, a Board member, allegedly called her that evening and told her that she was "itching for an ass-kicking" due to the scope of the proposed audit. Plaintiff originally spoke to a single board member about Mr. Roger's threat and later filed a police report due to that alleged threat. She emphasized during her testimony that she was scared and this was the reason that she filed the underlying police report. It is the contention of Plaintiff that the filing of her police report is the reason that the contract extension was rescinded and that this decision was in violation of her First Amendment rights.

LEGAL STANDARD

"If, reviewing that evidence in the proper light, the nonmoving party did not introduce enough to support her claim, then judgment as a matter of law is correct." Massey v. Blue Cross-Blue Shield of Illinois, 226 F.3d 922, 924 (7th Cir. 2000) (affirming trial court's grant of judgment as a matter of law under Fed R. Civ. Pro. 50(a)). "The standard for granting judgment as a matter of law 'mirrors' the standard for granting summary judgment." Pandya v. Edward Hosp., 1 F. App'x 543, 545 (7th Cir. 2001) (quoting Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2109 (2000)). Under Rule 50(a):

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.

Fed. R. Civ. P. 50(a).

ARGUMENT

I. Plaintiff has not presented sufficient evidence to establish First Amendment retaliation claim as a matter of law.

To establish a claim for retaliation in violation of the First Amendment, a public employee first must prove that her speech is constitutionally protected. Swetlik v. Crawford, 738 F.3d 818, 828 (7^th Cir. 2013). In order for a public employee's speech to be protected, the employee must establish that she spoke as a citizen on a matter of public concern. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The determination of whether speech is constitutionally protected is a question of law. Houskins v. Sheahan, 549 F.3d 480, 489 (7^th Cir. 2008). If the Plaintiff can demonstrate constitutionally protected speech, the court must then assess whether the plaintiff has demonstrated that the allegedly retaliatory activity was motivated by the constitutionally-protected speech. Phelan v. Cook County, 463 F.3d 773, 790 (7^th Cir. 2006). If the Plaintiff can show that she engaged in constitutionally protected speech and that a retaliatory activity was motivated by the speech, then the Court must assess whether the defendant can demonstrate that it would have taken the same action irrespective of the plaintiff's speech. Id.

a. Plaintiff's Police Report About Mr. Rogers' Conduct was Not a Matter of Public Concern

Whether an employee's speech addresses a matter of public concern must be determined by the content, form and context of a given statement. Connick v. Myers, 461 U.S. 138, 147-148 (1983). The Connick test requires the Court to look at the overall objective or point of the speech as ascertained by those three factors. Kristofek v. Village of Orland Hills, 712 F. 3d 979, 985 (7th Cir. 2013). Of the three factors, content is the most important, but the subject matter of the speech is not determinative. Bivens v. Trent, 591 F.3d 555, 560-561 (7^th Cir. 2010).

When analyzing the content of the speech, the broad subject matter is not determinative, and the Court must focus on the particular content of the speech. Kubiak v. City of Chicago, 810F.3d 476, 483 (7^th Cir. 2016) citing Bivens, 591 F.3d at 560-561. In addition, while the fact that an employee's speech may touch on an issue of public import does not automatically render her remarks on the subject protected. Bivens, 591 F.3d at 560-561 citing Cliff v. Bd. of Sch. Comm'rs of City of Indianapolis, 42 F.3d 403, 410 (7^th Cir. 1994). Rather, the motive of the speaker is a relevant, though not dispositive, factor because speech will not be protected if the only point of the speech was to further some purely private interest. Kokkins v. Ivkovich, 185 F.3d 840, 844 (7^th Cir. 1999). If the speech concerns a subject of public interest but the expression addresses only the personal effect upon the employee, then as a matter of law the speech is not of public concern. Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7^th Cir. 1994).

The testimony set forth by Plaintiff in this case is that she was retaliated against by the Board because she filed a police report regarding the conduct of Mr. Rogers. Plaintiff's testimony, however, made it very clear that she made the complaint due to her fear and to protect her individually if Mr. Rogers did anything in the future.

The Seventh Circuit Court of Appeals has repeatedly held that the reporting of threats of physical violence is not speech protected by the First Amendment as a matter of law. In Houskins v. Sheahan, 549 F.3d 480 (7^th Cir. 2008), an employee of the Cook County Sheriff's Office was struck in the face by a correctional officer during an argument between the two in workplace parking lot. Id. at 483-484. She reported the incident to the Internal Affairs Division and filed a police report seeking to have her co-worker arrested. Id. at 484. The plaintiff was eventually disciplined for her role in the argument through a suspension without pay. Id. at 485. Thereafter, she filed a First Amendment retaliation claim alleging that she was disciplined in retaliation for her protected speech in reporting the incident. Id. The Seventh Circuit Court of Appeals reversed a jury award in favor of the plaintiff and determined that her speech was not protected by the FirstAmendment. Addressing her filing of the police report, the Seventh Circuit found that the speech at issue served a personal or private interest and was not protected. Id. at 491-492. Specifically the Court found that, "the police report was nothing more than [plaintiff's] personal grievance against [her co-worker] in order to have him arrested for striking her." Id.

A similar issue was decided in Kubiak v. City of Chicago, 810 F.3d 476 (7^th Cir. 2016). In Kubiak, a Chicago Police officer filed a complaint about being verbally assaulted and threatened by a co-worker. Id. at 479. Subsequent to filing this complaint, the plaintiff was removed from her assignment within the department and filed a First Amendment retaliation claim against the City...