IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Luis Aguilera,

 Plaintiff,

 v.

Chicago Public Schools of the Board of 

Education of the City of Chicago,

 Defendant.

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No. 11 C 9241

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Luis Aguilera filed a complaint against the Board of Education of the City of Chicago 

(“the Board”), alleging that his termination was in retaliation for speech protected by the First 

Amendment and violated the Due Process Clause of the Fourteenth Amendment. Aguilera 

worked as a high school Spanish teacher at the Bronzeville Scholastic High School operated by 

the Board. The Board moved for summary judgment and to strike Aguilera’s response to its 

motion as untimely filed and violated Local Rule 56.1. 

The Court denies the Board’s motion to strike Aguilera’s response but nonetheless grants 

its motion for summary judgment.

FACTS

The facts in this section are undisputed unless otherwise noted.

On August 2, 2007, the Board hired Aguilera as a Probationary Appointed Teacher at 

Bronzeville. (Def. 56.1 St. ¶ 12; Pl. 56.1 Resp. ¶ 12). This position was not tenured. (Def. 56.1 ¶ 

1; Pl. 56.1 Resp. ¶ 1). The Board’s Employee Discipline and Due Process Policy governed the 
terms of Aguilera’s employment. (Def. 56.1 St. ¶ 7; Pl. 56.1 Resp. ¶ 7). That Policy was 

explicitly not a contract. (Dkt. No. 49 Ex. D at 5). 

In April 2000, Aguilera published a book entitled Gabriel’s Fire. (Def. 56.1 ¶ 39; Pl. 56.1 

Resp. ¶ 39). The book is autobiographical. In part, it tells the story of a romantic affair between 

Aguilera and a teacher at his high school. (Def. 56.1 St. ¶ 40; Pl. 56.1 Resp. ¶ 40). At the time of 

the affair, Aguilera was thirteen and the teacher was twenty-six years old. (Id.). Aguilera was not 

an employee of the Board at the time he wrote Gabriel’s Fire. Aguilera informed the Board 

about the book during the application process with the Board. He referenced the book on his 

resume when he applied to Bronzeville and discussed the book with Bronzeville’s principal 

during his job interview. (Pl. 56.1 St. ¶¶ 27-28; Def. 56.1 Resp.¶¶ 27-28). The book found its 

way into Bronzeville’s library, though the parties dispute whether Aguilera had a role in placing 

the book there. (Pl. 56.1 ¶ 29; Def. 56.1 Resp. ¶ 29).

On January 20, 2009, Bronzeville received a complaint from the mother of one of 

Aguilera’s female students. (Def. 56.1 ¶ 12; Pl. 56.1 Resp ¶ 12). The mother was concerned that 

Aguilera had, among other things, engaged in inappropriate conversation with her daughter, 

invited the daughter to lunch, and given gifts to the daughter. (Def. 56.1 ¶ 12; Pl. 56.1 Resp. 

¶ 12). The Board initiated an investigation into the complaint. The Board assigned Investigator 

Louis Mahaffey to the case on January 26, 2009. (Pl. 56.1 ¶ 1; Def. 56.1 Resp. ¶ 1). Mahaffey 

spoke with the student in question. (Pl. 56.1 St. ¶ 5; Def. 56.1 Resp. ¶ 5). An investigator also 

spoke with Aguilera. (Pl. 56.1 ¶ 76; Def. 56.1 ¶ 18). At the end of the investigation, Mahaffey 

determined that Aguilera had invited the student in question to lunch at least eight times, walked 

the student to the bus, gave the student gifts, sent the student text messages, including one that 

read “Buenas noches, Princesa.” (Pl. 56.1 St. ¶¶ 13-17; Def. 56.1 Resp. ¶¶ 13-17; see also Def. 

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56.1 ¶ 19). Mahaffey also found that Aguilera encouraged the student to read his book, Gabriel’s 

Fire. (Pl. 56.1 St. ¶ 18; Def. 56.1 Resp. ¶ 18). Aguilera thought the concerns about his behavior 

were “ridiculous, absurd on so many levels.” (Def. 56.1 ¶ 22; Pl. 56.1 Resp. ¶ 22). In what 

Aguilera claims was a joke about her parent’s and the Board’s unwarranted concern, he 

commented to the student “What are they thinking that I’m going to ask you to marry me or 

something?” (Def. 56.1 ¶ 23; Pl. 56.1 Resp. ¶ 23). Mahaffey included these findings in an 

investigation memorandum that he prepared. Aguilera does not dispute that he spoke with the 

student about the book (Pl. 56.1 ¶ 33), joked about marriage (Id. ¶ 39), walked the student to the 

bus stop (Id. ¶ 42), offered to let the student sit in his car (Id. ¶ 60) gave gifts to students (Id.

¶ 53), and exchanged text messages with the student (Id. at 57). Aguilera denies that any of these 

actions was improper.

Following the investigation, the Board held a hearing to consider whether it would 

terminate Aguilera’s employment on October 2, 2009. (Def. 56.1 ¶ 28; Pl. 56.1 ¶ 90). Prior to the 

hearing, the Board sent Aguilera a letter describing the nature of the allegations that the student’s 

mother had made against him. (Def. 56.1 28; Pl. 56.1 Resp. ¶ 28). Aguilera did not receive a

copy of Mahaffey’s investigation memorandum prior to the meeting. (Pl. 56.1 ¶ 90; Def. 56.1 

Resp. ¶ 90). Aguilera attended the hearing. (Def. 56.1 ¶ 29; Pl. 56.1 ¶ 90). Aguilera presented 

evidence at the hearing, though he argues that the fact that he did not receive the investigation

memorandum precluded him from presenting a full defense. (Def. 56.1 ¶ 29; Pl. 56.1 ¶ 91). A 

representative from Aguilera’s union was present at the hearing and made a statement on his 

behalf. (Def. 56.1 ¶ 29; Pl. 56.1 Resp. ¶ 29). Following the hearing, the Board officer presiding 

over the hearing created a Recommendation for Termination Memorandum. (Def. 56.1 ¶ 30; Pl. 

56.1 Resp. ¶ 30). 

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Relying on the October 2 hearing, the assistant director for the Board’s Office of 

Employee Engagement recommended to the Board’s Chief Executive Officer that the Board 

terminate Aguilera’s employment. (Def. 56.1 ¶¶ 31-33; Pl. 56.1 Resp. ¶¶ 31-33). The Chief 

Executive Officer recommended termination to the full Board on November 12, 2009 and 

informed Aguilera of his recommendation. (Def. 56.1 ¶ 10; Pl. Resp. ¶ 10). The Board adopted 

the recommendation and terminated Aguilera’s employment on December 16, 2009. (Id.). 

LEGAL STANDARD

Summary judgment is appropriate if “the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. 

P. 56(a); Thayer v. Chiczewski ̧705 F.3d 237, 246 (7th Cir. 2012). In order to survive summary 

judgment, the nonmoving party must set forth facts that show there is a genuine issue of material 

fact for trial “such that a reasonable jury could return a verdict in her favor.” Cincinnati Life Ins. 

v. Beyrer, 722 F.3d 939, 951 (7th Cir. 2013); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 255 (1986). For the purpose of summary judgment, the Court views all facts in the light 

most favorable to the nonmoving party. Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013). 

“Evidence supporting or opposing summary judgment must be admissible if offered at trial, 

except that affidavits, depositions, and other written forms of testimony can substitute for live 

testimony.” Malin v. Hospira, Inc., No. 13-2433, 2014 WL 3896175 at*1 (7th Cir. Aug. 7, 

2014).

DISCUSSION

Aguilera claims that his dismissal violated his rights to procedural and substantive due 

process, and unlawfully retaliated against him for engaging in protected speech. The Court finds

that the Board has demonstrated that no genuine dispute of material fact exists and that the Board 

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is entitled to judgment as a matter of law because Aguilera will not be able to support any of his 

claims.

A. Procedural Due Process

In order to benefit from the protection of the Due Process Clause of the Fourteenth 

Amendment, a plaintiff must make an initial showing that he or she was “deprived of a 

constitutionally protected interest in life, liberty, or property.” Belcher v. Norton, 497 F.3d 742, 

750 (7th Cir. 2007). “[I]n any due process case where the deprivation of property is alleged, the 

threshold question is whether a protected property interest actually exists.” Cole v. Milwaukee 

Area Technical College Dist., 634 F.3d 901, 904 (7th Cir. 2011). Procedural due process protects 

a person’s continued public employment only if that person has “a legitimate claim of 

entitlement” to that continued employment. Id. (quoting Bd. of Regents of State Colleges v. Roth, 

408 U.S. 564, 577 (1972)). State law, not the Constitution, must create the legitimate claim of 

entitlement to continued employment. See Cole, 634 F.3d at 904 (citing Roth, 408 U.S. at 577).

Therefore, the terms of the public employee’s appointment determine whether a constitutionally 

protected property right exists. Cole, 634 F.3d at 904 (quoting Roth, 408 U.S. at 578). Under 

Illinois law, “[t]o show a legitimate expectation of continued employment, a plaintiff must show 

a specific ordinance, state law, contract or understanding limiting the ability of the state or state 

entity to discharge him.” Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009) (quoting Moss v. 

Martin, 473 F.3d 694, 700 (7th Cir. 2007)). Illinois law carries a presumption that employment is 

at-will, and thus not entitled to due process protection. Id.

The parties do not dispute that Aguilera was a non-tenured, probationary appointed 

teacher. In the complaint itself, Aguilera claims that the Bronzeville’s principal could 

recommend termination “if the principal was ‘not satisfied’ with his performance.” (Dkt. 1 ¶ 23).

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Indeed, Aguilera’s job title was explicitly “probationary.” Aguilera has failed to present any 

evidence that the Board’s ability to discharge him was limited in any way. The Board’s 

Employee Discipline and Due Process Policy, which the parties agree governed Aguilera’s 

employment, prescribed procedures for disciplining non-tenured teachers. (See Dkt. No. 49 Ex. 

D). Implying that the Policy’s discharge procedures create a protected property right, Aguilera 

suggests that his discharge was inconsistent with those procedures and therefore violated his 

constitutional right to due process. The Policy, however, is explicitly not an employment 

contract. (Id. at 5). A policy manual with a clear contractual disclaimer is not “an ordinance, a 

state law, [or] an express employment agreement” that would create a protected property interest. 

Rujawitz, 561 F.3d at 688. Rather, the disciplinary policy is a “procedural guarantee” which, 

“whether relied on or not, [does] not establish a property interest protected under the Fourteenth 

Amendment’s Due Process Clause.” Id. Because Aguilera has not produced any evidence to 

overcome the presumption in favor of at-will employment, the Court finds that Aguilera had no 

property interest in continued employment with the Board and his procedural due process claim 

must therefore fail.

Moreover, the Board did provide Aguilera with process that would likely have been 

constitutionally adequate if he possessed a property interest in his employment. Due process

requires that the government provide an opportunity to be heard before depriving an individual 

of life, liberty, or property. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). 

Had Aguilera demonstrated a legitimate claim on entitlement to his continued employment, the 

Due Process Clause would require only that the Board provide “oral or written notice of the 

charges against him, an explanation of the [Board’s] evidence, and an opportunity to present his 

side of the story.” Carmody v. Bd. of Trs. of Univ. of Ill., 747 F.3d 470, 475 (7th Cir. 2014) 

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(quoting Loudermill, 470 U.S. at 546). Here, the Board satisfied each of these conditions. Thus, 

even if Aguilera had a property right to his employment, Aguilera’s procedural due process 

claim would likely fail.

The Board is therefore entitled to summary judgment on Aguilera’s claim that his 

dismissal violated procedural due process.

B. Substantive Due Process

The “scope of substantive due process is very limited.” Belcher v. Norton, 497 F.3d 742, 

753 (7th Cir. 2007). Substantive due process protects “against governmental interference with 

certain fundamental rights and liberty interests.” Hayden ex rel. A.H. v. Greensburg Cmty. Sch. 

Corp., 743 F.3d 569, 575 (7th Cir. 2014) (quoting Washington v. Glucksberg, 521 U.S. 702, 720 

(1997)). Fundamental rights are “those which are deeply rooted in this Nation’s history and 

tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would 

exist if they were sacrificed.” Id. Public “employment-related rights are not fundamental; an 

alleged wrongful termination of public employment is not actionable as a violation of substantive 

due process unless the employee also alleges the defendants violated some other constitutional 

right or that state remedies were inadequate.” Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 

2010). If no fundamental right is at stake, a plaintiff must show that public officials abused their 

power with behavior that “shocks the conscience” in order to establish a substantive due process 

violation. Geinosky v. City of Chi ̧675 F.3d 743, 750 (7th Cir. 2012) (citing Rochin v. California, 

342 U.S. 165, 172 (1952)).

As noted above, Aguilera has failed to establish that he had any protected property 

interest in his employment. Thus, his substantive due process claim must fail, as a protected 

property right is a necessary predicate of such a challenge. See Veterans Legal Defense Fund v. 

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Schwartz, 330 F.3d 937, 941 (7th Cir. 2003); see also New Burnham Prairie Homes, Inc. v. 

Village of Burnham, 910 F.2d 1474, 1479 (7th Cir. 1990) (“Before a party may assert a due 

process argument – procedural or substantive – it must establish that it has a ‘legitimate claim of 

entitlement’ to the right being asserted.”). Even if Aguilera did possess a property interest in his 

employment, the Board would be entitled to judgment in its favor. Aguilera’s complaint alleges 

only that the Board’s decision to terminate him was “arbitrary and capricious” and that he has 

suffered damages as a result of the termination. The complaint contains no allegation of 

additional constitutional violations, that state remedies were inadequate, or that the Board’s 

behavior shocked the conscience. Aguilera’s submissions in opposition to the Board’s summary 

judgment motion neither mention nor present evidence relevant to any of these requirements. 

Aguilera has therefore failed to state an actionable substantive due process claim or refute the 

Board’s claim that no genuine disputes of material fact exist with respect to these elements. 

The Board is therefore entitled to summary judgment on Aguilera’s claim that his 

dismissal violated substantive due process.

C. First Amendment Retaliation 

To succeed on a First Amendment retaliation claim, a public employment must 

demonstrate “(1) that she engaged in constitutionally protected speech; (2) she suffered a 

deprivation because of her employer’s action; and (3) her protected speech was a but-for cause of 

the employer’s action.” Diadenko v. Folino, 741 F.3d 751, 755 (7th Cir. 2013). The burden of 

establishing causation is “divided between the parties.” See Surita v. Hyde, 665 F.3d 860, 874 

(7th Cir. 2011). First, the plaintiff must demonstrate that the protected speech was a motivating 

factor, or sufficient condition, of the dismissal. See Greene v. Doruff, 660 F.3d 975, 978 (7th Cir. 

2011) (“A ‘motivating factor,’ as the term is used in the cases, is a sufficient condition, but never 

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a necessary one[.]”). Next, the defendant must show that it would have taken the same action 

whether or not the plaintiff had engaged in the speech, in other words that the speech was not a 

necessary condition or but-for cause, of the dismissal. Id. at 979. This burden shifting approach 

reflects the notion that the Constitution is “sufficiently vindicated if such an employee is placed 

in no worse a position than if he had not engaged in the [protected] conduct.” Id. (quoting Mt. 

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977)).

Aguilera’s relevant speech was constitutionally protected. In his response to the Board’s 

motion for summary judgment, Aguilera clarifies that the speech on which he bases his 

retaliation claim is his novel and explicitly not his discussion of the book with students while he 

was a public employee that gives rise to his retaliation claim. (Dkt. No. 60 at 10) (“Plaintiff is 

not claiming that he had a right to talk about his book to his class”). There is no dispute that 

Aguilera wrote Gabriel’s Fire years before he was a public employee. Neither the Board, nor 

this Court, has any quarrel with the notion that the First Amendment permits private citizens to 

compose literary works on any subject they choose.

Aguilera cannot establish, however, that that speech “was at least a motivating factor” in 

the Board’s decision making process. Diadenko, 741 F.3d at 756. A motivating factor means a 

condition sufficient to cause the Board to terminate Aguilera’s employment. See Greene, 660 

F.3d at 978. This cannot be the case. The Board was aware of Gabriel’s Fire when it hired 

Aguilera. Were the content of the book a condition sufficient for Aguilera’s discharge, he could 

neither have been hired nor could he have worked at Bronzeville. Notwithstanding the logical 

impossibility of his position, the evidence does not support the claim that the content of the novel 

was a motivating factor in his dismissal. Aguilera cites deposition testimony concerning 

Gabriel’s Fire by those responsible for his discharge, arguing that the Board’s employees’ 

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disdain for its content caused his termination. All of the cited statements are ambiguous. While 

the Court is obligated to make reasonable inferences in Aguilera’s favor as the non-moving 

party, the Court cannot conclude that these statements would allow a reasonable jury to infer that 

the content of the book was a sufficient condition for Aguilera’s dismissal. Rather, the deposition 

testimony supports only the inference that the Board had become uncomfortable with the fact 

that Aguilera discussed his book and encouraged his students to read it, an activity Aguilera 

concedes he had no right to do. (Dkt. 60 at 10). Thus, Aguilera has not carried his initial burden 

of demonstrating that the book was a sufficient condition for his termination. 

Nevertheless, even if Gabriel’s Fire were a motivating factor in the Board’s decision, 

Aguilera’s retaliation claim would fail because “another dramatic and perhaps abrasive incident 

also influenced” the Board’s decision. See Diadenko, 741 F.3d at 756 (quoting Mt. Healthy, 429 

U.S. at 285-86). Had Aguilera carried his initial burden, the Board would have to prove that 

Gabriel’s Fire was not a necessary condition of Aguilera’s termination. Greene, 660 F.3d at 979.

The findings contained in Mahaffey’s investigation memorandum are sufficient to demonstrate 

that the Board would have taken the same action against Aguilera regardless of the existence of 

the book. While it is unlikely that the content of the book garnered any sympathy in those 

responsible for Aguilera’s termination, it likewise was not necessary to the Board’s decision to 

terminate. Aguilera had been found to have an inappropriate relationship with a female student. 

Specifically, the Board found that Aguilera stated that he wanted to marry a student, gave her 

gifts, invited her to sit with him alone in his car, sent her at least one good-night text message, 

and allowed the student to read love letters from an ex-girlfriend. While the Board also found 

that Aguilera encouraged the student to read his book, nothing suggests that this singular finding 

was necessary to its decision to terminate him. The Board’s proffered reasons for terminating 

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Aguilera establish that Aguilera’s authorship of Gabriel’s Fire was not a necessary condition of 

his termination.

Aguilera likewise cannot show that the Board’s justification for his termination was 

pretext. A plaintiff can establish pretext either directly, with evidence demonstrating that 

“retaliation was the most likely motive for terminating him,” or indirectly, by demonstrating that 

the defendant’s “proffered justifications were not worthy of credence.” Vukadinovich v. Bd. of 

Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002). In simple terms, Aguilera 

must demonstrate that the Board’s justification for his dismissal “is a lie.” Zellner v. Herrick, 639 

F.3d 371, 379 (7th Cir. 2011). Here, Aguilera encounters the same problem he encountered 

meeting his initial burden: the Board was aware that the book existed when the Board hired him 

and during the beginning of his employment. The Board did not fire or discipline Aguilera, 

despite the fact that it was well aware the book existed and in fact added the book to the 

Bronzeville library. It strains credulity to suggest that the Board hired Aguilera with knowledge 

of the book, added the book to its library, and then fired Aguilera because of the book, but not 

because of his inappropriate relationship with a female student. 

The Board is therefore entitled to summary judgment on Aguilera’s claim that his 

dismissal was in retaliation for speech protected by the First Amendment.

CONCLUSION

For the reasons stated herein, the Board’s motion for summary judgment is granted.

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: September 29, 2014

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