IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BLACKOUT SEALCOATING, INC., an

Illinois corporation, KIMBERLY

KOLINEK, an individual, and PAUL

KOLINEK, an individual11

Plaintiffs,

v.

TERRY PETERSON, Chairman of the

Board of Chicago Transit Authority,

FORREST CLAYPOOL, President of the

Chicago Transit Authority, ALEJANDRO

SILVA, Chairman of Committee on

Finance, Audit, and Budget, MARINA

POPOVIC, Vice-President of hte

Chicago Transit Authority, and the

CHICAGO TRANSIT AUTHORITY, an

Illinois municipal corporation,

Defendants.

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MEMORANDUM OPINION AND ORDER

Plaintiffs Kimberly and Paul Kolinek are the owners of

plaintiff Blackout Sealcoating, Inc., a company engaged in the

business of asphalt and other construction work. In their First

Amended Complaint (“FAC”), plaintiffs claim that defendants

deprived them, without due process of law, of their constitutional

occupational liberty interest by debarring them from doing business

with defendant Chicago Transit Authority (“CTA”) for a period of

one year. Now before me is defendants’ motion to dismiss the FAC,

which I grant for the reasons that follow.

Case: 1:12-cv-04369 Document #: 64 Filed: 09/21/12 Page 1 of 8 PageID #:554
I.

According to the complaint, the Kolineks own and operate

Blackout, which has been a successful contractor since 1997, and

which performed asphalt, concrete, and equipment leasing work for

the CTA from approximately 2007, when it was awarded two contracts

for this type of work (“CTA contract 552” and “CTA contract 343,”)

until May of 2012. Plaintiffs allege that despite Blackout’s

ongoing satisfactory performance of these contracts, the CTA sent

Blackout a Notice of Intent to Debar in September of 2010, then

sent an Amended Notice of Intent to Debar in March of 2011. 

Plaintiffs responded to both of these letters in writing. On May 8,

2012, defendants decided to debar plaintiffs and the following day

sent them a letter informing them of that decision.1

Plaintiffs’ debarment was subsequently posted on the CTA’s

website, and Blackout’s contracts with the CTA terminated. On June

5, 2012, plaintiffs filed the instant action, claiming that

defendants deprived them of their occupational liberty--that is,

their right to pursue their chosen occupation--in violation of the

due process clause of the Fourteenth Amendment. Plaintiffs seek

both damages and injunctive relief.

1The FAC includes allegations relating to the substance of

these notices, plaintiffs’ responses to them, and the debarment

proceedings. I need not address these allegations, however,

because their relevance is to the adequacy of the process

plaintiffs were allegedly afforded-–an issue I do not reach in view

of my threshold conclusion that the FAC does not articulate the

deprivation of plaintiffs’ asserted constitutional right. 

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II.

A motion to dismiss tests the sufficiency of a complaint, not

its merits. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).

I accept all well-pleaded factual allegations as true, and I

consider the facts in the light most favorable to the plaintiff. 

Id. Nevertheless, to survive a motion under Rule 12(b)(6), a

complaint must present sufficient facts “to raise a reasonable

expectation that discovery will reveal evidence” to support the

plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements” will not suffice. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A procedural due process claim mandates a two-part analysis. 

Pugel v. Board of Trustees of University of Illinois, 378 F.3d 659,

662 (7th Cir. 2004). I must first determine whether plaintiffs

have adequately alleged the deprivation of a liberty interest. See

id. If they have, I must proceed to examine whether the process

they allege was adequate. Id.

Plaintiffs do not survive the first hurdle. For the sake of

economy, I address only a few of the complaint’s many flaws. To

begin with, the factual material in the FAC cannot reasonably be

read to situate plaintiffs’ claims within the narrow class of cases

in which state action so thoroughly extinguishes an individual’s

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ability to pursue his or her chosen career as to threaten that

person’s liberty interest in pursuing an occupation. 

The Fourteenth Amendment protects the right of individuals “to

engage in any of the common occupations of life.” Board of Regents

of State Colleges v. Roth, 408 U.S. 564, 572 (1972). But the

Constitution’s guarantee of what has come to be known as

“occupational liberty,” is narrow. D’Acquisto v. Washington, 640

F. Supp. 594, 608-09 (N.D. Ill. 1986) (“[t]he liberty interest in

pursuing an occupation is defined narrowly.”) It does not guarantee

the right to a specific job, Wroblewski v. City of Washburn, 965

F.2d 452, 455 (7th Cir. 1992), nor even does it protect against

conduct that “causes serious impairment of future employment

opportunities.” McMahon v. Kindlarski, 512 F.3d 983, 988 (7th.

Cir. 2008). Indeed, individual occupational liberty is threatened

only by conduct that calls into question an individual’s “‘good

name, reputation, honor or integrity’ in a way that ma[kes] it

‘virtually impossible’” to find employment in one’s chosen field.

Id. 

Plaintiffs assert that their debarment “seriously threatens

their ability to engage in their chosen profession,” FAC at ¶ 5,

but the complaint does not substantiate this conclusory statement

with the kind of factual material that would raise their right to

relief “above the speculative level.” Twombly, 550 U.S. at 555

(2007). Plaintiffs argue, in response to defendants’ motion, that

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they “have been precluded from all government contracting.” But

this is a far cry from what the complaint actually alleges. The

only contracts plaintiffs claim to have lost as a result of their

debarment are CTA Contract 343 and CTA Contract 552. Plaintiffs

do not allege that these contracts represented a substantial

portion of their overall business, nor do they allege (although

they do argue) that they are foreclosed from pursuing contracts

with other government agencies. Plaintiffs make the sweeping

statement, again in opposition to defendants’ motion, that “[m]ost,

if not all municipal codes and governing articles require

government entities to hire only ‘responsible contractors.’” But

the complaint does not claim that any such code or article has ever

been applied to plaintiffs as a result of their debarment, nor does

it allege that plaintiffs have been prevented from bidding on or

obtaining any public contract for which plaintiffs were otherwise

qualified. 

Nor, of course, do the referenced regulations have any bearing

on plaintiffs’ ability to pursue gainful work in the private

sector. Nothing in the complaint suggests that plaintiffs lack

opportunities for pursuing their vocation through non-government

contracts, or even that plaintiffs’ business has traditionally been

focused on public-sector work. “[A] court should not simply

assume, based on a plaintiff’s assertions, that a wide variety of

opportunities have been foreclosed.” Townsend v. Vallas, 256 F.3d

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661, 671 (7th Cir. 2001). For all that the complaint reveals,

plaintiffs have a robust private clientele, which they continue to

service successfully to this day. 

In short, the factual allegations in the complaint are

insufficient to support plaintiffs’ claim that they became

“virtually unemployable” in their chosen field as a result of their

debarment. Accordingly, they do not state a violation of

plaintiffs’ constitutional liberty interest.

Even, however, if plaintiffs could, in good faith, amend their

complaint to cure the foregoing defects, their claim would be

doomed by a second problem: the complaint pleads no publication of

stigmatizing information. To plead their claim properly,

plaintiffs would have to allege that: “(1) [they were] stigmatized

by the defendant’s conduct; (2) the stigmatizing information was

publicly disclosed; and (3) [they] suffered a tangible loss of

other employment opportunities as a result of public disclosure.”

McMath v. City of Gary, 976 F.2d 1026, 1032 (7th Cir. 1992). But

here, even if plaintiffs proved every factual allegation in their

complaint, they still would not have established the first two

elements of their claim.

The allegedly stigmatizing information plaintiffs assert is:

1) the statement, published on the CTA website, that plaintiffs

were debarred; and 2) the allegedly false underlying reasons for

the debarment, which plaintiffs claim “are contained in the CTA’s

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files.” FAC at ¶¶ 63, 69. The first statement cannot be

stigmatizing because, as all agree, it is true. “True but

stigmatizing statements that preclude further government employment

do not support” an occupational liberty claim. Strasburger v.

Board of Educ., Harding County, 143 F.3d 351, 356 (7th Cir. 1998). 

And the underlying reasons for the debarment, whatever their truth

or falsity, have not, as a matter of law, been publicly disclosed. 

McMath, 976 F.2d at 1035 (“the publication requirement is not

satisfied with the mere existence of a ‘likelihood of public

disclosure.’ ... Information kept within the department...may

indeed be a ‘ticking time bomb,’... but until the time bomb

explodes–i.e., until the information is disseminated–there is no

publication and no constitutional tort.”) (internal citations

omitted). McMath thus forecloses plaintiffs’ argument that they

have satisfied the second element with allegations that the reasons

for their debarment are “contained in the CTA’s files.” Indeed,

the only case plaintiffs cite for this proposition is D’Acquisito

v. Washington, 640 F. Supp. 594 (N.D. Ill. 1986), which preceded

the Seventh Circuit’s decision in McMath. 

For the foregoing reasons, I conclude that plaintiffs have not

stated a violation of their liberty interest. Accordingly, I need

not reach the issue of whether the process they were afforded with

respect to their debarment was due. See McMahon v. Kinlarski, 512

F.3d 983, 987-88 (7th Cir. 2008). 

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III.

For the reasons discussed above, defendants’ motion to dismiss

the First Amended Complaint is granted.

 ENTER ORDER:

 ________________________

 Elaine E. Bucklo

 United States District Judge

Dated: September 21, 2012

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