but rather followed the advice of her counsel and declined to be

interviewed by the Park Board’s investigator due to the on-going Grand

Jury investigation. Therefore, the Park Board’s decision to terminate her

employment based upon her act of following the advice of her counsel in

not speaking with the investigator, who would be subject to subpoena by

the DuPage County State’s Attomey’s Office pursuant to their Grand Jury

powers, cannot be the basis of the Board’s termination.
Schillerstrom also asserted that Atwell was unaware that her salary exceeded the
budgetary amount and pointed to other employees who had received greater-than-
budget payments without being terminated.

The Board responded by affirming its decision to terminate Atwell. In a June
16, 2000, letter from Holtz’s partner James Wascher, the Park District informed Atwell
for the first time that any “compelled” information she had provided the investigator
could not have been used against her in a subsequent criminal prosecution. The letter
cited D’Acquisto v. Washington, 640 F. Supp. 594 (N.D. Ill. 1986) for that proposition
and advised that “[t]he statement in your June 1 letter that Ms. Atwell was justified in
refusing to speak with the Park District’s investigator, Kevin Simon, because he ‘would
be subject to subpoena by the DuPage County State’s Attorney’s office pursuant to
their Grand Jury powers’ is without merit.”

The independent investigation found no wrongdoing or impropriety by Atwell.
Nevertheless, at some point the Park District publicly released information implying

that Atwell was involved with financial improprieties committed at the Park District

-4-


y. Mayor and City Council of Baltimore, 48 F.3d 773, 777 (4th Cir. 1995) (“the need

for an explanation did not ripen because no officer attempted to invoke his Fifth
Amendment rights during the polygraph tests”) (emphasis added); Hill v. Johnson, 160
F.3d 469, 472 (8th Cir. 1998) (no duty to advise where employee failed to show up for

polygraph examination). We, too, agree that the rule set forth in Gulden strikes the

appropriate balance between a public employee’s privilege against self-incrimination
and a public employer’s right to question the employee about the performance of her

official duties. And we agree with the Park District that in this case, as in Gulden, no

affirmative grant of immunity was required. Atwell’s assertion of her Fifth
Amendment privilege was premature; the privilege must be raised with specificity in
response to particular questions. See, e.g., People v. Urbano, 1986 WL 7680, at *1

(N.D. Ill. June 30, 1986) (citing cases); In re Bon Voyage Travel Agency, Inc., 449 F.

Supp. 250, 253 (N.D. Ill. 1978) (citing cases). By refusing outright to submit to an
interview regarding the charges against her, Atwell cut off any opportunity for the Park
District to propound the type of specific questions which might induce a proper
invocation of the Fifth Amendment and, in this context, trigger the need for an
explanation of the limited use to which her answers could lawfully be put. Under the
circumstances, the Park District’s refusal to advise Atwell of the potential availability
of Garrity immunity was not improper, and thus Atwell’s discharge was not unlawful.

Accordingly, the motion to dismiss Count I is granted.

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1993). The allegations of a complaint should not be dismissed for failure to state a
claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S.

41, 45-46 (1957); see also Hartford Fire Insurance Co. vy. California, 509 U.S. 764
(1993); Sherwin Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7th

Cir. 1994), Nonetheless, in order to withstand a motion to dismiss, a complaint must
allege facts sufficiently setting forth the essential elements of the cause of action.
Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992).

In reviewing a Rule 12(6)(6) motion to dismiss for failure to state a claim, the
Court is limited to the allegations contained in the pleadings themselves. Documents
incorporated by reference into the pleadings and documents attached to the pleadings
as exhibits are considered part of the pleadings for all purposes. Fed. R. Civ. P.
10(c). In addition, "[d]ocuments that a defendant attaches to a motion to dismiss are
considered a part of the pleadings if they are referred to in the plaintiff's complaint
and are central to her claim." Venture Associates Corp. v. Zenith Data Systems
Corp., 987 F.2d 429, 431 (7th Cir. 1993). It is with these principles in mind that we

turn to the motion before us.


and that she was an active participant in obtaining a salary that was greater than that
budgeted by the Board. Atwell alleges that at the time the Park District released the
information to the public, it knew or should have known the information was incorrect.
She also claims the publication of the information prohibited her from obtaining a job
substantially similar to that which she performed for the Park District.

On November 17, 2000, Atwell filed suit against the Park District. The three-
count complaint alleges that the Park District terminated Atwell in violation of the Fifth
Amendment guarantee against self incrimination; that it deprived her of the liberty to
pursue her chosen occupation without due process of law; and that it discharged her in
retaliation for her exercise of her right to remain silent in violation of Illinois law. The
Park District has moved to dismiss the complaint in its entirety.

LEGAL STANDARD

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the
sufficiency of the complaint, not to decide the merits of the case. Defendants must
meet a high standard in order to have a complaint dismissed for failure to state a
claim upon which relief may be granted. In ruling on a motion to dismiss, the court
must construe the complaint’s allegations in the light most favorable to the plaintiff

and all well-pleaded facts and allegations in the plaintiff's complaint must be taken

as true. Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir.

-5-


to advise does not arise until a specific question is posed, and objected to, by the

employee. In support of its position, the Park District cites the Fifth Circuit case of

Gulden v. McCorkle, 680 F.2d 1070 (1982). In Gulden, two police officers were
terminated for refusing to take polygraph tests. They sued, alleging that their
termination violated their constitutional right to remain silent, since they were never
informed that their answers to the polygraph examiner’s questions could not be used
against them in subsequent criminal proceedings. The Fifth Circuit rejected the
officers’ argument, holding that any duty to advise a public employee of his or her
Garrity immunity does not arise until the employee actually appears at a scheduled
examination or other proceeding and is faced with questions that directly implicate his
Fifth Amendment rights. Because the officers failed to appear for their polygraph
examination, the court explained, there was no “particularized, specific inquiry in
which questions of immunity could be properly framed.” Id, at 1075-76. The court
further “decline[d] to promulgate the rule...that would allow an employee, before he
or she is required to respond to any questions, to circumvent an investigatory
proceeding by claiming generalized fifth amendment concerns prior to the time those
concerns have been developed in a particularized context.” Id, at 1076.

Although the Seventh Circuit has never adopted Gulden in a published opinion,

the Fourth and Eighth Circuits have followed the Fifth Circuit’s holding. See Wiley

-8-


Minute Orde Form (06/97)

3

4 J United States District Court, Northern District of Illinois
Ketvagees nie: | Charles P. Kocoras | siting terme
NcAs¥ NUMBER 00 C 7267 DATE 3/7/2001
CASE Atwell vs. Lisle Park District
TITLE

of the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) Qa Brief in support of motion due

@) oO Answer brief to motion due__. Reply to answer brief due___.

(4) Oo Ruling/Hearing onset for___at

(5) im) Status hearing[held/continued to] [set for/re-set for]on__——setfor__— at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—sset ffor__— at
(7) o Trial{set for/re-set for]on_____at

(8) Oo [Bench/Jury triat] [Hearing] held/continued to__—_aat

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) (General Rule21 OFRCP41(a\(1) CI FRCP41(a)(2).

state law claim set forth in Count III is dismissed without prejudice.

a1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
lo no 4 number of notices

{In the fotlowing box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

ao) off [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: Defendant’s motion
(Doc 6-1) to dismiss is granted in its entirety. Counts I and II are dismissed with prejudice. The pendent

Notices mailed by judge’s staff. MAR @ g 2008

Notified counsel by telephone.
&

Copy to juggerimagistrate judge.

Y | Docketing to mail notices. ad Co
VY | Mail AO 450 form, 7 :
dato mailed notice

courtroom
ScT deputy’s
initials

Date/time received in ;
central Clerk’s Office mailing deputy initials



factors: 1) “the private interest that will be affected by the official action;” 2) “the risk
of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards;” and 3) “the
Government’s interest.” Id, (quoting Mathews, 424 U.S. at 335). In Cleveland Board

of Education v. Loudermill, 105 S. Ct. 1487 (1985), the Supreme Court found that the

importance of a public employee’s interest in her job, combined with the government’s
strong interest in expeditious removing unsatisfactory or untrustworthy employees
from its ranks, created a due process requirement of some sort of pre-termination
hearing. The analysis is the same for a public employee’s liberty interest in pursuing
her profession. See, e.g., D’Acquisto, 640 F. Supp. at 613 (citing cases).

The internal investigation initiated by the Park District provided Atwell with an
opportunity to present her version of the facts and to address the allegations against her
prior to her termination. That Atwell chose not to take advantage of this opportunity,
albeit due to a misinterpretation of the legal consequences of her participation, does not
alter the fact that the Park District satisfied its duty to afford her due process. As this

Court observed in D’Acquisto v. Washington, 640 F. Supp. 594, 623 (N.D. II. 1986),

“putting the individual to the choice between his opportunity to be heard and his
privilege against self-incrimination is not an impermissible burden on his Fifth

Amendment rights.” Accordingly, the motion to dismiss Count II is granted.

-ll-


II. Procedural due process

The Park District next moves to dismiss Count II, in which Atwell alleges that
the Park District deprived her of her liberty interest in pursuing her profession without
due process of law. “When the government removes someone from a position ‘for
stated reasons likely to make him all but unemployable in the future, by marking him
as one who lost his job because of dishonesty or other job-related moral turpitude,’ the
consequences are akin to depriving him of the ability to follow his chosen trade, and
due process must be provided.” Pleva v. Norquist, 195 F.3d 905 (7th Cir. 1999)
(quoting Lawson v. Sheriff of Tippecanoe County, Ind., 725 F.2d 1136, 1139 (7th
Cir.1984)). The Park District acknowledges that, according to the complaint, it made
false statements which deprived Atwell of her ability to pursue her chosen occupation.
It contends, however, that its internal investigation and appeal procedure offered
Atwell notice and an adequate opportunity to be heard in defense of her actions.
We agree.

Due process requires “the opportunity to be heard at a meaningful time and in
a meaningful manner.” Cooper v. Salazar, 196 F.3d 809, 814 (7th Cir. 1999) (quoting
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893 (1976)). This is a flexible
concept where the requirements “vary with the type of proceeding involved.” Id.

(quoting Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct. 1502 (1960)). In assessing

whether particular procedures were sufficient in a given situation, we balance three

-10-


DISCUSSION
I. Privilege against self-incrimination
It is well-settled that a public employee may be required, on penalty of
discharge, to answer even potentially incriminating questions that are specifically,
directly, and narrowly related to the performance of her official duties. Gardner v.
Broderick, 392 U.S. 273, 88S. Ct. 1913 (1968); Uniformed Sanitation Men Ass’n, Inc.
y. Commissioner of Sanitation, 392 U.S. 280, 88 S. Ct. 1917 (1968); Confederation of

Police v. Conlisk, 489 F.2d 891, 894 (7th Cir. 1973), cert. denied 94 S. Ct. 1971

(1974). Any information provided under such circumstances is, however, considered
to be “compelled” and may not be used in subsequent criminal proceedings against the
employee. Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967). Although the
Garrity immunity is self-executing, the Seventh Circuit has held that a public employee
must be advised that her statements cannot be used against her before the employer

may take disciplinary action in response to her refusal to divulge information. United

States v. Devitt, 499 F.2d 135 (1974); Conlisk, 489 F.2d at 894; see also Gardner, 392

U.S. at 279 (“Petitioner could not have assumed — and certainly he was not required
to assume — that he was being asked to do an idle act of no legal effect.”)
There is no doubt in this case that the Park District did not advise Atwell of her

Garrity immunity prior to firing her. The Park District argues, however, that the duty

-7-


constitutional right to remain silent and would not cooperate with the investigation
unless Simon first provided Atwell with a list of interview questions or areas of
inquiry. By letter of May 15, 2000, Simon informed Schillerstrom that after
consideration of the matter, he declined to provided the requested information. He
insisted that Schillerstrom inform him by 2:00 p.m. the following day whether Atwell
would comply with the Board’s explicit direction to participate in an interview with
him. Schillerstrom apparently never responded.

On May 25, 2000, Holtz informed Atwell by letter that the Board had terminated
her employment. Holtz offered two reasons for the Board’s decision: Atwell’s “failure
and refusal to cooperate fully and truthfully with the Park District’s internal
investigation” and her “knowing or negligent” receipt of salary payments in excess of
the budgeted amount. Holtz informed Atwell that she could request a review of her
termination by submitting a written request to the President of the Board within five
days.

On June 1, Schillerstrom submitted a four-page appeal to the Board on Atwell’s
behalf. He responded specifically to each of the Board’s stated reasons for Atwell’s
termination. With respect to the failure to cooperate charge, Schillerstrom wrote:

The Grand Jury investigation was targeted at our client and triggers her

Fifth Amendment privilege pursuant to the United States Constitution.

Ms. Atwell did not willfully fail to respond with a Park District Directive,

-3-


The Board’s attorney, Charlene Holtz, apprised Atwell of her suspension by
telephone on May 1, 2000. Holtz followed up with a May 10 letter which advised
Atwell that the investigator would be contacting her and that it was “the direction of
the Park Board that you cooperate fully and truthfully with the internal investigation.”
On May 7, Holtz met with Atwell in person to collect Park District property in Atwell’s
Possession. At this meeting Holtz again instructed Atwell to cooperate fully with the
investigator. She also informed Atwell that the DuPage County State’s Attorney’s
Office had convened a grand jury to investigate the allegations against her.

On May 8, the Board’s investigator, attorney Kevin Simon, left a message at
Atwell’s home indicating his desire to interview her in connection with the
investigation. He spoke with Atwell the following day, and Atwell told him that she
would have her attorney contact him regarding the interview. Atwell met with her
attorney, Robert Schillerstrom, that afternoon. Schillerstrom advised Atwell to
exercise her right, guaranteed by the Fifth and Fourteenth Amendments to the United
States Constitution, to remain silent with respect to the investigation. He did not
immediately contact Simon, however.

On May 10, Simon sent a letter to Atwell requesting that her attorney contact
him immediately about scheduling the interview. Schillerstrom did not do so until May
12. At that time, he informed Simon that Atwell would exercise her purported

-2-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SARAH E. ATWELL, )
)
Plaintiff, )
)
vs. ) 00 C 7267

)
LISLE PARK DISTRICT, )
)
Defendant. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter is before the Court on Defendant Lisle Park District’s motion to
dismiss the complaint. For the reasons set forth below, the motion is granted.

BACKGROUND

For the purposes of Defendant’s motion to dismiss, we must accept as true the
following well-pleaded allegations of the complaint: In January 1999, Plaintiff Sarah
E. Atwell was hired by Defendant Lisle Park District (the “Park District”) as its
Director of Development. On April 27, 2000, the Park District initiated an internal
investigation of allegations that Atwell had misused Park District funds and concealed
her conduct from the Board of Park Commissioners (the “Board”). On April 27, 2000,

the Board suspended Atwell with pay pending the results of the investigation.


III. Retaliatory Discharge

Defendants finally move to dismiss Count III, a pendent state law claim for
retaliatory discharge. “[TJhe general rule is that, when all federal claims are dismissed
before trial, the district court should relinquish jurisdiction over pendent state-law
claims rather than resolving them on the merits.” Kennedy v. Schoenberg, Fisher &

Newman, Ltd., 140 F.3d 716, 727 (7th Cir. 1998); 28 U.S.C. § 1367(c)(3); see also

United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130 (1966). Finding no
unusual circumstances that would justify the continued exercise of supplemental
jurisdiction, we dismiss the remaining state law claim for retaliatory discharge, without
prejudice.
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted in its entirety.
Counts I and II are dismissed with prejudice. The pendent state law claim set forth in

Count III is dismissed without prejudice.

CRB. Pee

Charles P. Kocoras
United States District Judge

Dated: _ March 7, 2001

-12-