that plaintiff's statements and organizational efforts were undertaken merely to further her purely
private interest in securing a larger salary.

Neither have defendants convinced me that, as a matter of law, the district’s interest in

preventing employees from unionizing outweighs plaintiff's interest in vocalizing her support for

the union. Defendants argue that plaintiff cannot claim First Amendment protections when such
protections have been permissibly removed through Illinois public sector labor relations law.
Just because plaintiff had no right to join a union, however, does not mean that she had no right
to voice her support for union membership or to criticize the purported misuse of school district
funds.

Only in unusual circumstances will a court resolve the Pickering analysis in defendant’s
favor on the pleadings. The reason is that it is impossible for a plaintiff to anticipate and plead
every reason that a public employer might have to forbid the speech in question.

“[I]t would be a rare case indeed where the pleadings as a whole would permit judgment

as a matter of law on this point, unless the plaintiff was relying on speech that is wholly

unprotected by the First Amendment or the defendant’s justifications were frivolous.

Normally, application of the Pickering balancing test will be possible only after the

parties have had an opportunity to conduct some discovery.”

Gustafson v. Jones, 117 F.3d 1015, 1018 (7" Cir. 1997).

This is not the rare case which can be decided on the pleadings.

For similar reasons, I cannot at this point make a finding that independent reasons (such
as plaintiff's “persistent hostile attitude,” “sarcastic and juvenile . . . remarks,” or her “complete
and utter lack of respect for her supervisors”) justify the Board’s decision to terminate plaintiff.

Such are defendants’ interpretation of the incidents described in the Complaint, but they are not

the only reasonable interpretations. On an undeveloped and much disputed record, the allegation


VI. Conclusion

The motion to dismiss is granted in part and denied in Part. Count IV is dismissed. The

official capacity claims are also dismissed on the pleadings.

ENTER:

on eg)

James B. Zagel ( ye
nited States District kidge
pate: U8 18 2001


Plaintiff brought suit against Dr. Smalley and ten school board members alleging (1)
interference with her First Amendment right of association and free speech rights under color of
law; (2) retaliatory discharge in violation of federal and state law; and (3) intentional infliction of
emotional distress. Defendants now move to dismiss.

I. First Amendment Claim

Rojicek has adequately pled her First Amendment claim against the school district
defendants. A public employee who makes a First Amendment claim against her employer must
show that the speech would be protected if uttered by one who is not a public employee and that
the speech was on a matter of public concern. See Dishnow v. School Dist. of Rib Lake, 77 F.3d
194, 197 (7 Cir, 1996). The district bears the burden of demonstrating that its interests
outweigh the employee’s First Amendment rights. See Gustafson v. Jones, 117 F.3d 1015, 1018
(7" Cir. 1997)(citing Pickering v. Board of Educ., 391 U.S. 563 (1968)).

The allegedly protected expression in this case consists of various comments made to
fellow employees in support of higher pay for support staff and in support of union activity, as
well as comments criticizing management salaries. Clearly, it is the sort of speech that would be
protected if uttered by a non-public employee.

Union organizing is a matter of public concern. See Gregorich v. Lund, 54 F.3d 410 (7
Cir. 1995). So are implicit allegations of misuse of public funds. See Terry v. Village of
Glendale Heights, 1989 WL 106623 (N.D. Ill. 1989). Defendant counters that plaintiff was
merely pursuing a private grievance. But the fact that a public employee has a personal interest
in the topic of her remarks does not mean that the expression is not on a matter of public concern.

See Smith v. Fruin, 28 F.3d 646, 653 (7th Cir.1994). On such undeveloped record, I cannot say


that plaintiff was disrespectful and that she made a payroll error cannot be relied upon to grant a
motion to dismiss.

Ii. Qualified Immunity

Defendants’ qualified immunity defense also fails at this stage. It has been well
established for many years in this Circuit that a public employer may not retaliate against an
employee who exercises her First Amendment speech tights. See Gustafson v. Jones, 117 F.3d
1015 (7" Cir. 1997). More particularly, a public employee has a qualified right to participate in
union organizing speech and activities. See Gregorich y. Lund, 54 F.3d 410 (7" Cir. 1995). In
Illinois that right is limited for certain public education employees, of which plaintiff is one.
Defendant appears to argue that because plaintiff cannot be represented by the union, any speech
she makes about unionization is unprotected. This is not so. The IELRA may have imposed a
limited restriction on plaintiff's associational rights, buf it did not wholly abrogate her free
speech rights.

As for the argument that plaintiffs speech rights were limited because she was an
employee in a position of confidence, this may well be successful at summary judgment. See
Gregorich, 54 F.3d at 418. At present, however, the precise content, form, and context of
Rojicek’s associational activity has yet to be established. When it is, I will reevaluate the
qualified immunity defense.

III. Official Liability

The suit against defendants in their official capacity must be analyzed as a suit against the
municipality itself. I dismiss the official capacity claims on the pleadings pursuant to the

reasoning set forth in Gustafson, 117 F.3d at 1022. Although plaintiff's complaint alleges a


MinutBOrder Ferm (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge Sitti
site Magistrate Jude James B. Zagel “Than Assigned Judge
CASE NUMBER 01 C723 DATE 8/13/2001
CASE ROJICEK vs. RIVER TRIALS SCHOOL DIST. 26
TITLE

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

of the motion being presented.]

ay

as the official capacity claims on the pleadings.

oO [For further detail see order (on reverse side offattached to) the original minute order.]

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due__.

4 a Ruling/Hearingon___setfor__att

(5) im Status hearing[held/continued to] [set for/re-set for]on_____ set for__at

(6) Oo Pretrial conference[held/continued to] {set for/re-set for]on__—ssetfor_——sat_

(7) Qa Trial{set for/re-set for]on___—_aat

(8) im [Bench/Jury trial] [Hearing] held/continued to__at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) (General Rule 21 OOFRCP41(a)(1) 1 FRCP41(a)(2).

(10) WH — [Otherdocketentry] Motion to dismiss is granted/denied in part. Count IV is dismissed as well

No notices required, advised in open court.

No notices required, number of notices

Document
‘Number

Notices mailed by judge’s staff.

Notified counsel by telephone AUG: J. 7..2001
7

Docketing to mail notices. ed

ay a

Mail AO 450 form.

Copy to judge/magistrate judge.

“i

courtroom G1 AUG 16 AN ug axed notice
Dw deputy’s i
initials

Date/time received in
central Clerk's Office railing depuy initials



policy of retaliation against union supporters, it discloses only a single instance of retaliation
against one employee. Plaintiff cannot rely on an isolated incident to establish a practice or
custom that caused plaintiff's injuries. See id; Board of County Comm’rs of Bryan County,
Oklahoma v. Brown, 117 S. Ct. 1382 (1997)(single hiring decision by county sheriff was not
enough to show that County itself had a policy that caused plaintiff’s injuries).

IV. Intentional Infliction of Emotional Distress

The three requirements that are necessary to demonstrate intentional infliction of
emotional distress under Illinois law are (1) the conduct involved must be truly extreme and
outrageous; (2) the actor must either intend that his conduct inflict severe emotional distress, or
know that there is at least a high probability that his conduct will cause severe emotional distress;
and (3) the conduct must in fact cause severe emotional distress. See Honaker v. Smith, 2000
WL 33357195 *9 (7" Cir. 2001). Plaintiff's Complaint does not make it past the first prong.
Her allegation that the Superintendent treated her with “extreme hostility and coldness” and
threatened her job does not come close to the sort of outrageous conduct necessary to state a
claim for intentional infliction of emotional distress. Such unpleasantries fall squarely within the
realm of “insults, indignities, threats, annoyances, petty oppressions, or other trivialities,”” which :
are not actionable under Illinois law. See Honaker 2001 WL 33357195 *9 (quoting McGrath v.

Fahey, 533 N.E.2d 806, 809 (iil. 1988).


UNITED STATES DISTRICT COURT DOCKETED

NORTHERN DISTRICT OF ILLINOIS AUG 1.7 2001
EASTERN DIVISION
MARLENE ROSICEK,
Plaintiff,
v. No. 01 € 723

Judge James B. Zagel
RIVER TRAILS SCHOOL DISTRICT 26,
et al.

Defendants.

MEMORANDUM OPINION AND ORDER

Marlene Rojicek was an administrative assistant for payroll with the River Trails School
District. Her position was terminated in March 2000, purportedly because she was disrespectful
to Superintendent Dr. Shirley Smalley, because she made a payroll error, and because of a
reduction in force. Plaintiff says that she was an excellent employee and that she was fired
because she spoke out against the school board and in favor of unionization of educational
support staff.

It all started at a meeting of central office employees convened by Dr. Smalley in July
1998 at which Dr. Smalley announced that educational support staff employees (of which
plaintiff was one) would receive a 1.7% salary increase for the next fiscal year. Rojicek
considered this a paltry sum. She remarked in the presence of the Superintendent and all of her
colleagues that such a raise would allow her to go alone to a bargain matinee movie once a week,
but that she would have to choose between purchasing a small coke or a box of popcorn because
she would not be able to afford both. The “coke or popcorn,” comment (cited numerous times in

both parties’ briefs) earned Rojicek something of a reputation among schoo! district employees.

LEN


Plaintiff says it became the battle cry that roused the support staff to organize against
management. Defendant says that it shows Ms. Rojicek is something of a smart aleck.

Following the pay raise incident, Rojicek joined in efforts to merge a group of
unrepresented educational support personnel into the teachers’ existing bargaining unit. She
supplied names of new employees to the president of the teacher’s union, talked to other
employees about her support of the union, attended preliminary union meetings, and passed out
union information cards. The unionization was successful, but Rojicek’s position was excluded
from the bargaining unit she helped to organize. Only “educational employees” are entitled to
organize under Illinois law, and the National Labor Relations Board determined that Rojicek’s
position did not come within the statutory definition of an educational employee.!

Although Rojicek could not participate directly in union activities, she continued to voice
her support for unionization. This allegedly angered Dr. Smalley. In October 1999, the
Superintendent reprimanded plaintiff for soliciting new employees to join the union and for
asking the union president for a list of employees so that plaintiff could initiate payroll
deductions of union dues. In January 2000, Dr. Smalley reprimanded her again for advising an
employee to join the union. Plaintiff alleges that when she made a small accounting error in

February 2000, it gave defendants the pretext they needed. They eliminated her position.

' See Illinois Educational Labor Relations Act (TELRA”), 115 ILCS 5/1, et seq. Under
the IELRA, supervisory, managerial, and confidential employees of an educational employer are
denied the right to organize, form, join, or assist employee labor organizations. See 115 ILCS
5/2(b). Confidential employees include those employees who in the regular course of their duties
have access to information relating to the effectuation or review of the employer’s collective
bargaining practices. See 115 ILCS 5/2(n). The National Labor Relations Board determined that
Ms. Rojicek had access to confidential information that could be supplied to union
representatives for negotiation purposes.