to determine if terminating the programs was proper and plaintiff's subsequent conduct of not
terminating such programs.

Here, plaintiff's speech and conduct pertaining to the legality of terminating courses was a
matter of public concern. The purpose of the plaintiff's actions was to make known that terminating
the courses was not in accordance with Illinois law and that such action was improper. His actions
were not to further some private interest but to further the interests of the public — those who would
be enrolled in the programs or would be unable to enroll in such programs if they were terminated.
See Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 415-16 (1979) (freedom of
speech is not lost to the public employee who communicates privately with his employer rather than
the general public); Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987) (finding it necessary
to “look at the point of the speech in question: was it the employee’s point to bring wrongdoing to
light? Or to raise other issues of public concern ... Or was the point to further some purely private
interest.”),

The facts cited above also demonstrate that the plaintiff has sufficiently pled the second and
third factors of the test. Plaintiff alleges that the defendant’s actions were motivated by his
constitutionally protected conduct, Kokkinis, 185 F.3d at 843, and that the defendant had no other
reason to take such action, Thomsen, 198 F.3d at 1027. Accordingly, plaintiffs first amendment

claim is not dismissed.

Fourteenth Amendment

In determining if an employee’s Fourteenth Amendment rights were violated, the analysis
depends on whether or not the employee had a property right in continued employment with the
employer. Ulichny v. Merton Community School District, 249 F.3d 686, 699 (7th Cir. 2001)
(Ulichny). If an employee does have a property interest in his position, the employer cannot
terminate him without the protections of due process. Ulichny, 249 F.3d at 699. The employment
contract must show that the employer had a reciprocal obligation to provide the position for the
employee in order for the employee to be entitled to “go to work” and thus have a property right in

4


to “balance between the interests of the employee as a citizen, in commentin ig upon matters of public
concern” and the interests of the employer, in “promoting the efficiency of the public services it
performs through its employees.” Pickering v. Board of. Education, 391 U.S. 563, 568 (1968). A
claim for retaliation for the exercise of First Amendment rights entails a three-step analysis. First,
the court must determine whether the plaintiff's conduct was protected under the First Amendment.
Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999) (Kokkinis). The First Amendment's primary
aim is the full protection of speech upon issues of public concern. Connick v. Myers, 461 U.S. 138,
154 (1983)(Connick). If it is demonstrated that the plaintiffs conduct warrants First Amendment
protection, the plaintiff must show that the defendant’s actions were motivated by the plaintiff's
constitutionally protected conduct. Kokkinis, 185 F.3d at 843. The plaintiff must show that the
defendant would not have taken the challenged actions “but for” the constitutionally protected
conduct. Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000) (Thomsen). If plaintiff has met
this burden, the defendant must show by a preponderance of the evidence that it would have taken
the same actions even in the absence of the protected conduct. Thomsen, 198 F.3d at 1027.

In determining whether speech is upon an issue of public concern and therefore protected,
the court must consider the content, form and context of the speech. Connick, 461 U.S. at 147.
“Speaking up on a topic that may be deemed one of public importance does not automatically mean
the employee’s statements address a matter of public concem as the term is employed in Connick.”
Kokkinis, 185 F.3d at 844. The public element is lacking if the conduct “concerns a subject of
public interest but the expression addresses only the personal effect upon the employee.” Cliff v.
Board of School Comm'rs of City of Indianapolis, 42 F.3d 403, 410 (7th Cir. 1994).

Defendant argues that plaintiff fails to satisfy the first part of the test because his claim is
based on his rebuttal to his evaluation. However, a close reading of the complaint indicates that the
rebuttal letter is not the alleged protected speech. Instead, the alleged protected speech is informing
the defendant that he was not going to terminate the programs. This is directly inferred from his
allegation that Ms. Granados disagreed with his conclusion after plaintiffundertook an investigation

3


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his job. Ulichny, 249 F.3d at 700-01 , quoting Terry v. Woods, 803 F.Supp. 1519, 1523-24
(E.D.Wis.1992). To establish such a property right, the plaintiff must show that he had more than
an abstract need or desire for it; the plaintiff must establish that he had a legitimate claim or
entitlement to it. Ulichny, 249 F.3d at 702, quoting Board of Regents y. Roth, 408 U.S. 564, 577
(1972).

In the present case, plaintiff failed to allege in his complaint that he had a constitutionally
protected property right in his position as Dean of Business and Technology with defendant.
Plaintiff did not allege that his employment contract with defendant imposed a reciprocal duty upon
defendant to maintain and continue his position even after plaintiff refused to follow the orders of
his superiors. Plaintiff's expectation in maintaining his position after refusing to withdraw the
programs was not enough to establish a constitutionally protected property interest in his position.
Accordingly, plaintiff's Fourteenth Amendment claim is dismissed,
B. Motion to Dismiss as to Count II

To state a cause of action for retaliatory discharge, plaintiff must establish that he was ¢ 1)
discharged, Q)i in retaliation for his activities, and (3) that the discharge violates a clear mandate of
public policy. Long v. Commercial Carriers, Inc., 57 F.3d 592, 594 (7th Cir. 1995), ,

Defendant argues that plaintiff did not adequately state the statutory provision that pertained

to his action so the Court is unable to determine if plaintiff's discharge violates a clear mandate of

public policy. However, at this stage of the litigation, the plaintiff has sufficiently pled facts that
put the defendant on notice of the claims against it. While future discovery may lead to information
that proves plaintiff cannot prove this cause of action, such conclusions are not appropriate at the

motion to dismiss stage. See Scott, 195 F.3d at 951.



Minate Orde Form (06/97)
United States District Court, Northern District of Illinois
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 01 C 4000 DATE 10/23/2001
CASE MELVIN BUTTS vs. TRITON COLLEGE
TITLE
Un the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due.
(3) o Answer brief to motion due. . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) im) Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(72) Oo Trial[set for/re-set for] on _ at
(8) Qo {Bench/Jury trial] [Hearing] held/continued to at
(9) 1) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (OGeneralRule21 OFRCP41(a\(1) CFRCP41(a)(2).
qo) [Other docket entry] Status hearing held and continued to 11/20/01 at 9:30 a.m. Enter
Memorandum Opinion And Order. Defendant’s 12(b)(6) motion to dismiss is granted in part and denied
in part. Plaintiff's Fourteenth Amendment claim is dismissed without prejudice, The motion to dismiss
the First Amendment and retaliatory discharge claims is denied. Defendant's answer to be
filed by 11/13/01.
gi ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required, umber of nies
Notices mailed by judge’s staff. a
Notified counsel by telephone. ocr 25 20
o | Docketing to mail notices.
Mail AO 450 form,
Copy to judge/magistrate judge.
courtroom dale maited notice
LG deputy’s
initials
Date/time received in
central Clerk's Office smaling deputy initials



CONCLUSION
For the reasons set forth above, defendant’s 12(b)(6) Motion to Dismiss is granted in part and
denied in part. Plaintiffs Fourteenth Amendment claim is dismissed without prejudice. The motion

to dismiss the First Amendment and retaliatory discharge claims is denied.

Dated:

United States District Judge


UNITED STATES DISTRICT COURT D OCKE TED
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION OCT 2.5 2001
MELVIN BUTTS, )
)
a )
Plaintiff, )
) No. 01 C 4000

v. )

) Judge John W. Darrah
TRITON COLLEGE, )
)
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Melvin Butts, commenced an action against defendant, Triton College (the
College), alleging that defendant violated 42 U.S.C. §1983 and plaintiff's rights under the First and
Fourteenth Amendments of the United States Constitution. Plaintiff also alleges a state law claim
for wrongful termination. Before this Court is defendant’s Motion to Dismiss under Rule 12(b)(6).

BACKGROUND
Plaintiff was employed by defendant between July of 1997 and June of 2001. Defendant is

a community college organized under the laws of the state of I!linois and subject to the rules and
regulations of the Illinois Community College Board.

Plaintiff began his employment with the defendant as the Associate Dean of Business and
Technology in July of 1997. Plaintiff performed his responsibilities in this position in a satisfactory
manner, and his contract with defendant was extended on January 28, 1998, until June 30, 2000. On
March 19, 1998, plaintiff was appointed interim Dean of Business and Technology. On January 27,
2000, plaintiff was approved for a promotion as the Dean of Business and Technology. Plaintiff
assumed his new position on January 31, 2000.

On June 24, 2000, plaintiff was directed by his superiors to withdraw the engineering and

machine tool technology programs at the College. Instead of terminating these programs, plaintiff

\


investigated whether termination of the programs was appropriate under Illinois law. Plaintiff
concluded that the termination of the programs at the College would have been in violation of
Illinois law because the number of full-time students majoring in the programs was too high for the
programs to be terminated. Plaintiff did not terminate the programs.

In September 2000, plaintiff was advised by his superiors that his actions in failing to
terminate the programs would lead to his discharge. In October 2000, plaintiff was again evaluated.
The evaluation noted a concern that plaintiff had a difficult time making administrative decisions
and that he needed to “begin to view himself as an administrator and carry out the responsibilities
that have been given to him”. On October 11, 2000, plaintiff submitted a written rebuttal in response
to the job evaluation. The rebuttal stated, in part, that the plaintiff “concluded and made the decision
that neither program warranted being orderly withdrawn at that time. Ms. Granados disa greed, albeit
the evidence was overwhelmingly in support of my conclusions and recommendations.” On
December 20, 2000, plaintiff was terminated from his position by the President of the College. The
President’s action was approved by the Board on January 23, 2001.

DISCUSSION

Federal notice pleading requires that a plaintiff “set out in [the] complaint a short and plain

statement of the claim that will provide the defendant with fair notice of the claim.” Scott v. City

of Chicago, 195 F.3d 950, 951 (7th Cir. 1999) (Scott). In reviewing a motion to dismiss, the court

reviews all facts alleged in the complaint and any inferences reasonably drawn therefrom in the light
most favorable to the plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323,
326 (7th Cir.2000). Dismissal is warranted only if the plaintiff can prove no set of facts in support
of its claims that would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
A. Motion to Dismiss as to Count I
First Amendment

In determining whether an employee’s First Amendment right to freedom of expression has

been violated after alleging discharge because of what the employee expressed, the court will seek

2