Defendants enjoyed final decision-making authonity.””); Baxter v. Vigo County Sch. Corp., 26
F.3d 728, 735 (7" Cir. 1994) (stating that “it must first be alleged adequately that a defendant is a
final policymaker. Only then can a court proceed to the question of whether the single act or
dccision of that defendant constituted municipal policy.”). Accordingly, plaintiff's Section 1983
claim against the College of DuPage is dismissed, without prejudice.”

Next, defendants argue that plaintiff's Section 1983 claim against Emami and Abel in their
individual capacities should be dismissed because the complaint does not allege that plaintiff's
speech addressed a matter of public interest. To state a claim of retaliation based on a First
Amendment violation, “‘the facts alleged in the complaint must show that (1) the speech in which
the plaintiffs engaged was constitutionally protected under the circumstances, and (2) the
defendants retaliated against them because of it."” Delgado y. Jones, 282 F.3d 511, 516 (7" Cir.
2002) (quoting Gustafson v. Jones, 117 F.3d 1015, 1018 (7" Cir. 1997). A government

ee,

employce’s speech warrants First Amendment protection if it “‘addresses a matter of public
concem.’” Id, (quoting Connick v. Myers, 461 U.S. 138, 147 (1982)). To determine whether
speech addresses a matter of public concer, (he courl examines the “content, form, and context”
of the speech, focusing on content as the most important factor, Id. at 517.

Exposing the misuse of public funds may be a matter of public concern. See Breuer

v. Hart, 909 F.2d 1035, 1039 (7" Cir. 1990) (allegations that sheriff stole county property and

allowed employee to [raudulently accept compensation were matters of public concern). Lere,

? The court notes that plaintiff's Section 1983 claim against Emami and Abel in their
official capacities is duplicative of her suit against the College of DuPage. See Nebel v. City of
Burbank, No. 01 C 6403, 2003 WL 1606087, at *3 (N.D. Ill, Mar. 27, 2003). Accordingly, that
portion of the claim also is dismissed.



ORDERED: Delendanis’ motion io dismiss [6-1] is granted m part and denied in part.
Plaintiff is given fourteen days from the entry of this order to amend Count I against College of
DuPage; failure to do so will result in the dismissal of that claim with prejudice.

ENTER: ~

George W. Lindberg
Senior U.S. District Judge

DATED: September 23, 2003



(7" Cir, 1999), That is, if it is possible to hypothesize a sct of facts that would cntitlc the plaintiff
to relief, consistent with the allegations in the complaint, dismissal under Rule 12(b)(6) is
inappropriate. Graehling v. Village of Lombard, 58 F.3d 295, 297 (7 Cir. 1995).

Defendants first argue that plaintiff's Section 1983 claim should be dismissed against
College of DuPage, because the complaint fails to allege that the deprivation of nghts was caused
by an employee with final policymaking authority. A municipal entity cannot be held vicariously
liable under Section 1983 through the doctrine of respondeat superior. Monell y. Department of
Social Servs., 436 U.S. 658, 694 (1978). Such an entity can be sued under Section 1983 only if
the constitutional injury was caused by a person with “final policymaking authority,” or in two
other contexts not relevant here.'! See McConmick v. City of Chicago, 230 F.3d 319, 324 (7" Cir.
2000).

Plaintiff alleges that defendants Emami and Abel, whom she identifics merely as
employees of the College of DuPage, issued warnings and disciplinary letters to her. She also
alleges that defendants terminated her employment. She does not allege that Emami, Abel, or
anyone clse who took action against her, was a person with final policymaking authority, Nor can
the court infer from the actions alleged that they were taken by a person with final policymaking
authority. These allegations arc insufficient to put the College of DuPage on notice of the claim
against it. Scc Llorwitz v. Board of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 619 (7 Cir,
2001) (affirming dismissal of Section 1983 claim where district court had stated that “it did not

‘even [have] ‘bare allegations’ from which to string together an argument that the individual

! Plaintiff does not argue that her alleged constitutional deprivation was authorized by
express policy, or through a widespread practice constituting a custom or usage.

3



plaintiff alleges that she wrote in a memorandum lo Emami and Abel that she had “professional
and ethical problems with the arrangement and usage” of the Team Fund. Plaintiff further alleges
that the fund was maintained through contributions from profits that otherwise would have gone
to the College of DuPage, and that it was used to pay for personal items for the clerical staff.
Plaintiff’s statement appears to address the public concern of misuse of public funds.

Defendants argue that even if the misuse of public funds may be a matter of public
concern, plaintiff made her statement as an expression of a purely private concern. In support of
their argument, defendants note that plaintiff labeled her memorandum “confidential,” and that
she does not allege thal she sent the memorandum to anyone else, or complained publicly about
the Tcam Fund. Defendants further note that plaintiff alleges that she was aware of the automatic
deduction for the Team Fund when she began working for the College of DuPage, but did not
complain about it until she became the highest grossing salesperson in the department, and thus
the ercatest contributor. Plaintiff responds that the complaint alleges that the moncy contributed
to the fund was taken out of profits that the College of DuPage would have otherwise reccived,
implying that plaintiff bad no monetary interest in the moncy contributed to the fund. Plaintiff
also observes that she wrotc in her memorandum that she would not contribute to the fund
because of cthical problems with the arrangement.

Tt is true that the public concem element is lacking where the speech “concerns a subject
of public interest but the expression addresses only the personal effect upon the employee.” Cliff

v. Bd. of Sch. Comm’rg, 42 F.3d 403, 410 (7" Cir, 1994) (quoting Marshall y. Porter County Plan

Comm’n, 32 F.3d 1215, 1219 (7" Cir. 1994)) (emphasis in original), Llowever, given the

allegations that plaintiff made her complaint based on ethical concerns, and that the College of



Minute Quider Famer (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

George W. Lindberg

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 03 C 4358 DATE 9/23/2003
CASE Christina Carpanzano vs. College of DuPage
TITLE
{in the following box (a) indicate the party filing the motion, ¢.z., pluintiff, defendant, 3rd party plaintiff, and (b) state briefly the natuie
MOTION: of the motion being presented. |
DOCKET ENTRY:
(1) im Filed motion of [ usc listing in “Motion” box above.|
(2) a Brief in support of motion due
(3) o Answer brief to motion due . Reply to answer brief due :
(4) oOo Ruling/Hearing on set for at
(3) o Status hearing[held/continued to] (set for/re-set for] on _ Set for at _
(6) Oo Pretrial conference[held/continucd to] [set for/re-set for} on ___ sct for at
(7) Bb ‘Trial[set for/re-set for) on at
(8) o [Bench/Jury trial] (Iearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant ta]
OOFRCP4(m) CLocal Rule 41,1 COFRCP41(a){1) O FRCPAI(a)(2).
ao =o [Other docket entry} | Defendants’ motion to dismiss (6-1) is granted in part and denicd in part.
Plaintiff is given until October 8, 2003 to amend Count | against College of DuPage; failure to do so will
result in the dismissal of that claim with prejudice. Enter memorandum opinion and order.
(il) [For further detail see order attached to the original minute order.]
No notices required, advised in open court Document
. Number
No notices required numberof ices
Notices mailed by judge’s staff. L.
Notified counsel by telephone. 3 ay 2 4 200 3
a | Docketing to mail notices,
Muil AO 450 farm, ‘6
Copy tu judge/magistrate judge

date mailed notieg
courtroom

deputy’s
initials

SLB

Date/ime-reccived int
central Clerk’s Office

rnuiling deputy initials



DuPage would have otherwise received the money contributed to the Team Fund, dismissal on the
ground that plaintiff spoke out of a purely private concem would not be appropriate.

Defendants next argue that even if plaintiffs expression addressed a matter of public
concer, her claim should be dismissed because it docs not allege sufficient facts to establish that
the expression was a substantial factor in her dismissal. Defendants note that plaintiff submitted
her memorandum to Emami and Abel on Junc 28, 2002, but was not terminated until March 6,
2003, “almost eleven months” later.? Defendants arguc that plaintiff's termination occurred so
long after she submitted her memorandum, that the termination could not have becn motivated by
the speech.

As plaintiff responds, however, her complaint also alleges thal she began receiving
wamings and disciplinary letters from Emami and Abel immediately after she submitted her
memorandum to them, and that she was suspended from her job on January 31, 2003. Taking all
the facts alleged in the complaint to be true, and construing all inferences in plaintiff's favor, the
court cannot say that plaintiff fails to state a claim against Emami and Abel upon which relief
could not be granted.“ The motion to dismiss plaintiff’s Section 1983 claim against Emami and

Abel in their individual capacities is denied.

* By the court’s math, this period amounts to just over eight months.

* Given this disposition, the court need not address defendants’ argument that the College
of DuPage is entitled to immunity under the Local Governmental and Governmental Employer
Tort Immunity Act on the ground that an employer cannot be held liable for the acts of its
employees where such cmployees themselves cannot be held liable.

6



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION DOCKETED

CHRISTINA CARPANZANO, SEP 2 4 2003

Plaintiff,
03 C 4358
v.
Judge George W. Lindberg
COLLEGE OF DUPAGE, an Illinois municipal
entity, MARY LOU EMAMI, and JOYCE ABEL,
individually and in their official capacities

as cmployees of College of DuPage,

we eS SS SSS SS DS

Defendants.
MEMORANDUM OPINION AND ORDER
Defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss
the complaint. For the reasons stated below, the motion to dismiss is granted in part and denied in
part.
Tn considering a motion to dismiss, the court must accept as true all well-pleaded facts and

must draw all reasonable inferences from thosc allegations in plaintiff's favor. MCM Partners.

Inc. y. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 972 (7" Cir. 1995). According to the

allegations in the complaint, defendant College of DuPage is a public community college.
Defendants Mary Lou Emami (“Emami”) and Joyce Abel (“Abel”) were employees of the College
of DuPage. The College of DuPage hired plaintiff in May 2000 as a program manager for its
Center for Corporate Training, in the Business and Professionals Institute.

One of plaintiff’s responsibilities in her program manager position was to sell training
classes to corporations, Ten dollars was automatically deducted {rom the gross sale price of each

training class sold by plaintiff and others, und placed into the “Team Fund.” The money

\"\



contributed to the Team Fund was taken out of profits that otherwise would have gone to the
College of DuPage. The Team Fund was used to pay for personal items for the clerical staff,
including plants, books, gift certificates, and lunches.

Plaintiff was the highest grossing salesperson in the department, and accordingly, her sales
contributed ihe greatest amount to the Tcam Fund. On June 28, 2002, plaintiff wrote a
memorandum to defendants Emami and Abel, stating that she had “professional and ethical
problems with the arrangement and usage of this fund,” and that she would no longer contribute to
It. The ‘Team Fund was discontinued five days later.

According to plaintiff, immediately after she relayed her intention not to contribute to the
Team Fund, she began receiving warnings and written disciplinary letters regarding her job
performance from Emami and Abel. In addition, members of the office staff refused to do her
typing, made degrading comments to her, went through her office (including her personal files),
and frequently withheld her mail, telephone messages, and faxes. On January 31, 2003, plaintiff
was suspended. The suspension continucd until plaintiff was terminated on March 6, 2003.

On June 24, 2003, plaintiff filed this action under 42 U.S.C. § 1983, alleging that
defendants retaliated against her for exercising her First Amendment rights under the United
States Constitution. The complaint also alleges supplemental state law claims of retaliatory
discharge and intentional infliction of emotional distress. Defendants Emami and Abel are sued
both in their individual and official capacities.

When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
court must consider “whether relief is possible under any set of facts consistent with the

allegations of the plaintiff's complaint.” Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839