Reputation itselfis not a liberty interest protected under the Fourteenth Amendment. Siegert
v. Gilley, 500 U.S, 226, 233 (1991). Rather, to implicate a liberty interest, charges of defamation
must be coupled with the alteration of a lcgal status, such as the loss of employment, Moreover, the
constitutionally protected liberty interest in cases such as this is quite narrow. An employee’s liberty
interest is infringed only if “the circumstances of the discharge, at least if they were publicly stated,
had the effect of blacklisting the employee from employment in comparable jobs.” Trejo v. Shoben,
319 F.3d 878, 889 (7" Cir. 2003). “The employee’s . .. reputation . . . must be called into question
im a manner that makes it virtually impossible for the employce to find new employment in his
chosen field.” Townsend v. Vallas, 256 F.3d 661, 670 (7" Cir, 2001) (emphasis added).

Emery’s Section 1983 claim fails because she has, in fact, found comparable employment
in her chosen field. At defendants’ request, the court takes judicial notice of the fact that Emery has
worked as an attorney for the law firm of Ancel, Glink, Diamond, Bush, DiCiani & Rolek, P.C.,
specializing in local government law, since July of 2003. http://Avww.ancelglink.com/attorneys
/ckc_bio.html.? Emery’s job as an attorney at an established Chicago law firm precludes her from
arguing that defendants’ actions deprived her of a liberty interest in pursuing a career in the field of
her choosing and rebuts her claim that it is “virtually impossible” for her to find employment in her
field. See, e.g., Trejo, 319 F.3d at 889; Townsend, 256 F.3d at 670 (holding that plaintiff could not
show that his firing as a lifeguard foreclosed prospective employment opportunities because he

retained employment as a swim instructor with another employer).

? Pursuant to Fed. R. Evid. 201(b) and (d), the court, upon request by one of the parties,
must take judicial notice of facts “capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned” if the requesting party supplies the
court with the necessary information. The court determines that it may take judicial notice of
Emery’s current employment with Anccl, Glink based on that firm’s publicly available internet
web site.

4.



255, 258 (2d Cir. 1995); Mayon v. S. Pac. Transp. Co. , 805 F.2d 1250, 1252-53 (Sth Cir. 1986) (only
remedy available for employee terminated for filing FELA claim are the remedies under the Railway
Labor Act, not FELA); Landfried v. Terminal R.R. Assoc., 721 F.2d 254, 256 (8th Cir. 1983)
(“Congress has not enacted a statule prohibiting an employer from discharging an employee in
retaliation for filing a FELA action.”); see also Bielicke v. Terminal R.R. Assoc., 30 F.3d 877, 878
(7th Cir. 1994).

Nonetheless, Emery argues that, because she does not have a remedy under the RLA, the
court should allow her to bring a FELA retaliation claim, While the lack of a remedy under the RLA
could conceivably affect the availability of a retaliation claim under Illinois law, the court cannot
find, and Emery does not cite, any authority for the proposition that the lack of an RLA remedy
allows the court to creale a retaliation cause of action under FELA. Emery’s motion for
reconsideration is denied.

H. Defendants’ Motion to Dismiss

On a Rule 12(b)(6) motion to dismiss, the court accepts all well-pleaded facts as true and
draws all reasonable inferences in the plaintiff's favor. Hernandez v. City of Goshen, 324 F.3d 535,
537 (7th Cir.2003). A complaint will not be dismissed unless it appears beyond doubt that the
plaintiff can prove no set of facts that would entitle him to relief under the law. Jd.

The only remaining federal claims in Emery’s complaint are (a) her Section 1983 claim that
defendants deprived Emery of her constitutionally protected liberty interest in her reputation and in
pursuing the occupation of her choice and (2) her Section 1983 claim that defendants conspired to
deprive her of those liberty interests. Defendants have moved to dismiss those claims, arguing that,
because Emery has found comparable employment in her field, there is no set of facts by which
Emery can prove that she was deprived of a constitutionally protected liberty interest. The court

agrees with defendants’ analysis.



A liberty interest is not implicated where the change in employment merely results in reduced
compensation or diminished prestige. Munson vy, Friske, 754 F.2d 683, 693 (7 Cir, 1985).
Moreover, mere proof that Emery was “somewhat less attractive to some other employers would not
establish the requisite foreclosure of opportunities.” Jd. Rather, the constitution protects only
Emery’s ability to pursuc her chosen profession. In light of Emery’s current employment as an
attorney within her field of expertise, there is simply no set of facts by which Emery can prove her
Section 1983 claim. Defendants’ termination of Emery may have stigmatized her and may be
actionable as a state defamation claim. However, defendants’ acts do not reach a constitutional
dimension. Because Emery has not stated a claim for which relief can be granted, both her Section
1983 claim (Count V) and her Section 1983 Conspiracy claim (Count VI) are dismissed.

Since no viable federal claims remain, the court relinquishes jurisdiction over Emery’s
pendent state claims.’ Emery’s amended complaint is dismissed in its entirety. Wright v. Associated
Ins, Cos., 29 F.3d 1244, 1251 (7" Cir. 1994) (“[T]he general rule is that once all federal claims are
dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims
rather than resolvc them on the merits”); Solon v. Kaplan, No. 00-C-2888, 2004 WL 725893, *6

(N.D. Ill. March 31, 2004).

° Because the court does not have jurisdiction over Emery’s remaining state law claims,
the court does not reach Emery’s arguments for reconsideration of the court’s decision to dismiss
Emery’s claim for retaliation under Illinois law.

5.



‘Minute Order Form (06/97)

DIS4e

United States District Court, Northern District of Illinois

Name of Assigned Judge Joan B. Gottschall Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 9303 DATE 6/17/2004
CASE Emery vs. Metra, et al.
TITLE

[In the following box (a) indicate the party tiling the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented]

MOTION:

DOCKET ENTRY:

q) oO Filed motion of [ usc listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) o Answer brief to motion due__.. Reply to answer brief due,___

(4) Oo Ruling/Hearing on setfor at

(5) ao Status hearing[held/continued to] [sel for/re-set for) on setfor at.

(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) Q Trial[set for/re-set forlon at

(8) Oo {Bench/Jury trial] [Hearing] held/continued to at =

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4¢n) local Rule 41.1 CIFRCP41(ay(1)  FRCP41(a)(2).

qo) ff [Other docket entry] Enter Order, Plaintiff's motion for reconsideration [16-1] is denicd.

Defendants’ motion to dismiss amended complaint [20-1] is granted. Case terminated.

a

No notices required, advised in open court

ay

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

No notices required.

number of notices

JUN 2 £2004

sats

Notices mailed by judge's staff.

Notitied counsel by telephone

Dogketing to mail notices,

Mail AQ 450 form. _ 5

P<] >

Copy to judgc/magistrate judge, Via

courtroom we ee
deputy’s eo vee
initials =

RI/TL

Date/time received in
central Clerk's. Gifices
Pe he

mailing deputy initials

tras



CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss Emery’s amended complaint is

granted, Emery’s motion for reconsideration of the court's September 19, 2003 order is denied.

J@AN B. GOTTSCHALL
nited States District Judge

DATED: June 17, 2004



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION i
ELLEN K. EMERY, )
)
Plaintiff, )
v. ) Case No, 02 C 9303

)
NORTHEAST ILLINOIS REGIONAL )

COMMUTER RAILROAD CORPORATION ) Judge Joan B. Gottschall
d/b/a METRA/METROPOLITAN RAIL, et al., )
)
Defendants. )

MEMORANDUM OPINION & ORDER

Plaintiff Ellen Emery has sued her former employer, defendant Northeast Tllinois Regional
Commuter Railroad Corporation d/b/a METRA/Metropolitan Rail (“Metra”), as well as several
individual Metra officials based on her March 4, 2002 termination from her position as Mctra’s in-
house counsel, While at Metra, Emery specialized in defending Metra from cascs brought under the
Federal Employer Liability Act (“FELA”), 45 U.S.C. § 51, etseq. Emery alleges that defendants (a)
terminated her after she brought her own FELA claim against Metra arising out of an injury she
suffered in the workplace, and (b) defamed her by publicly accusing her of breaching her ethical
duties to Metra by providing counsel in her FELA casc with confidential information regarding
Mctra’s FELA defense strategies. Emery claims that defendants’ stigmatizing comments prevented
her from finding other employment opportunities in her field. Based on those allegations, Emery
brought (1) federal claims against defendants for constitutional deprivation of liberty and property
interests under 42 U.S.C. § 1983, conspiracy to violate her constitutional rights, retaliatory discharge
under FELA and federal common law, violation of the Older Workers Benefit Protection Act
(“OWBPA”), 29 U.S.C. § 626(£), and (2) claims under Illinois law for retaliation, defamation, self-

compelled defamation, tortious interference with contractual relations, tortious interference with

prospective economic advantage, and civil conspiracy.

: DA



On September 19, 2003, the court dismissed several of Emery’s claims, including her FELA
and state law retaliation counts.'! On the federal retaliation count, the court held that neither FELA
nor any other federal statute creates a cause of action against an employer for retaliating against an
employee for bringing a FELA claim. In dismissing the state retaliation claim, the court held that
Illinois courts would not likely recognize a claim for FELA retaliation because Emery has an
adequate alternative remedy under the Railway Labor Act (“RLA”), 45 U.S.C. § 151, et seq.

Emery has filed a motion requesting that the court reconsider its September 19, 2003 decision
to dismiss her state and federal retaliation claims. Specifically, Emery argues that she should be
allowed to bring a retaliation claim under state law and FELA because she has no recourse against
defendants under the Railway Labor Act. Along with her motion to reconsider, Emery filed an
amended complaint, attempting to address some of the other deficiencies identified in the court’s
September 19 opinion. Defendants have moved to dismiss that amended complaint, arguing that
Emery’s Section 1983 claim should be dismissed for failure to state a claim and, because Emery has
no other viable federal causes of action, Emery’s state claims should be dismissed for lack of
jurisdiction. For the rcasons stated below, Emery’s motion for reconsideration of the court’s
September 19, 2003 order is denied and defendants’ motion to dismiss Emery’s amended complaint
is granted.

ANALYSIS
i Emery’s Motion To Reconsider The Dismissal Of Her FELA Retaliation Claim

Emery has moved the court to reconsider its decision to dismiss her Section 1983 FELA
retaliation claim, However, “neither [FELA] nor any other source of federal law creates a federal
right against retaliatory discharge” for a plaintiff who is fired after filing a FELA claim. Grafv.

Elgin, Joliet & E. Ry., 790 F.2d 1341, 1344 (7th Cir. 1986); Shrader v. CSX Transp., Inc., 70 F.3d

' Tn addition to dismissing Emery’s Section 1983 and federal retaliation claims, the court
also dismissed the only other federal claim in this action — Emery’s claim under the OWBPA.

-2-