is finally deprived of his property.”) However, “[p]roperty interests are created and their
dimensions are defined by existing rules or understandings that stem from an independent
source such as state law.” Ulichny v. Merton Cmty. Sch. Dist, 249 F.3d 686 (7th Cir. 2001)
(citing Bd. of Regents v. Roth, 408 U.S. 564, 576-78 (1972)) (internal quotations omitted).

In Illinois, a person has a “legitimate expectation of continued employment . . . based
on a legitimate claim of entitlement.” Draghi v. County of Cook, 184 F.3d 689, 692 (7th Cir.
1999) (citing Faustrum v. Bd. of Fire & Police Comm’rs of Vill. of Wauconda, 608 N.E.2d
640, 641 (Ill. App. Ct. 1993)). Ellis’s previous job performance and longevity in employment
do not establish a legitimate expectation of employment. See Smith v. Bd. of Educ. of the City
of Chi., 853 F.2d 517, 521 (7th Cir. 1988). A legitimate expectation of continued
employment must be rooted in a specific ordinance, state law, contract or understanding that
the City is able to discharge. See Draghi, 184 F.3d at 692 (citing Krecek v. Bd. of Police
Comm'rs of La Grange Park, 646 N.E.2d 1314, 1318-19 (Ill. App. Ct. 1995)). Ellis
references no ordinance, rule, contract or law that supports a legitimate expectation of
continued employment. Therefore, Ellis does not set out facts alleging a property interest in
her employment position and cannot bring an action under § 1983 based on a deprivation of a
property interest without due process.

The due process clause of the Fourteenth Amendment secures the liberty to pursue a
calling or occupation, not the right to a specific job. Ulichny, 249 F.3d at 704-5 (citations
omitted). The dismissal of a government employee infringes a liberty interest where the
individual’s good name, reputation, honor or integrity are at stake by such charges as
“immorality, dishonesty, alcoholism, disloyalty, Communism or subversive acts; or the state
imposes a stigma or other disability on the individuat which forecloses other employment
opportunities.” Lashbrook v. Oerkfitz, 65 F.3d 1339, 1348 (7th Cir. 1995). Here, Ellis alleges
that she will be labeled an “attorney abuser” and that this reputation will preclude her from

obtaining employment in her chosen field. (R. 10, Pl.’s Resp. at 5.) However, “[i]t stretches



misuse of City telephones, but rather her need to substantiate her feud with other employees.
Thus, Ellis has failed as a matter of law to properly state a First Amendment retaliation claim.
Finally, Ellis alleges that the City engaged in retaliatory discharge in violation of
Illinois common law. To maintain this narrowly defined tort action Ellis must show that she
was discharged in retaliation for her complaints and that the discharge is in contravention of
Illinois public policy. See Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 493 (IL.
1998). This tort may be pursued where an employee is discharged in retaliation for reporting
illegal or otherwise improper conduct. See id.
The City contends that the retaliatory discharge claim is barred by the Tort Immunity
Act, see 745 ILCS 10/2-201, which immunizes municipalities from liability for the
performance of acts that are discretionary and involve policy determinations. The Act states in
pertinent part:
Except as otherwise provided by statute, a public employee serving in a
position involving the determination of policy or the exercise of
discretion is not liable for an injury resulting from his act or omission in
determining policy when acting in the exercise of such discretion even
though abused.
745 ILCS 10/2-201.
“[A]n employee may be granted immunity if he holds either a position involving the
determination of policy or a position involving the exercise of discretion.” Harinek v. 161 N.
Clark St. Ltd. P’ship, 692 N.E.2d 1177, 1181 (Ill. 1981) (emphasis in original). However,
“immunity will not attach unless the plaintiff injury results from an act performed or omitted
by the employee in determining policy and in exercising discretion.” Harinek, 692 N.E.2d at
1181. Because employee actions are immune from suit for such discretionary policy
decisions, the City is also immune from suit under the Act where the tort in question flows
from the employee. 745 ILCS 10/2-109.
To determine whether the Act applies in this case, we must examine whether Ellis has
pleaded that the City discharged her in a manner involving a determination of policy and an
7



ANALYSIS

Under 42 U.S.C. § 1983 a governmental employer may not act under the color of state
law to deprive a citizen of the United States of her constitutional rights. Ellis, however,
cannot raise a challenge against the City under §1983 without pleading the requisite elements
of municipal liability under the statute. Municipal liability under § 1983 cannot arise under a
respondeat superior theory for torts committed by City employees. Monell v. Dep’t of Soc.
Servs. of the City of N.Y., 436 U.S. 658, 663 (1978). Rather, the unconstitutional action must
implement or execute “a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers.” Jd. at 690. The Monell court further added that
persistent widespread practices by state officials could constitute a usage or custom, thus
creating § 1983 liability. Jd. at 690-691.

Ellis alleges that the City’s policy of not providing discharge hearings to exempt/non-
career employees deprived her of a property and/or liberty interest. Although the City argues
that the Monell line of cases contemplates policies that are unlawful, (R. 11, Def.’s Reply at
3), the inquiry under Monell is whether the municipal policy in question “caused a
constitutional tort,” Monell, 436 U.S. at 691, Therefore, we must determine whether Ellis has
adequately alleged that the City committed a constitutional tort against her. Ellis claims that
she was deprived of a property and/or liberty interest in violation of the Fourteenth and First
Amendments because she was not afforded due process as to her property and was fired in
retaliation for exercising protected speech.

Ellis claims that she was deprived of a property interest, her job, without due process
because she was not afforded a hearing to appeal her termination. The Fourteenth
Amendment provides that no state shall deprive any person of life, liberty or property without
due process of law. U.S. Const. amend. XIV, § 1. If Ellis has a legitimate property interest in
her employment, she states a valid claim. Wolff'v. McDonell, 418 U.S. 539, 557 (1974) (“The

Court has consistently held that some kind of hearing is required at some time before a person



the concept too far to suggest that a person is deprived of liberty when he simply is not rehired
in one job but remains as free as before to seek another.” Draghi, 184 F.3d at 693 (quoting
Roth, 408 U.S. at 575) (internal quotations omitted). Ellis does not allege that she is unable to
find employment because of the City’s actions. Even taking her allegations as true, the City’s
actions do not rise to the level of a constitutional violation; damage to one’s reputation by a
state actor does not implicate a federally protected liberty interest. See Doyle v. Camelot Care
Ctrs., Inc., 305 F.3d 603, 617 (7th Cir. 2002). Indeed, even when a label “seriously impairs”
the opportunity for employment, no protected liberty interest is implicated. fd. Additionally,
Ellis has not alleged that the news of her termination has been disseminated in a manner that
publicly impugns her, which might potentially lead to difficulty in securing another job. See
Eberhard v. O'Malley, 17 F.3d 1023, 1028 (7th Cir. 1994). Only when the state actor’s
conduct makes it “virtually impossible for the [individual] to find new employment in his
chosen field,” has the state infringed upon the protected liberty interest. Doyle, 305 F.3d at
617 (citing Townsend v, Vallas, 256 F.3d 661, 670 (7th Cir. 2001)). Although Ellis alleges
damage to her reputation, she only speculates as to her prospects for future employment.
Therefore, Ellis cannot sustain a Fourteenth Amendment due process claim under § 1983
based on a protected liberty interest.

We next turn to Ellis’s claim under the First Amendment. To establish a First
Amendment retaliation claim, the facts alleged in the complaint must show that (1) the speech
Ellis engaged in was constitutionally protected under the circumstances, and (2) the City
retaliated against her because of it. Caldwell v. City of Elwood, Ind., 959 F.2d 670, 672 (7th
Cir. 1992) (citations omitted). Ellis alleges that her complaints were constitutionally protected
because they expressed concerns about the misuse of public resources. Speech is
constitutionally protected if a government employee proves not only that (1) the speech
touched a matter of public concern, but also that (2) the employee’s First Amendment interest

on the matter is not outweighed by any injury that the speech might inflict on the government



exercise of discretion. Harinek, 692 N.E.2d at 1181. Policy determinations are those acts
that require the balancing of competing interests to make a judgment as to what solution will
best serve those interest. Harinek, 692 N.E.2d at 1181. In the case at bar, a City official was
required to make a decision concerning the effect disputes between its employees had on
efficiency and harmony in the workplace; this was, in effect, a policy decision. Discretionary
acts are unique to a particular public office and involve the exercise of judgment. Corning v.
East Oakland Tp., 670 N.E.2d 350, 352 (Ill. App. Ct. 1996). In particular, decisions of hiring
and firing are discretionary acts barred under Section 2-201 of the Tort Immunity Act. See
Johnson v. Mers, 664 N.E.2d 668, 675 (Ill. App. Ct. 1996) (defining discretionary acts as
those “not performed on a given state of facts in a prescribed manner,” and in particular
describing hiring as a discretionary act). Likewise, the decision to fire someone involves
balancing a set of given circumstances to arrive at an appropriate outcome; the outcome is not
predetermined but left in the hands of an official to use proper judgment. See Zinnermon v.
City of Chicago Dept. of Police, 209 F, Supp. 2d 908, 911 (N.D. Ill. 2002). Clearly then, the
City’s act of discharging Ellis was a discretionary decision. Therefore, the City is immune
from suit under the Tort Immunity Act.
CONCLUSION
For these reasons, we grant City’s motion to dismiss in its entirety. (R. 7-1.) The

Clerk is instructed to enter final judgment pursuant to Federal Rule of Civil Procedure 58

against Ellis,
werner, ECE
Judge Ruben Castillo
United States District Court
Dated July 8, 2003



| ‘Mute Order Form §86/97)

ASQ United States District Court, Northern District of Illinois
jame of ed Jud; i fu T
wage Magitate Judge Ruben Castillo “Than Aarigned Jodge
| CASE NUMBER 03 C 471 DATE 7/8/2003
CASE Edna Ellis vs. City of Chicago
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

| ion bei 2d.
| MOTION: of the motion being presented]

|
DOCKET ENTRY:
() i) Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
@) Q Answer brief to motion due. . Reply to answer brief due
4) ao Ruling/Hearingon____sset for ____att
(5) a Status hearing[held/continued to] [set for/re-set for]on__—sset for Saat
(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_———at_—
(7) o Trial{set for/re-set for]on__—__—aat
@) O [Bench/Jury trial] [Hearing] held/continued to___at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 C)FRCP41(aX(1) OFRCP41(a}{2).

qo) i [Other docket entry] Enter Memorandum Opinion and Order, Defendant’s motion to dismiss the
first amended complaint [7-1] is granted. Judgment is entered in favor of the defendant, City of Chicago
and against the plaintiff, Edna Ellis. This case is hereby dismissed with prejudice.

da) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required.

number of notices

Notices mailed by judge’s staff.
Notified counsel by telephone.
oY | Docketing to mait notices.

v Mail AO 450 form.

WUE Wy weet
due docketed

Copy to judge/magistrate judge. ‘yynod dow) isid ‘sn
| Ro sens gon Wa 8- Tar EO
initials —_——
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interest in promoting the efficiency of its services. See Alexander v. Somer, No. 01 C 1908,
2002 WL 31557607, at *4 (N.D. Ill. Nov. 18, 2002) (citing Bonds v, Milwaukee County, 207
F.3d 969, 979 (7th Cir. 2000)). “Whether an employee’s speech addresses a matter of public
concern must be determined by the content, form and context of a given statement. . . .”
Connick v. Myers, 461 U.S. 138, 147-48 (1983). Speech on matters of public concern has
been defined as “speech relating to any matter of political, social, or other concern to the
community.” Khuans v. School Dist. 110, 123 F.3d 1010, 1014-15 (7th Cir. 1997) (citing
Connick, 461 U.S. at 146). Thus, matters of public concern are distinct from personal
grievances. See Gustafson v. Jones 117 F.3d 1015, 1018 (7th Cir. 1997) (distinguishing
speech on matters of “public concem” as “matters in which the public might be interested, as
distinct from wholly personal grievances or casual chit- chat”) (citations omitted); Lashbrook,
65 F.3d at 1350 (a dispute between an employee and an employer is not a matter of public
concern). Indeed, “[t]o presume that all matters which transpire within a government office
are of public concem would mean that virtually every remark . . . would plant the seed of a
constitutional case.” Connick, 461 U.S. at 149.

We believe that Ellis’s complaint alleges only a personal grievance, which is
insufficient to constitute a matter of public interest. Ellis, in her amended complaint, alleges
that she was separated from her position because of a complaint filed by an attorney with
whom she had an on-going feud. Ellis also states that an earlier complaint of misuse of public
resources partly led to her discharge. Ellis does not allege that she sought to inform the public
about her co-worker’s abuse of City property; rather, her complaint alleges that she informed
only her superiors of her co-worker’s actions. See id. (rejecting plaintiff's First Amendment
claim when she did not seek to inform the public about improprieties in District Attorney’s but
only sought to attempt to transform her displeasure with her job transfer into a “cause

celebre.”). It is clear from her complaint that the focus of Ellis’s gripe was not the alleged



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION ANRKETEN
EDNA ELLIS. 4
} IL 9 9 7099
Plaintiff, )
; No. 03 C 471
ve
) Judge Ruben Castillo
CITY OF CHICAGO, )
)
Defendant. )
M RANDU: INIO) ORDE)

Edna Ellis (“Ellis”) filed suit under 42 U.S.C. § 1983 and Illinois common law,
claiming that the City of Chicago (‘“‘City”) violated her civil rights and state public policy
when it discharged her without a hearing in retaliation for complaints she made against co-
workers. Defendant seeks dismissal of all counts under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim upon which relief can be granted. Although
Plaintiff has alleged the requisite constitutional torts to establish municipal liability under
§ 1983, she has shown no liberty or property interest in her employment sufficient to establish
a due process violation. Nor has she adequately demonstrated that she engaged in speech that
tose to a level to justify the protection of the First Amendment. Finally, Plaintiff's wrongful
discharge claim under Illinois law is tenuous at best, and otherwise barred by the Local
Governmental and Government Employees Tort Immunity Act (“Tort Immunity Act”).
Therefore, we grant the defendant’s motion to dismiss, (R. 7-1.)

RELEVANT FACTS

Ellis worked as a legal secretary for the City of Chicago from March 1991 until
October 2002. (R. 6, Am. Compl. { 2.) In June 2002 the City suspended Ellis for seven days
after Ellis complained to her superiors that a co-worker, Jo Anne Garrett (“Garrett”), was
using a work phone for private conversations, which Ellis believed disrupted the workplace.
(id. at §{ 4-6.) Garrett, in turn, filed a complaint with her superiors which led to Ellis’s

suspension. (Id. at J 6.) \ Za



Ellis’s termination in October 2002 arose out of a complaint she made in the prior
month. In September 2002 Plaintiff complained about attorney Elene Vitacco’s (“Vittaco”)
rude, insulting and disruptive behavior when Vitacco asked Ellis to move furniture. (Id. at J
7.) Ellis’s superiors initially agreed that moving furniture was not within the parameters of
her job description. (/d. at {7 7-8.) After Vitacco complained to superiors about Ellis,
however, Ellis was told to do anything an attorney told her to do, “short of murder.” (id. at J
9.) Ellis alleges that Vitacco began to verbally abuse her for this incident. (/d. at ] 10.) Ellis
drafted a memo to contest her treatment by her co-workers and the assignment of tasks outside
her job description. (/d. at 11.) Vitacco then filed a complaint against Ellis alleging verbal
abuse, which ultimately resulted in Ellis’s termination. (Jd. at [J] 12-13, 15.) Ellis sought a
hearing concerning her discharge, but was advised that as an exempt/non-career employee she
did not have appeal rights and was not entitled to a hearing. (Jd. at ] 14, 20.)

Subsequently, Ellis brought this complaint alleging a violation of the Civil Rights Act
of 1871, 42 U.S.C. § 1983. Ellis contends the City acted under the color of state law to
deprive her of her First and Fourteenth Amendment rights. Specifically, she alleges that she
was denied a property and/or liberty interest in her employment without due process. (Id. at J]
23-27.) Ellis also claims that she was fired in retaliation for exercising her constitutional right
to freedom of expression. (Id. at {{ 31-33.) Additionally, Ellis alleges her termination
violated the Illinois common law of wrongful discharge. (Id. at J] 40-43.)

LEGAL STANDARDS

On a motion to dismiss, we accept all well-pleaded allegations in the complaint as true
and draw all reasonable inferences in favor of the plaintiff. City Nat’! Bank of Fla. v.
Checkers, Simon & Rosner, 32 F.3d 277, 281 (7th Cir. 1994). Dismissal is proper only where
it appears beyond doubt that the plaintiff can prove no set of facts in support of her claims that
would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).