CONCLUSION
For the foregoing reasons, the motion for leave to file an amended complaint is

denied. The motion to dismiss is denied as moot.

Charles P. Kocoras
United States District Judge

Dated: _ May 16, 2001

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LEGAL STANDARD

Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure’, a plaintiff may
amend the complaint once as a matter of course at any time before a responsive
pleading is served. Leave to amend a complaint “shall be freely given when justice
so requires.” Fed. R. Civ. P. Rule 15(a). At the same time, “‘a district court may deny
leave to amend if the proposed amendment fails to cure the deficiencies in the original
pleading, or could not survive a second motion to dismiss.” Perkins v. Silverstein, 939
F.2d 463, 471-72 (7th Cir. 1991). The decision whether to grant or deny a motion for
leave to amend is committed to the sound discretion of the district court. Perrian v.
O’Grady, 958 F.2d 192 (7th Cir. 1992).

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the
sufficiency of the complaint, not to decide the merits of the case. Defendants must
meet a high standard in order to have a complaint dismissed for failure to state a
claim upon which relief may be granted. In ruling on a motion to dismiss, the court

must construe the complaint’s allegations in the light most favorable to the plaintiff

‘Because we find that Rule 15(a) provides an appropriate vehicle for Atwell to
press her arguments and for the Court to consider them on the merits, we deny her
alternative motions for relief under Rules 59 and 60. Doe v. Howe Military School,
227 F.3d 981, 993 (7th Cir. 2000) (consideration fo Rule 59 or 60 motion lies within
discretion of trial court).

-4-


4/53.) For constitutional due process purposes, “[nJotice is constitutionally adequate
if it is reasonably calculated to apprise interested parties of the proceeding and afford

them an opportunity to present their objections.” Head_v. Chicago School Reform

Board of Trustees, 225 F.3d 794, 804 (7th Cir. 2000). Atwell admits that she was
aware prior to her termination that she was under investigation for financial
improprieties, including misuse of Park District funds, and that she was expected to
meet with the Park District’s investigator to discuss the charges against her. (See, e.g.,
Amended Complaint at { 12 and Exh. C.) The information the Park District
subsequently released to the public similarly concerned Atwell’s involvement with
“financial improprieties.” (See Amended Complaint at { 51.) Atwell was given
constitutionally adequate notice of these charges. The Park District was not required
to set forth each of the specific allegations against Atwell in its initial notice; the details
would presumably have emerged during the investigative interview, had Atwell
attended it. That she refused to do so does not alter the fact that the Park District
provided her with a meaningful opportunity to speak in her own defense before any
public statement was made.

In our view, the Constitution did not require the Park District to craft its post-
termination comments along the precise contours of its initial notice to Atwell. Atwell

has cited no legal authority for the opposite conclusion. Accordingly, we conclude that

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DISCUSSION

The Park District contends that Atwell’s amended complaint fails to cure the
deficiencies in Counts I and II of the original pleading. It further argues that the new
Count III, an equal protection claim, cannot survive a motion to dismiss, and that the
state law claim for retaliatory discharge cannot independently support the filing of an
amended complaint. For the reasons that follow, we agree.
I. Privilege against self incrimination

As discussed above, the Court dismissed Atwell’s Fifth Amendment claim with
prejudice because the allegations in the original complaint established that Atwell had
failed to properly assert her right to remain silent. Her blanket assertion of that right
prior to questioning did not trigger the Park District’s duty to inform her of her Garrity
immunity, and thus her termination did not violate the Fifth Amendment. The
amended complaint does not cure this deficiency. Indeed, Atwell concedes in her reply
brief “that she exercised her Fifth Amendment right before her communications with
Defendant reached the point of specific questions.” This fact was dispositive on the
Park District’s first motion to dismiss, and it is dispositive here.

Atwell argues that we should ignore her failed invocation of the Fifth
Amendment because, she claims, the Park District and its attorneys attempted to induce

her to remain silent rather than obtaining her cooperation with the investigation. This

-6-


and all well-pleaded facts and allegations in the plaintiff's complaint must be taken
as true. Bontkowski v, First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir.
1993). The allegations of a complaint should not be dismissed for failure to state a
claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S.

41, 45-46 (1957); see also Hartford Fire Insurance Co. v. California, 509 U.S. 764

(1993); Sherwin Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7th

Cir. 1994). Nonetheless, in order to withstand a motion to dismiss, a complaint must
allege facts sufficiently setting forth the essential elements of the cause of action.
Lucien yv. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992).

In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
court is limited to the allegations contained in the pleadings themselves. Documents
incorporated by reference into the pleadings and documents attached to the pleadings
as exhibits are considered part of the pleadings for all purposes. Fed. R. Civ. P.
10(c). In addition, "[d]ocuments that a defendant attaches to a motion to dismiss are
considered a part of the pleadings if they are referred to in the plaintiff's complaint

and are central to her claim." Venture Associates Corp. v. Zenith Data Systems

Corp., 987 F.2d 429, 431 (7th Cir. 1993). It is with these principles in mind that we

turn to the motion before us.


adequate to provide Atwell with the hearing and meaningful opportunity to respond
guaranteed to her by the Fifth and Fourteenth Amendments to the Constitution. Atwell
has added several allegations to the complaint and advanced two new arguments based
upon those allegations. We consider each in turn.

Atwell first attempts to cure the deficiencies in the original complaint by
alleging that in terminating her, the Park District failed to follow the procedural steps
defined in its Personnel Policy Manual. These allegations have no bearing on our
finding that the process Atwell was provided was constitutionally adequate. The
Constitution does not require that a public employer follow the precise steps outlined
in its internal manuals before terminating an employee. It requires only that the
procedures used be “appropriate to the nature of the case.” Cleveland Board of
Education y. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487 (1985). We have
previously held that the process the Park District afforded Atwell was appropriate
under the circumstances, and that ruling is unaffected by the allegations of the
proposed amended complaint.

Atwell next contends that the Park District violated her due process rights by
releasing to the public information of which it had not previously given her notice.
(See Amended Complaint at | 52.) Atwell argues that she did not have a meaningful

opportunity to respond to this “additional information.” (See Amended Complaint at

-8-


Minura Order Form (06/97)

United States District Court, Northern District of Dlinois

Name of Assigned Judi Sitting Judge if Other
vor Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 00 C 7267 DATE 5/16/2001
CASE Atwell vs. Lisle Park District
TITLE

of the motion being presented. }

MOTION:

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

DOCKET ENTRY:

date mailed notice

(ty 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) Oo Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on setfor_ at.

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

(7) Oo Trial{set for/re-set for] on at

(8) o {Bench/Jury trial} [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QFRCP4(m) OGeneral Rule21 CIFRCP41(a)(1) OO FRCP41(a)(2).

(0) =x [Other docket entry) ENTER MEMORANDUM OPINION: The motion (Doc 16-1) for leave
to file an amended complaint is denied. The motion (Doc 19-1) to dismiss is denied as moot. Ruling set
for June 7, 2001 is stricken.

dl) of [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required. umber of watices
Notices mailed by judge’s staff. M aN 4 el ¥
Notified counsel by telephone. date docketed
v Docketing to mail notices. d
Mil AO 450 form ® YA a)
Copy ‘o jusep magistrate j dge. WILDER PON SSORET!

courtroom Ol Hay }6 Pi Ye
deputy’s

initials

l2

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Date/time received in
central Clerk's Office

nailing deputy initials



government actions that implicate fundamental rights. As we have explained at length
in this and our earlier opinions, Atwell did not properly exercise her Fifth Amendment
right to remain silent in response to specific questions. Instead, she simply refused to
participate in the Park District’s investigation of the charges against her. This behavior
was not legally protected, and the Park District’s reaction to it need only have some
rational basis in order to be constitutional. See Turner v. Glickman, 207 F.3d 419, 424
(7th Cir. 2000).

In applying the rational basis standard, we presume that the Park District’s

actions were constitutional. Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th

Cir.1992). Atwell’s termination “must be upheld against equal protection challenge
if there is any reasonably conceivable state of facts that could provide a rational basis
for the [decision].” City of Chicago v. Shalala, 189 F.3d 598, 606 (7th Cir. 1999). The
exhibits to the amended complaint supply such a rational basis. In its letter of
termination, the Park District informed Atwell that aside from the salary questions she
was being terminated because her “failure and refusal to cooperate fully and truthfully
with the Park District’s internal investigation constitutes insubordination and failure
to comply with a Park Board directive, and conduct contrary to the best interest of the

Park District.” (Amended Complaint at Exh. I.) None of the “similarly situated”

-ll-


the amended complaint fails to cure the deficiencies of the original complaint with
respect to Atwell’s Due Process Clause claim, and we deny the motion for leave to file
an amended complaint with respect to Count IT.
III. Equal protection

The amended complaint includes a new claim for violation of Atwell’s rights
under the Equal Protection Clause. Atwell alleges that she was terminated for
receiving a salary in excess of the amount budgeted for her position, and that other
Park District employees who received over-budget salaries or bonuses were not
terminated. (See Amended Complaint {J 64-70.) She claims that she was treated
differently than these other employees because she “chose to exercise a fundamental
right guaranteed to her by the United States Constitution,” namely the privilege against
self-incrimination. (See Amended Complaint { 72 and 74.) Atwell contends that this
difference in treatment constitutes a violation of her constitutional right to equal
protection of the laws.

In evaluating Atwell’s equal protection claim, we conduct only a rational basis
review of the Park District’s actions. Atwell has not claimed that she was
discriminated against on the basis of her membership in a traditionally protected class.

See, e.g., New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474,

1481-82 (7th Cir. 1990). Nor is she entitled to the strict scrutiny we apply to

-10-


argument was advanced in Atwell’s opposition to the Park District’s first motion to
dismiss, and we rejected it. Any comment by the Park District to the effect that Atwell
might be advised to remain silent does not somehow trigger its duty to advise her of
her Garrity immunity; only a proper invocation of the Fifth Amendment in response
to specific questions could do that. See Gulden v. McCorkle, 680 F.2d 1070 (Sth Cir.
1982). That Atwell may have been willing to participate, on her own terms, in the
investigation is also unavailing. Atwell’s initial willingness to “cooperate” cannot
overshadow the fact that she did not cooperate but instead refused to be interviewed
by the Park District’s investigator.

The allegations and exhibits Atwell has added to Count I of the amended
complaint are therefore immaterial; the complaint still fails to state a Fifth Amendment
claim. Accordingly, we find that the proposed amended Count I suffers from the
deficiencies of the original and deny Atwell’s motion for leave to file an amended
complaint as to Count I.

II. Procedural due process

Atwell’s Due Process Clause claim, like her Fifth Amendment claim, was
dismissed with prejudice on the Park District’s first motion to dismiss. We found that
the pre-termination investigation in which Atwell refused to participate, in conjunction
with the post-deprivation appeal Atwell took in response to her termination, were

-7-


duty does not arise until the employee properly asserts her Fifth Amendment right to
remain silent in response to specific questions. We found that Atwell’s refusal to
appear at the interview with the Park District’s investigator was an improper blanket
assertion of the privilege which, consequently, did not trigger the Park District’s duty
to inform her of her Garrity immunity. As a result, we dismissed Atwell’s Fifth
Amendment claim with prejudice.

We also held that the Park District had not deprived Atwell of her liberty
interest in pursuing her profession without due process of law. Atwell had alleged that
the Park District publicly made false statements about her alleged financial
improprieties and that the statements made it almost impossible for her to continue to
pursue her chosen occupation. We found that the Park District’s pre-termination
internal investigation and post-termination appeal procedure offered Atwell notice and
a meaningful opportunity to be heard in defense of her actions. We therefore dismissed
Atwell’s procedural due process claim with prejudice, and relinquished supplemental
jurisdiction over her remaining state law claim for retaliatory discharge.

Atwell has moved for leave to file an amended complaint. The Park District has
opposed the motion, arguing that the proposed amendments would be futile. It has also
filed an alternative Rule 12(b)(6) motion to dismiss in the event that leave to file the

amended complaint is granted.


2000, the Park District initiated an internal investigation of allegations that Atwell had
misused Park District funds and concealed her conduct from the Board of Park
Commissioners (the “Board”). The Board suspended Atwell with pay pending the
results of the investigation and instructed her to cooperate fully with the attorney it had
hired to conduct the investigation. Atwell then learned that the DuPage County State’s
Attorney’s Office had convened a grand jury to investigate the allegations against her.

On the advice of her attorney, Atwell refused to participate in an interview with
the Park District’s investigator, purportedly invoking her constitutional privilege
against self-incrimination. The Park District terminated her, citing two reasons:
Atwell’s “failure and refusal to cooperate fully and truthfully with the Park District’s
internal investigation” and her “knowing or negligent” receipt of salary payments in
excess of the budgeted amount. Atwell appealed the decision in a four-page letter to
the President of the Board, but her appeal was denied.

On November 17, 2000, Atwell filed suit against the Park District, alleging
violations of her Fifth and Fourteenth Amendment rights and state law retaliatory
discharge. We dismissed the complaint on the Park District’s motion. We first found
that the Park District had no duty to inform Atwell, prior to terminating her, that any
statements she made to the investigator could not be used against her in future criminal

proceedings. See Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967). Sucha

-2-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SARAH E. ATWELL, )
)
Plaintiff, )
)
vs. ) 00 C 7267
)
LISLE PARK DISTRICT, ) op,
) Y, Con,
Defendant. ) Ye ? OP,
22, &
MEMORANDUM OPINION 4

CHARLES P. KOCORAS, District Judge:

This matter is before the Court on Plaintiff Sarah Atwell’s contested motion for
leave to file an amended complaint and Defendant Lisle Park District’s alternative
motion to dismiss the amended complaint. For the reasons set forth below, the motion
for leave to file an amended complaint is denied and the motion to dismiss is denied
as moot.

BACKGROUND

The facts of this case, which are set forth in more detail in this Court’s March
7, 2001, Memorandum Opinion granting Defendant’s first motion to dismiss, can be
summarized as follows. In early 1999, Plaintiff Sarah Atwell was hired by Defendant At

Lisle Park District (the “Park District”) as its Director of Development. On April 27,


employees Atwell has identified was ordered, and refused, to cooperate in an internal
investigation of his or her conduct.

The investigation of alleged financial improprieties by a Director of
Development is unquestionably a legitimate governmental purpose. The termination
of an employee who deliberately impedes such an investigation is rationally related to
that purpose. These facts in combination supply a rational basis for the Park District’s
allegedly disparate treatment of Atwell and her co-workers who received over-budget
salaries. Accordingly, Atwell cannot demonstrate that there is no reasonably
conceivable state of facts that could provide a rational basis for the Park District’s
decision to terminate her. Her equal protection claim would therefore not survive a
motion to dismiss, and we deny the motion for leave to file an amended complaint as
to Count III.

IV. Retaliatory Discharge

Atwell’s sole remaining claim alleges state law retaliatory discharge. In the
absence of any viable federal claims, this claim alone cannot justify the filing of the
amended complaint and the continued exercise of federal jurisdiction. We therefore
deny the motion to file an amended complaint with respect to Count IV without

addressing the merits the retaliatory discharge claim.

-12-