the work the staff accomplishes to contribute to the success of the center.” Plaintiff forwarded
Petusky’s response to other managers, explaining to a co-worker that:

T think it’s important that they are made aware that my effort to at least gain some

acknowledgement [sic] of the sales managers for a job well done in a diffuclt [sic]

year is seen as a self-congratulatory activity. Very nice. IfTcan opt out of the

Team fund, consider me out. T will no longer include it in my pricing. Like a lot

of things, it’s another joke.

On June 27, 2002, plaintiff expanded on her statement in another e-mail:

Everytime [sic] T have read my statement ... about it may be appropriate to mention

who gets the funds ... I just have to wonder at the entire organizations’ [sic]

inability to say THANK YOU to us....Many times people just want to be

recognized for their contributions. If you follow the thread, I think I’m ASKING.

someone to say thank you. What I got what [sic] a diatribe on self-congratulatory

behavior. If that’s how ML (Emami] and JA [Abel] are going to show appreciation

to those who make the Team fund happen, I don’t want to play the game.

Also on June 27, 2002, plaintiff asked Sue Benton, in the Human Resources Department,
whether plaintiff was required to contribute to the team fund, explaining that she no longer wished
to do so. Benton responded that she was unfamiliar with the team fund. According to plaintiff,
she explained to Benton that the team fund was funded with $10 from each class sold. According
to Benton, plaintiff told her that the team fund was funded through deductions from plaintiff's and
other account managers’ compensation. Benton responded that the team fund was not sanctioned
by the College.

On Junc 28, 2002, plaintiff wrote a memorandum to Emami, which was copied to Abel,
stating that she would no longer contribute to the team fund. Plaintiff explained in the
memorandum that she had

professional and ethical problems with the arrangement and usage of this fund. It

is not a college-approved fund, as we have been fed to believe, nor are
contributions ‘mandatory’. There is poor accountability, if any. On several


discipline procedure by issuing their written warming to plaintiff only eleven days after plaintiff
sent her memorandum opting out of the team fund. This warning was the first written reprimand
plaintiff had received during her employment with the College, even though plaintiff had had an
ongoing problem with communicating positively with staff members. Although defendants may
have had numerous valid reasons to discipline and terminate plaintiff, the court cannot conclude
that, as a matter of law, defendants would have terminated plaintiff's employment even in the
absence of her objection to the team fund.*

The court next turns to the College’s argument that it is not liable under Section 1983
because plaintiff cannot show that she was terminated by a person with final policymaking
authority. A municipal entity cannot be held vicariously liable under Section 1983 through the
doctrine of respondeat superior. Monell v. 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
authorized by express policy, authorized through a widespread practice that is so permanent and
well settled as to constituie a custom or usage with the force of law, or caused by a person with
final policymaking authority. See McCormick v. City of Chicago, 230 F.3d 319, 324 (7" Cir,
2000).

Plaintiff argues that the College is liable for Emami’s and Abel’s decision to terminate her
because it delegatcd final policymaking authority to them. Plaintiff does not dispute that under
Illinois law, a community college’s board has the sole, non-delegable power to establish policies

goveming the employment and dismissal of community college personnel. See 110 ILCS 805/3-

3 Defendants do not argue that their interest in efficiently providing government services
outweighs the plaintiff's First Amendment interests.

9



a client meeting.

On January 31, 2003, Emami suspended plaintiff with pay pending a review of Emami’s
recommendation for plaintiff's dismissal by the College’s Vice President for Academic Affairs.
Plaintiff was terminated on March 6, 2003.

II. Discussion

Summary judgment shall be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with [any] affidavits, show that there is no
genuine issue as to any material fact and that (he moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The court must draw all reasonable inferences in favor of
the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The
moving party bears the initial burden of demonstrating that no material issue exists for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has properly
supported its motion, the nonmoving party must offer specific facts demonstrating that a material
dispute exists, and must present more than a scintilla of evidence to support its position.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

To prevail on a First Amendment retaliation claim in an employment context, a plaintiff
must prove that her speech was a matter of public concern, and that her speech played at least a
substantial part in the employer’s decision to take an adverse employment action against her.
Gustafson v. Jones, 290 F.3d 895, 906 (7" Cir. 2002). If the plaintiff meets her burden on those
two elements, the employer may neverthcless prevail if it proves, by a preponderance of the
evidence, that its interest in efficiently providing government serviccs outweighs the plaintiff's

First Amendment interests, or if it proves that it would have taken the action even in the absence



occasions, the amount of my contribution designated on my pricing sheets has been

changed (increased) without my approval. This is not a professional activity in

which I willingly choosc to participate.

Plaintiff later testified that her professional and ethical objections to the team fund were based on
her belief that the money contributed to the team fund was taken out of profits that otherwise
would have gone to the College. In July 2002, the account managers voted to end the team fund.

On July 9, 2002, Abel and Emami issued a warning memorandum to plaintiff, indicating
that members of the support staff had complained about plaintiff's negative remarks to them, and
directing plaintiff to stop this “abusive behavior.” The memorandum also observed that plaintiff
had failed to come into the office for several days beginning June 27, 2002, which caused.
problems regarding final grant reports. The memorandum directed plaintiff to be present in the
CCT office when not on sales calls or performing contract-related duties, This memorandum was
the first written warning plaintiff had reccived during her employment with the CCT.

According to defendants, plaintiff's problems continued, and on December 2, 2002,
Emami and Abel issued a second warning memorandum to plaintiff. This memorandum directed
plaintiff to immediately cease “disruptive behavior,” to be present in the office during regular
business hours for a minimum of 35% of the time and any other time she was not on a client call,
to demonstrate a cooperative team attitude, to attend mectings unless prior arrangements were
made with the Center Manager, and to provide accurate information on all training paperwork.

According to defendants, in the following two months, plaintiff continued to provide
inaccurate information on her paperwork, In addition, defendants claim that plaintiff provided the
home telephone number of one of CCT’s instructors to another training company without the

instructor’s permission. Finally, defendants claim that plaintiff attempted to exclude Emami from


of the team fund — had deteriorated. Defendants point to the e-mail exchange among plaintiff and
other account managers on June 26 and 27, 2002 as evidence that plaintiff’s objections to the team
fund sprang from her fecling that the support staff did not adequately appreciate her efforts, rather
than some public-minded motive, Finally, dcfendants arguc that, contrary to plaintiffs statement
in her June 28, 2002 memorandum, the team fund was legal and proper.

Exposing the misuse of public funds may be a matter of public concern, See Breuery,
Hart, 909 F.2d 1035, 1039 (7" Cir. 1990) (allegations that sheriff stole county property and
allowed employee to fraudulently accept compensation were matters of public concern). Plaintiff
may well have had a personal interest in striking back against the support staff at a time when her
relationship with the support staff was strained, and when plaintiff felt that her efforts that
contributed to the team fund were insufficiently appreciated. However, “the fact that an employee
speaks at least in part for personal reasons will not automatically deprive her statements of the
protections afforded to speech on a matter of public concern.” See Cliff v, Board of Sch.
Comm'rs, 42 F.3d 403, 410 (7" Cir. 1994). The court concludes that plaintiff has offered enough
evidence to survive summary judgment on the issue of whether her statement was a matter of
public concern?

Morcover, a reasonable jury could conclude that plaintiff's speech played at least a

substantial part in defendants’ decision to terminate her. Defendants initiated their progressive

2 The court need not decide at this time whether the team fund actually was a legal and
proper use of College funds. There is at least some evidence that plaintiff reasonably believed
that the team fund was not legitimate when she wrote her memorandum, and thus there would be
an issue of fact even if the court concluded that the team fund was in fact legitimate. Cf. Brenner
vy, Brown, 36 F.3d 18, 20 (7" Cir. 1994) (speech made with reckless disregard for the truth does
not receive First Amendment protection).


‘Minute Order Porm (06/97)

United States District Court, Northern District of Hlinois

ame of Assigned Judge A
Nar Magatate tude George W. Lindberg “than Aanigned Judge
CASE NUMBER 03 C 4358 DATE 2/18/2004
CASE Christina Carpanzano vs. College of DuPage
TITLE

[In the following box (a) indicate the party fiting the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, und (b) stale briefly the nature

of the motion being presented. ]

(il)

MOTION:

DOCKET ENTRY;

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) ob Answer brief to motion duc___, Reply to answer brief due__

(a) o Ruling/Hearingon __setfor___—_at

(3) a Status hearing[held/continued to] [set for/re-set for]on___—ssetfor at

(6) o Pretrial conference[held/continued to] {set for/re-set for]on___—s set for att.

(7) ao Trial[set for/re-set for]on at

(8) oO [Bench/Jury trial] [Hearing] held/contined to at

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
DFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2).

ao) «off [Other docket entry] © Defendants’ motion for summary judgment (26-1) is granted in part and

denied in part. Judgment is entered in favor of defendant College of DuPage and against p

Count T of the amended complaint. The motion for summary judgment is denied as to Count | against
defendants Mary Lou Emami and Joyce Abel, and denied as to Counts II and IT, Enter memorandum

opinion and order.

a [For further detail see order attached to the original minute order. ]

laintiff as to

No notices required, advised in open court.

No notices required. waiter of motives

Document
Number

Notices faxed by judge’s staff.

EB 18 2004

date ducketed

Eas

Notitied counsel by telephone.

Docketing to mail notices.
Mail AQ 450 form. . docketipg deputy a

initials

Copy to judge/magistrate judge. -

date faxed noticed
courtroom 2/18/04
SLB deputy’s
initials
Date/time received in faxing Deputy initial
central Clerk's Office SLB



only evidence plaintiff offers in support of her contention that Emami and Abel set policy is
Abel’s ambiguous testimony, in response to a question as to whether she had a policy and
procedures manual in her department, that “[w]e were trying to develop a process. We called it
procedures, but it was really process of what gocs on.” In the same segment of her deposition,
however, Abel testified that “[p]olicies are established by the Board of Trustees” and that she
herself does not make any policy or procedure. Moreover, unlike in Kujawski, in this case there is
no evidence that the Board had a policy of not intervening in Emami’s and Abel’s personnel
decisions. Cf. Kujawski, 183 F.3d at 739. The court concludes that plaintiff has failed to show
that Emami and Abel were delegated final policymaking authority.

Plaintiff contends in the altemative that the College is liable for Emami’s and Abcl’s
decision to terminate her because an authorized policymaker ratified their decision. On February
3, 2003, Abel recommended to Christopher Picard, the College’s Vice President of Academic
Affairs, that plaintiff be terminated. Picard advised plaintiff that he concurred with Abel’s
recommendation. Plaintiff appealed the decision to the Classified/Administrative Board of
Appeals, which reviewed the evidence and found no basis for rescinding plaintiff's termination.
On May 5, 2003, Michael Murphy, the College’s President, advised plaintiff that he had reviewed
the action of the Classified/Administrative Board of Appeals, and affirmed it,

A municipality may be liable under Section 1983 if a person or body with final
policymaking authority approves a subordinate’s decision and the basis for it. City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988). Plaintiff contends that Murphy was a final policymaker by
virtue of his “broad discretionary powers,” as described in the College’s Employee Handbook.

Plaintiff argues that Murphy ratified Emami’s and Abel’s actions, subjecting the College to

Il



42; Morgan v. Board of Trustees, No. 98 C 1095, 1999 WL 160369, at *6 (N.D. Ill. Mar. 9, 1999).
Instead, plaintiff argues that the College’s Board gave Emami and Abel extensive, unreviewed
control over the CCT cmployces, resulting in a de facto delegation of final policymaking
authority.

Tn Kujawski y. Board of Comm'rs, 183 F.3d 734, 735 (7" Cir. 1999), the Seventh Circuit

reviewed the district court’s dismissal of a federal claim against a county board of commissioners,
that alleged thal (he county corrections departments chief probation officer had terminated a
corrections officer in retaliation for the officer’s exercise of his First Amendment rights. The
defendants had argued that the Board could not have delegated policymaking authority to the chief
probation officer becausc state law provided that policymaking authority over corrections could
only be expressly delegated, and it did not make any express delegation. Id, al 739 n.4. The
Seventh Circuit observed that a state statute is not necessarily determinative of a delegation issuc.
Id. Rather, courts “must take into account both state positive law and state custom that has the
force of law.” Id. Otherwise, a municipality could “avoid its constitutional responsibilities by
delegating, in violation of statc law, its responsibilities.” Id. Since the plaintiff had provided
evidence that the chief probation officer set employment policies for the corrections department,
and that the Board never reviewed his decisions as a matter of policy, the court concluded that an
issue of fact existed as to whether the Board had delegated its authority to the chief probation
officer. Id. at 739-40.

Here, there is no evidence that Emami and Abel set policy for hiring and firing employees.
Plaintiff has submitted evidence that Emami and Abel made hiring and firing decisions, but that

alone is insufficient to establish that they are policymakers. See Kujawski, 183 F.3d at 739. The

10



of the speech. Id.

Defendants first argue that plaintiff's First Amendment claim fails because her June 28,
2002 memorandum opting out of the team fund did not address a matter of public concem. To
determine whether speech addresses a matter of public concern, the court examines the “content,
form, and context” of the speech, “as revealed by the whole record.” Connick y. Myers, 461 U.S.
138, 147-48 (1983). Of these factors, content is the most important, but the speaker's motive in
making the statement is also relevant. Button y. Kibby-Brown, 146 F.3d 526, 529 (7" Cir. 1998),
Speech does not address a matter of public concern if it “concerns a subject of public interest but
the expression addresses only the personal effect upon the employee.” Id. at 529-30 (quoting
Marshall v. Porter County Plan Comm’n, 32 F.3d 1215, 1219 (7" Cir, 1994)). Thus, the court
must determine “whether the speaker is speaking ‘morc like a citizen or a disgruntled employce
whose statements are primarily of personal interest,’” Id. at 530 (quoting Colbum v. Trustees of
Ind, Univ., 973 F.2d 581, 585 (7" Cir. 1992).

Plaintiff argues that her memorandum opting out of contributing to the team fund exposed.
what she believed to be the improper diversion of funds that should have gone into the College’s
operating fund. Plaintiff registered her objection to the team fund immediately after being advised
that the fund was not sanctioned by the College. In addition, plaintiff did not, at any time, ask to
stop all forms of rewarding support staff.

Defendants argue that plaintiff objected to the team fund merely to further her own
personal interest. As defendants observe, plaintiff did not raise any objection to the team fund for
over two years, despite being aware of its existence and its uses. Instead, plaintiff only decided to

cease contributing to the team fund after her relationship with the support staff. the beneficiaries


to the staff, However, plaintiff's November 19, 2000 and May 31, 2001 written performance

reviews were positive, and do not mention any problems with tracking sheets, attendance, or her
treatment of the support staff. Although plaintiff's June 10, 2002 performance evaluation listed
“customer service issues” as a barrier to effective job performance and indicated that plaintiff and
Emami had discussed “communication with all staff involvement,” the evaluation did not indicate
that plaintiff was having problems with attendance or with completing paperwork. Plaintiff
received regular pay increases while employed at the Business and Professional Institute. Duc to
plaintiff's “excellent attendance record” from June 2000 through July 2001, and from July 2001
through July 2002, plaintiff twice qualified for ihe College’s attendance incentive of additional
vacation time.

On June 21, 2002, the support staff initiated a meeting with Emami to discuss their
continuing problems with plaintiff. The staff members reported that class instructors were
complaining to them that the instructors with having difficulties communicating with plaintiff
regarding course logistics and invoicing. The staff members also complained that plaintiff's
problems with paperwork created accounts receivable issues.

On June 26, 2002, an e-mail discussion ensucd among CCT employees regarding the team
fund, initiated by a reminder to support staff that the team fund was available for their use.
During that discussion, plaintiff wrote: “It may be appropriate to mention who generates the funds
(i.e. the Managers).” Later that day, account manager Lolly Petusky responded that “I’m sure

we’re all confident enough that there is no need to pat oursclves on the back to take credit for all

1 Although plaintiff denies defendants’ statements of fact relating to this meeting, her
denial is non-responsive.


The CCT provides training and services to employees of businesses, organizations, and

public entities. CCT account managers sel) these training services to clients. Account managers
are also responsible for completing tracking shcets on their sales, which are used by support staff
to prepare contracts.

Tn January 2000, the account managers sought to devclop a reward/incentive program to
promote teamwork and recognize the efforts of the support staff. To that end, the “team fund”
was established with the assistance of the College’s Finance Department. The team fund was
funded by adding a charge of $5.00 to $10.00 to each class sold by the CCT. The money in the
team fund was used to buy gift certificates, books, plants, and sweatshirts for {he support staff, as
well as catered lunches during staff mcetings and holidays. Plaintiff was made aware of the team
fund and its uses shortly after she started working for the CCT in May 2000.

During her employment at the CCT, plaintiff sold more contracts than any other account
manager. However, according to defendants, starting in November 2000, plaintiff often failed to
complete tracking shects on her sales in a timely manner, and many of the tracking sheets she
completed were inaccurate. In addition, during the summer of 2001, members of the support staff
complained to Emami that when they tried to obtain information from plaintiff about contracts,
plaintiff responded uncooperatively, with sarcasm and criticism. Although plaintiff conceded in
her deposition that “completing these forms was not [her] strong point,” she contends that
problems with paperwork were common to all account managers, and that her problems with the
staff were due to the staff members’ difficult personalities.

Abel and Emami met with plaintiff at various times through the first half of 2002, to

discuss plaintiff's problems with completing papcrwork, her attendance, and her problems relating


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHRISTINA CARPANZANO, )
)
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 employees of College of DuPage, ) D 0 CKE TE Hy]
) -
Defendants. ) FEB 1 8 2004

MEMORANDUM OPINION AND ORDER

Plaintiff Christina Carpanzano brought this action against defendants College of DuPage
(“College”), Mary Lou Emami (“Emami”), and Joyce Abel (“Abel”) pursuant to 42 U.S.C. §
1983, alleging a claim of retaliation in violation of plaintiff's rights under the First Amendment to
the United States Constitution (Count I), The amended complaint also alleges state law claims of
retaliatory discharge (Count I) and intentional infliction of emotional distress (Count III). Before
the court is defendants’ motion for summary judgment. For the reasons stated below, defendants’
motion is granted in part and denied in part.

1. Factual Background

Plaintiff was an account manager with defendant College’s Center for Corporate Training
(“CCT”), a unit of the College’s Business and Professional Institute, from May 23, 2000 through
March 6, 2003. Defendant Emami is the CCT’s Center Manager, and supervises the account
managers and support staff employed there. Defendant Abel is the Executive Director of the

Business and Professional Institute.

dO


Section 1983 liability.

The court disagrees. Although the Employee Handbook states that the College’s President
“js authorized to exercise broad discretionary powers established by the board,” there is no
evidence that those broad discretionary powers include final policymaking authority in
employment matters, in contravention of state law. Indeed, the Employee Handbook also states
that the President “recommends policies to the board” and “carries out those approved by the
board.” Since plaintiff has failed to establish a basis for Section 1983 liability against the College,
defendants’ motion for summary judgment is granted as to Count I of the amended complaint
against the College. The remainder of the motion is denied.

ORDERED: Defendants’ motion for summary judgment [26-1] is granted in part and
denied in part. Judgment is entered in favor of defendant College of DuPage and against plaintiff
as to Count I of the amended complaint. The motion for summary judgment is denied as to Count

lagainst defendants Mary Lou Emami and Joyce Abel, and is denied as to Counts I and LU.

ENTER:

George W. Lindberg
Senior United States District Judge

FEB 18 2004

DATED:

12