evaluation process that allowed teachers and the public an
opportunity to comment. With respect to the kindergarten program,
Ms. Lifton alleges that she expressed concern to Mr. Meuer and
others that the kindergarten classes were too large, the class
period was too long, the program was not in conformance with state
standards, and that it was not properly funded. She also alleges
that she developed and presented to parents and the local school
council a new kindergarten plan that would better meet the needs of
students and conform to state standards, and that she sent--with
the permission of the chairman of the local school council--a
notice to parents regarding a local school council meeting to
discuss the program.

Ms. Lifton’s speech addresses matters of public concern. Klug
v. Chicago Sch. Reform Bd. of Trs., 197 F.3d 853, 858 (7th Cir.
1999) (“[E]ducational improvement and fiscal responsibility in
public schools clearly are matters of public concern.”). Nor is
this a case where, although the speech concerns a public matter, it
discusses only the personal effect on the employer. See id.
(holding that the public concern element is lacking where the
speaker is discussing a matter of public interest but is acting
more as a disgruntled employee devoted to petty office politics
than as a citizen); Khuans v. Sch. Dist. 110, 123 F.3d 1010, 1017
(7th Cir. 1997) (holding that plaintiff's complaints, which

included issues about compliance with state special education



Count VI: Intentional Infliction of Emotional Distress

Mr. Meuer argues that Ms. Lifton’s intentional infliction of
emotional distress count fails to state a claim. The elements of
intentional infliction of emotional distress are (1) extreme and
outrageous conduct by defendant, (2) intent to inflict or knowledge
of a high degree of probability that the conduct would cause severe
emotional distress, and (3) severe emotional distress in fact. Doe
v. Calumet City, 641 N.E.2d 498, 506 (Ill. 1994). However, under
federal notice pleading standards, which apply even when deciding
state law claims, see Beanstalk Group, Inc. v. AM General Corp.,
283 F.3d 856, 863 (7th Cir. 2002), Ms. Lifton need not spell out
every element of her claim to survive a motion to dismiss. Scott
v. City of Chicago, 195 F.3d 950, 951-52 (7th Cir. 1999). Her
pleading need only contain enough information to allow defendants
to understand the “gravamen” of her complaint. Id. Here, Ms.
Lifton alleges that she was subjected to a campaign of harassment
by Mr. Meuer, that he intended or knew with a high probability that
his conduct would cause extreme emotional distress, and that his
conduct did indeed cause extreme emotional distress such that she
had to undergo medical treatment for stress. This is sufficient to
state a claim for intentional infliction of emotional distress.
While Ms. Lifton does not specifically allege that Mr. Meuer’s
conduct was extreme and outrageous, such is not required at the

pleading stage. See Jimenez v. Thompson Steel Co., 264 F. Supp. 2d



due process claim. The elements of a procedural due process claim
are deprivation of a protected interest and deprivation of that
interest without due process. Omosegbon v. Wells, 335 F.3d 668,
674 (7th Cir. 2003) (citing Morrissey v. Brewer, 408 U.S. 471, 481
(1972)). A tenured teacher in Illinois has a protected property
interest in her job. Townsend v. Vallas, 256 F.3d 661, 673 (7th
Cir. 2001). Ms. Lifton alleges that she was constructively
discharged from her position. Constructive discharge can
constitute deprivation of a protected interest. Parrett v. City of
Connersville, 737 F.2d 690, 694 (7th Cir. 1984). Further, Ms.
Lifton’s complaint sufficiently alleges deprivation of this
interest without due process. The only process Ms. Lifton claims
she received during this period she alleges was a sham. Such
allegations sufficiently state a deprivation of a protected
interest without due process, and therefore support a procedural
due process claim.
Count IV: Substantive Due Process

Count IV of Ms. Lifton’s complaint alleges that she had a
liberty interest in her reputation as a teacher and her ability to
be employed on the basis of that reputation, and that the
defendants infringed on that liberty interest by making false and
damaging statements against her. The liberty interest in her good
reputation is not a “fundamental” right or liberty interest

protected under the theory of substantive due process. See



requirements, were not protected speech because they were
essentially an airing of grievances about her supervisor). Ms.
Lifton alleges that her concerns and ideas about the kindergarten
program were addressed not just to Mr. Meuer, but publicly to
parents and the community as well. This indicates that her speech
regarding the kindergarten program was truly a protected matter of
public concern, not simply an unprotected complaint about her
employment. See Wales v. Bd. of Educ. of Cmty. Unit Sch. Dist
300, 120 F.3d 82, 84 (7th Cir. 1997) (noting relevance of whether
teacher issued a public call for change or simply complained up the
chain of command). Ms. Lifton has therefore sufficiently alleged
that the speech in which she engaged and for which she allegedly
faced retaliation was constitutionally protected.’ Mr. Meuer is
not entitled to qualified immunity on this claim at this stage.
Count III: Procedural Due Process

Mr. Meuer argues that Ms. Lifton fails to state a procedural

1 Mr. Meuer argues that even if Ms. Lifton’s speech addressed

matters of public concern, it fails to satisfy the Pickering
balancing test, which seeks “a balance between the interests of the
employee, as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of public service.” Delgado, 282 F.3d at 517
(quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). The
Pickering inquiry can seldom be done on the basis of pleadings
alone, however, id., and Mr. Meuer’s unsupported assertion that
“[Ms. Lifton’s] public commentary of the inadequacy of the
kindergarten program in which she taught would impede her ability
to teach the class as well as create problems with the remaining
staff in the school,” (Def.’s Mem. Support Mot. Dismiss at 13), is
insufficient to find at this stage that the balance weighs against
her.


statements reasonably related to those duties.” Cameli v. O’Neal,
No. 95 C 1369, 1995 WL 398893, at *1 (N.D. Ill. July 2, 1995)
(Moran, J.) (citing Geick v. Kay, 603 N.E.2d 121 (Ill. App. Ct.
1992)). While Ms. Lifton does not specifically allege that Mr.
Meuer was acting outside the scope of his official duties when he
made the allegedly defamatory statements (assuming that outside the
scope of his official duties means something different from not
acting within his discretion or in determining policy, which, as
noted above, she does specifically allege), it is impossible to
determine from the pleadings whether he was or not. Consequently,
Mr. Meuer is not entitled to common law immunity at this stage.
See Marchioni v. Bd. of Educ. of Chicago, No. 03 C 0104, 2003 WL
21418238, at *3 (N.D. Ill. June 18, 2003) (Gettleman, J.) (finding
that dismissal on common law immunity grounds would be premature
because court could not determine whether the allegedly defamatory
comments were made within the scope of defendant’s official

duties) .?

2 While the court in Cameli dismissed, on common law immunity
grounds, a defamation claim against a principal at the pleading
stage, I distinguish Cameli, like the court in Marchioni, on the
ground that “the context of the allegedly defamatory remarks in the
instant case is less clear” than the context alleged in Cameli.
2003 WL 21418238 at *2. Cameli involved a complaint alleging that
a high school principal had made comments while speaking to the
media about a basketball coach’s termination, which the court held
was part of the principal’s official duties. 1995 WL 398893 at *2.
Here, Ms. Lifton does not allege the context in which the allegedly
false and damaging statements were made.

8


= Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Elaine E, Bucklo than Assigned Judge
CASE NUMBER 03 C 743 DATE 11/7/2003
CASE Lifton vs, City of Chicago, et al.
TITLE
[ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd Q Filed motion of [ use listing in “Motion” box above.]
(2) im] Brief in support of motion due
@G) o Answer brief to motion due . Reply to answer brief due.
(4) im} Ruling/Hearing on set for at
(5) Q Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference{held/continued to] [set for/re-set for] on set for at
”) im Trialfset 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]
OOFRCP4(m) COlLocal Rule 41.1 CIFRCP41(a\(1) (I) FRCP41(a)(2).
ao iw [Other docket entry} Enter Memorandum Opinion and Order denying defendant, Mr. Meuer’s
motion to dismiss the amended complaint and strike plaintiff's request for damages (30-1). Plaintiff's
agreed motion for extension of time until 12/8/03 to complete discovery and for clarification of due date
for dispositive motion is granted. Any dispositive motion shall be filed by 1/9/04.
dl) [For further detail see order attached to the original minute order.]
No notices required, advised in open court. - | Document. J
. ? Number 2° 5
No notices required. umber of notices Protea ee |
vo | Notices mailed by judge’s staff.
i NOV 1.0 2003
Notified counsel by telephone, daie docketed
Docketing to mail notices.
Mail AO 450 form.
Copy to judge/magistrate judge.
courtroom
MPy deputy’s
initials
Date/time received in
central Clerk’s Office



states that “no public official is liable to pay punitive or
exemplary damages in any action arising out of an act or omission
made by the public official while serving in an official executive,
legislative, quasi-legislative or quasi-judicial capacity, brought
directly or indirectly against him by the injured party.” As with
Mr. Meuer’s claimed immunity from liability for the state law
counts, it is simply too early to determine whether he was serving
in an official capacity while engaging in the alleged conduct. Ms.
Lifton’s claim for punitive damages stands for now.
Conclusion

Defendant Mr. Meuer’s motion to dismiss is Deniep. Defendant

Mr. Meuer’s motion to strike plaintiff’s request for punitive

damages is DENIED.

ENTER ORDER:

Lhe 0 Buhl.

Elaine E. Bucklo
United States District Judge

Dated: November ] , 2003

11


693, 696 (N.D. Ill. 2003) (Bucklo, J.) (“Without knowing the
details of the harassment (which [plaintiff] is not required to
plead), I am left with the possibility that the conduct alleged was
extreme and outrageous.”). Mr. Meuer also argues again that he is
entitled to immunity for actions taken in the scope of his official
duties. As with Mr. Meuer’s claim of immunity from Ms. Lifton’s
defamation claim, it is simply too early to determine whether the
conduct that allegedly caused Ms. Lifton extreme emotional distress
was within the scope of Mr. Meuer’s official duties.
Punitive Damages

Finally, Mr. Meuer moves to strike Ms. Lifton’s claim for
punitive damages. In arguing that he is not liable for punitive
damages, Mr. Meuer cites two sources. First, he cites City of
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), which held
that a municipality is immune from punitive damages in section 1983
suits. That case did not hold, however, that individuals are
immune from punitive damages in section 1983 suits. To the
contrary, the Court noted that section 1983 permits punitive
damages against individual defendants in appropriate circumstances.

Id. at 269.3 Second, Mr. Meuer cites 745 ILCS 10/2-102, which

3 The Court later described its holding as follows:
In [City of Newport] we held that a municipality (as opposed
to an individual defendant) is immune from liability for
punitive damages under § 1983. A significant part of our
reasoning was that deterrence of constitutional violations
would be adequately accomplished by allowing punitive damage
awards directly against the responsible individuals.
Smith v. Wade, 461 U.S. 30, 36 n.5 (1983).

10


Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). Only when
the harm to reputation is “such as to have ‘foreclose[d] his
freedom to take advantage of other employment opportunities’” does
a plaintiff state a claim for violation of substantive due process.
Oliveri v. Rodriguez, 122 F.3d 406, 408 (7 Cir. 1997). That is
what Ms. Lifton alleges here. She therefore states a claim.
Count V: Defamation

Mr. Meuer argues that he is entitled to statutory and common
law immunity from Ms. Lifton’s defamation claim. Statutory
immunity for public officials arises out of 745 ILCS 10/2-201,
which states that “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.” Here, Ms. Lifton’s allegations of defamation
are not exceedingly detailed. She simply states that Mr. Meuer
reported to parents numerous damaging and false statements. As she
alleges that such statements were not made while Mr. Meuer was
acting within his discretionary authority or determining policy,
however, she defeats Mr. Meuer’s statutory immunity defense at the
pleading stage.

Common law immunity holds that “an official of the executive
branch of local government cannot be held liable for statements

made within the scope of his official duties, which means


457 U.S. 800, 818 (1982)). To overcome assertion of a qualified
immunity defense, a plaintiff must allege the deprivation of an
actual constitutional right that was clearly established at the
time of the alleged violation. Id. In the context of a complaint
by a government employee alleging retaliation for exercising her
free speech rights, this means that the facts alleged in the
complaint must show that the speech in which the plaintiff engaged
was constitutionally protected under the circumstances and that the
defendants retaliated against her because of it. Delgado v. Jones,
282 F.3d 511, 516 (7th Cir. 2002).

Mr. Meuer does not argue that Ms. Lifton was not retaliated
against because of her speech. Thus, the only issue here is
whether her speech was constitutionally protected under the
circumstances. A government employee’s speech warrants First
Amendment protection if it “addresses a matter of public concern.”
Id. (quoting Connick v. Myers, 461 U.S. 138, 147 (1982)). To
determine whether speech addresses a matter of public concern, I
look to the content, form, and context of the speech, with content
being the most important consideration. Id. at 516-17. As noted
above, Ms. Lifton spoke out regarding two issues: Mr. Meuer’s
request for early renewal of his contract, and the kindergarten
program. With respect to Mr. Meuer’s contract, Ms. Lifton does not
allege the form or context of her speech, alleging only that she

objected to his request because it circumvented the recommended



teacher. The Board adopted this recommendation. Ms. Lifton
alleges that the hearing was a sham, and that she was disciplined
in retaliation for expressing her opinions about Mr. Meuer’s
contract and the kindergarten program. She further alleges that
the harassment and retaliation she endured became so intolerable
that she was constructively discharged. Count I alleges a
violation of Ms. Lifton’s First Amendment rights by Mr. Duncan and
Mr. Meuer, Count II alleges a violation of her First Amendment
rights by the Board, Count III alleges a violation of her
procedural due process rights by all defendants, Count IV alleges
a violation of her substantive due process rights by all
defendants, Count V alleges defamation by all defendants, and Count
VI alleges intentional infliction of emotional distress by all
defendants. Mr. Meuer moves to dismiss all counts against him. I
deny the motion. Additionally, Mr. Meuer moves to strike Ms.
Lifton’s claim for punitive damages, which I deny.
Count I: First Amendment

Mr. Meuer argues that he is entitled to qualified immunity
from Ms. Lifton’s First Amendment claim. Qualified immunity
protects government officials from civil liability when performing
discretionary functions so long as the officials’ conduct “does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Alvarado v. Litscher,

267 F.3d 648, 652 (7th Cir. 2001) (quoting Harlow v. Fitzgerald,



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

KATHLEEN LIFTON,

Plaintiff,

Vv.
No. 03 C 743

DOCKETED

NOV 1 0 2003

THE BOARD OF EDUCATION OF THE CITY
OF CHICAGO, ARNE DUNCAN, and WILLIAM
MEUER,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Kathleen Lifton, a former kindergarten teacher at
Norwood Park School, filed a six-count amended complaint against
defendants Board of Education of the City of Chicago (“Board”)
Arne Duncan, Chief Executive Officer of the Board, and William
Meuer, principal of the school where Ms. Lifton worked. Ms.
Lifton’s complaint asserted federal constitutional claims under 42
U.S.C. § 1983 and state common law claims. Ms. Lifton alleges that
in the spring and summer of 2002, she expressed various opinions
about school issues, which included objecting to Mr. Meuer’s
request for early renewal of his principal’s contract and
criticizing the current kindergarten program. She alleges that as
a result of her conduct, Mr. Meuer wrongfully charged her with
violations of the employee discipline code. A pre~disciplinary
hearing was held, after which Mr. Duncan recommended that Ms.

Lifton be issued a warning resolution for conduct unbecoming a

5