Moretto et al v. Tazewell County Sheriff's Office et al
Filing
170
MEMORANDUM OPINION AND ORDER entered by Judge Michael M. Mihm on 2/19/2019. For the reasons stated herein, Defendants' Second Amended Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. Defendants' Motion is GRANTED as to Pla intiffs' First Amendment retaliation claims based on grievance activity and as to any and all claims against Defendant Jeff Lower. Defendants' Motion is DENIED with respect to Plaintiffs' retaliation claims based on their participation in the October 7, 2010, no-confidence vote and Plaintiffs' political support of Ron Davis in the 2010 Tazewell County Sheriffs election. The Court declines to exercise supplemental jurisdiction over Plaintiff Mehrzad's pregnancy discrimina tion claim, and it is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to terminate Plaintiffs Hutton, May, Mehrzad, Strunk, and Vicary, and Defendant Lower as Parties in this matter. The Court will contact the remaining Parties to schedule the final pretrial conference and jury trial for this cause. SEE FULL WRITTEN OPINION AND ORDER. (JS, ilcd)
E-FILED
Tuesday, 19 February, 2019 03:03:40 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
MICHELLE MORETTO, AMBER
ROBERTSON, ASHLEY M. MEHRZAD,
DAWN K. HOSTETLER, MARISSA
HUTTON, LARRY VICARY,
REBECCA MELLOY, RHONDA
RANDOLPH, RICHARD JOHNSTON,
STEVE VANDUSEN, CHARLES TYSON
MAY, ALEISHA KARRICK, and TRENT,
Plaintiffs,
v.
TAZEWELL COUNTY SHERIFF’S
OFFICE, SHERIFF ROBERT HUSTON, in
his individual capacity, CHIEF DEPUTY
JEFF LOWER, in his individual capacity,
JAIL SUPERINTENDENT KURT
ULRICH, in his individual capacity,
JAIL SUPERINTENDENT EARL HELM,
in his individual capacity, DEPUTY JAIL
SUPERINTENDENT BILL ROTH, in his
individual capacity, and TAZEWELL
COUNTY, a unit of local Government,
Defendants.
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14-cv-1433-MMM
MEMORANDUM OPINION AND ORDER
This matter is now before the Court on Defendants’ Second Amended Motion for Summary
Judgment. For the reasons stated herein, Defendants’ Motion is GRANTED IN PART AND
DENIED IN PART.
Defendants’ Motion is GRANTED with regard to Plaintiffs’ First
Amendment retaliation claims based on grievance activity, and as to any and all claims against
Chief Deputy Jeff Lower. Defendants’ Motion is DENIED as to Plaintiffs’ retaliation claims based
on their participation in the October 7, 2010, no-confidence vote and Plaintiffs’ political support
of Ron Davis in the 2010 Tazewell County Sheriff’s election. The Court declines to exercise
supplemental jurisdiction over Plaintiff Mehrzad’s pregnancy discrimination claim, and it is
DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to terminate Plaintiffs
Hutton, May, Mehrzad, Strunk, and Vicary, and Defendant Lower as Parties in this matter.
BACKGROUND
Plaintiffs consist of a group of thirteen current and former correctional officers working in
the Tazewell County Jail who are employed at the Tazewell County Sheriff’s Department.
Plaintiffs allege they were systematically retaliated against for their union, political, and free
speech activity during their tenure at the Department. Plaintiffs also contend one of the officers
was discriminated against in her request for light duty because she was pregnant. The crux of
Plaintiffs’ claims revolve around two primary instances of alleged protected activity: Plaintiffs’
participation in a no-confidence vote held against Sheriff Huston; and their support of Huston’s
opponent, Ron Davis, in the 2010 Tazewell County Sheriff’s election.
On October 7, 2010, members of Fraternal Order of Police Union in Tazewell County,
Illinois, held a no-confidence vote against Sheriff Huston. The vote was held during a union
meeting with both correctional officers and sergeants comprising the union-member attendees.
Members of the union had been unhappy with the Sheriff for failing to back the officers in several
highly publicized jail incidents and wanted to communicate their dissatisfaction. Less than a
month after the release of the vote results, Sheriff Huston was up for reelection. A number of
Plaintiffs supported Ron Davis in the 2010 Sheriff’s election by attending public debates, donating
to his campaign fund, wearing pro-Davis shirts, placing election placards in their yards, and
vocalizing their support among the officers at the jail.
Due to their support of Davis in the Sheriff’s election, and because of their participation in
the no-confidence vote, Plaintiffs allege Huston and other officials in the Sheriff’s Department
2
retaliated against them in various ways, including denying their workers’ compensation claims,
failing to offer them opportunities for advancement, removing them from classification positions,
eliminating and reclassifying the sergeant position as non-union, and denying their work-related
grievances. This lawsuit followed.
PROCEDURAL HISTORY
On November 7, 2014, Plaintiffs filed their initial Complaint pursuant to 42 U.S.C. § 1983,
alleging three avenues for recovery (union association, political association, and free speech) for
First Amendment retaliation against Defendants. On March 23, 2017, Plaintiffs filed their Second
Amended Complaint, reincorporating their initial retaliation claims and adding an Illinois state law
employment discrimination claim. On March 27, 2017, Defendants filed their answer, which
included the affirmative defenses of qualified immunity and a two-year statute of limitations,
among others. Defendants filed their Second Amended Motion for Summary Judgment 1 on May
4, 2018, and on August 24, 2018, Plaintiffs filed their Response. 2 Defendants filed their Reply on
September 28, 2018. This Order follows.
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as to any material fact
exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A material fact is one that
might affect the outcome of the suit.” Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016)
(citing Anderson, 477 U.S. at 248). “To survive summary judgment, the nonmoving party must
1
2
Hereinafter referred to as “MSJ.”
Hereinafter referred to as “Resp.”
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show evidence sufficient to establish every element that is essential to its claim and for which it
will bear the burden of proof at trial.” Life Plans, Inc. v. Security Life of Denver Ins. Co., 800 F.3d
343, 349 (7th Cir. 2015). All facts and reasonable inferences are construed in the light most
favorable to the nonmoving party. Laborers’ Pension Fund v. W.R. Weis Co., Inc., 879 F.3d 760,
766 (7th Cir. 2018).
DISCUSSION
As a preliminary matter, the Court finds Plaintiffs’ participation in the October 7, 2010,
no-confidence vote against Sheriff Huston was protected speech. The Court also finds Plaintiffs’
support for Ron Davis in the 2010 Sheriff’s election was protected speech. However, as delineated
in Plaintiffs’ Second Amended Complaint (see ¶¶ 21-26), and discussed in detail below, any
grievance activity after the aforementioned events is not protected by the First Amendment and
falls outside the scope of Plaintiffs’ primary claims. For the purpose of clarity, the Court defines
First Amendment retaliation, summarizes the activity of each Plaintiff and the instances of
protected speech, and then analyzes whether the activity meets the requirements for retaliation as
defined by the courts.
To establish a First Amendment retaliation claim, a public employee must demonstrate that
(1) her speech was constitutionally protected; (2) she suffered a deprivation likely to deter free
speech; and (3) her speech was at least a motivating factor in the employer’s actions. Kidwell v.
Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012). Initially, to establish a prima facie case of
retaliation, the plaintiff must produce evidence that her speech was at least a motivating factor of
the employer’s decision to take retaliatory action against her. Kidwell, 679 F.3d at 965. Then, the
burden shifts to the employer to rebut the causal inference raised by the plaintiff’s evidence. Id.
If the employer fails to counter the plaintiff’s evidence, then the plaintiff has established the
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causation needed to succeed on her claim. Id. Whether a government employee’s speech is
protected by the First Amendment is a question of law for the court to decide. Gustafson v. Jones,
290 F.3d 895, 906 (7th Cir. 2002).
In analyzing the first requirement of a retaliation claim, courts utilize the ConnickPickering test to determine whether the employee spoke as a citizen on a matter of public concern.
Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008). Courts must first decide whether a
plaintiff was speaking as a “citizen” or as part of her public job before analyzing the subject-matter
of her speech. Mills v. City of Evansville, Indiana, 452 F.3d 646, 648 (7th Cir. 2006). In Garcetti
v. Ceballos, 547 U.S. 410, 421 (2006), the Supreme Court advised that “when public employees
make statements pursuant to their official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their communications from
employer discipline.” (emphasis in original). Therefore, courts must first decide whether a
plaintiff was speaking “as a citizen” or as part of her public job, before asking whether the subjectmatter of particular speech is a topic of public concern. Houskins, 549 F.3d at 490.
If the court determines the employee spoke as a private citizen, it must then decide whether
the employee spoke on a matter of public concern. In answering whether a statement rises to the
level of public concern, courts look to the “content, form, and context” of the statement, Kristofek
v. Village of Orland Hills, 712 F.3d 979, 984 (7th Cir. 2013) (quoting Connick v. Myers, 461 U.S.
138, 147-48 (1983)); of which “content remains the most important factor[.]” Chaklos v. Stevens,
560 F.3d 705, 714 (7th Cir. 2009). If the objective of the speech—as determined by content, form,
and context—is simply to further a purely personalized grievance, then the speech does not involve
a matter of public concern. Kristofek, 712 F.3d at 986; cf. Gustafson, 290 F.3d at 908 (“Motive
matters to the extent that even speech on a subject that would otherwise be of interest to the public
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will not be protected if the expression addresses only the personal effect upon the employee or if
the only point of the speech was to further some purely private interest.”) (internal citation
omitted). “But[,] if an objective of the speech was also to bring about change with public
ramifications extending beyond the personal, then the speech does involve a matter of public
concern.” Id.
If the court determines the employee spoke as a private citizen on a matter of public
concern, then it moves to the second part of the Connick-Pickering test: balancing the employee’s
interest “as a citizen in commenting on the matter” against the public employer’s interest “in
promoting effective and efficient public service.”
Spiegla v. Hull, 481 F.3d 961, 965
(7th Cir. 2007). Defendants carry the burden of demonstrating that their interests as employers
outweigh the employees’ interests in speaking out on a matter of public concern. Gustafson,
290 F.3d at 906. The Seventh Circuit has identified certain factors that should be considered when
determining whether the government’s interest outweighs the First Amendment interests of a
public employee. Graber v. Clarke, 763 F.3d 888, 896 (7th Cir. 2014). These factors include:
(1) whether the speech would create problems in maintaining discipline or harmony
among coworkers; (2) whether the employment relationship is one in which
personal loyalty and confidence are necessary; (3) whether the speech impeded the
employee’s ability to perform [her] responsibilities; (4) the time, place, and manner
of the speech; (5) the context within which the underlying dispute arose; (6)
whether the matter was one on which debate was vital to informed decisionmaking;
and (7) whether the speaker should be regarded as a member of the general public.
Id. “Even if an employee’s speech is on a matter of public concern, a government employer is
entitled to restrict that speech if it can carry its burden of proving that the interest of the public
employee as a citizen in commenting on the matter is outweighed by the interest of the state, as
employer, in promoting effective and efficient public service.” Gustafson, 290 F.3d at 909. Yet,
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“[t]he stronger the employee’s interest in speaking, the more substantial a showing the state must
make to justify its restriction of that speech.” Id.
If the employee is found to have engaged in constitutionally protected speech under both
prongs of the Connick-Pickering test, the court then analyses whether the employee suffered a
deprivation likely to deter free speech. “Any deprivation . . . that is likely to deter the exercise of
free speech . . . is actionable, if the circumstances are such as to make such a refusal an effective
deterrent to the exercise of a fragile liberty.” Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000).
“A [section] 1983 case does not require an adverse employment action within the meaning of the
antidiscrimination statutes,” in order to be valid. Mosley v. Bd. of Education of City of Chicago,
434 F.3d 527, 533 (7th Cir. 2006). For example, in Bart v. Telford, 677 F.2d 622 (1982), the
Seventh Circuit held that a campaign of minor harassment was sufficient to deter the exercise of
free speech. In Walsh v. Ward, 991 F.2d 1344, 1345 (7th Cir. 1993), it observed, “[a] campaign
of petty harassment may achieve the same effect as an explicit punishment.” And in DeGuiseppe
v. Village of Bellwood, 68 F.3d 187, 192 (7th Cir. 1995), the Court of Appeals declared, “[u]nder
the law of this Circuit, retaliation need not be monstrous to be actionable under the First
Amendment; it need merely create the potential for chilling employee speech on matters of public
concern.” Lastly, dismissal, denial of transfer, failure to recall after layoff, and refusal to promote
are significant penalties that impermissibly encroach on First Amendment freedoms unless such
practices are narrowly tailored to further vital government interests. See Rutan v. Republican Party
of Illinois, 497 U.S. 62, 73-75 (1990).
If the employee has been found to have engaged in constitutionally protected speech and
suffered a deprivation likely to deter that speech, the court then moves on to the fifth, and final,
“motivating factor” requirement. “[T]he ‘motivating factor’ requirement splits the burden of
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production between the parties on summary judgment.” Peele v. Burch, 722 F.3d 956, 960
(7th Cir. 2013) (citing Kidwell, 679 F.3d at 965). The plaintiff has the initial burden to produce
evidence that her speech was at least a ‘motivating factor’ in the employer’s decision to take
adverse action against her. Peele, 722 F.3d at 960. “The defendant may then rebut that evidence
by demonstrating that ‘the harm would have occurred anyway,’ even without the protected
conduct.” Id. (quoting Greene v. Doruff, 660 F.3d 975, 977 (7th Cir. 2011)). “If the [defendant]
successfully rebuts the causal inference, the burden shifts back to the plaintiff to demonstrate that
the [defendant’s] proffered reason was pretextual and that the real reason was retaliatory animus.”
McGreal v. Village of Oak Park, 850 F.3d 308, 313 (7th Cir. 2017) (internal citation omitted).
The plaintiff may fulfill her burden of proof by presenting either direct or circumstantial
evidence. Kidwell, 679 F.3d at 965. “Direct evidence is evidence which, if believed by the trier
of fact, will prove the particular fact in question without reliance upon inference or presumption.”
Eiland v. Trinity Hospital, 150 F.3d 747, 751 (7th Cir. 1998) (internal citation omitted).
“Circumstantial evidence may include suspicious timing, ambiguous oral or written statements, or
behavior towards or comments directed at other employees in the protected group.” Long v.
Teachers’ Retirement System of Illinois, 585 F.3d 344, 350 (7th Cir. 2009)). “Regardless of which
type of evidence is offered, to demonstrate the requisite causal connection in a retaliation claim,
[a] plaintiff[ ] must show that the protected activity and the adverse action are not wholly
unrelated.” Kidwell, 679 F.3d at 966 (internal citation omitted). “On summary judgment . . . the
plaintiff’s burden is simply to demonstrate that there is a genuine issue of material fact on the
question of causation.” Yahnke v. Kane County, Illinois, 823 F.3d 1066, 1071 (7th Cir. 2016).
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Dawn Hostetler
Dawn Hostetler began working at the Tazewell County Sheriff’s Department as a
correctional officer in 2003. (Hosteler Dep. at 8.) Hostetler was assigned a classification officer
position at the Department for approximately four years, until 2010. (Id. at 8-10.) On April 1,
2010, Superintendent Earl Helm issued a memo altering the work assignments for officers Karrick,
Hostetler, and Moretto. (Id. at 58.) The memo indicated Hostetler would be removed from the
classification officer assignment on Tuesdays and Wednesdays, and that she would keep the
assignment on Thursdays, Fridays, and Saturdays. (Id.) Hostetler testified she participated in the
October 7, 2010, no-confidence vote against Sheriff Huston. (Id. at 43.) In November 2010,
Hostetler was removed from her classification officer assignment and reassigned to pod officer,
which Hostetler considered a demotion. (Id. at 60.) Hostetler testified she was demoted because
correctional officers are paid less than classification officers. (Id.) Hostetler also testified she
apologized to Sheriff Huston for the no-confidence vote eight to ten months after the vote was
taken. (Id. at 80.) Hostetler was ultimately promoted to Field Training Officer (“FTO”) sometime
in 2017. (Id. at 38-40.)
Marissa Hutton
Marissa Hutton began working at the Sheriff’s Department as a control room operator in
2006. (Hutton Dep. at 12.) In July 2007, Hutton became a correctional officer, and she is currently
an FTO with the Department. (Id. at 13.) Hutton testified she “had nothing to do with the noconfidence vote” (id. at 71), and had no participation in the 2010 Sheriff’s reelection campaign
(id. at 93). Hutton also concedes she does not believe she was retaliated against individually.
(Id. at 72.) Rather, Hutton alleges she was retaliated against as a member of a “group of
[correctional officers]” (id.), and as a female (id. at 73). Hutton claims the Sheriff denied accrued
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time donations in “retaliation” (id. at 126), but she cannot pinpoint any protected activity that
motivated the retaliatory behavior (see id. at 126-27).
Richard Johnston
Richard Johnston began his tenure at the Sheriff’s Department as a correctional officer in
1990. (Johnston Dep. at 8.) Johnston became a part-time sergeant in 1992, and transitioned to a
full-time sergeant in 1996. (Id. at 10.) Johnston retired from the Department in 2015. (Id. at 33.)
From October 2008 to June 2010, Johnston was suspended as a result of a use-of-force incident
with a female detainee. (Id. at 35, 52, 112.) The Sheriff’s Department also sought to terminate
Johnston as a result of the incident (id. at 115), but the Merit Commission reinstated Johnston in
2010 (id.). Johnston attributes animosity from the Sheriff to his participation in the union / union’s
negotiation team and because he would not do the Sheriff’s bidding. (Id. at 215.) Johnston
testified he was present at the union meeting when the no-confidence vote was held (id. at 12223), but there is no evidence in the record Johnston actually voted. (See generally, Id.) Johnston
testified he publicly supported Ron Davis for Sheriff in 2010, by telling other officers of his
support and by attending democratic fundraisers. (Id. at 125, 127.) Johnston was part of the union
negotiation team until 2010. (Id. at 35.) Johnston was also lodge chaplain, vice president, and
then president of the union until 2014. (Id. at 32.) Johnston was removed from his sergeant
position when the jail was reorganized. (Id. at 171-72.) Johnston testified he felt the elimination
of the position was discipline against he and VanDusen because they were “very vocal in union
aspects.” (Id. at 170-71.) Johnston also testified he did not apply for the Jail Operations Supervisor
(“JOS”) position because he was fearful the Sheriff would fire him if he accepted the non-union
role. (Id. at 173.)
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Aleisha Karrick
Aleisha Karrick was employed at the Sheriff’s Department as a correctional officer from
2005 to November 15, 2014. (Karrick Dep. at 8, 16.) Karrick testified she participated in the noconfidence vote (id. at 69, 83), and afterward, her opportunity for advancement became slim to
none (id. at 97). Karrick testified Superintendent Bill Roth told her and other third-shift officers
they should “fluff the Sheriff’s feathers” and apologize to him for the no-confidence vote. (Id. at
126-27.) Karrick applied for an FTO position, but cannot remember the exact timeframe. (Id. at
98.) Karrick also “liked” Ron Davis for Sheriff posts on Facebook and had a conversation about
this activity with Superintendent Earl Helm. (Id. 159-60.) During the conversation with Helm,
Helm allegedly told Karrick “there’s a group of jailers that are driving the bus off a cliff over there
and if they’re not careful they’re going to take [you] with them.” (Id. at 159.) Karrick began
training for a classification officer position in early 2010, but left the position after she discovered
she would be replacing Michelle Moretto. (Id. at 122-23.) Karrick also testified Helm told her
“they dug their own grave” when she informed Helm she was uncomfortable replacing Moretto.
(Id. at 123.) Karrick testified, years after the no-confidence vote, she met with Sheriff Huston and
informed him how she voted. (Id. at 89-91.) On April 1, 2010, Superintendent Helm issued a
memo altering the work assignments for classification officers Karrick, Hostetler, and Moretto.
(MSJ, ¶ 187.) Karrick was replaced as a classification officer in December 2010. (Id. at ¶ 189.)
Charles Tyson May
Charles Tyson May has been working at the Sheriff’s Department as a correctional officer
since October 2009. (May Dep. at 6.) May has not been disciplined while employed at the
Department, outside of a disagreement with Superintendent Roth regarding the use of trade days.
(Id. at 18-22.) May applied for a classification position early in his career, but cannot recall the
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specific timeframe, and was not hired for that position. (Id. at 65.) In 2014, May filed a grievance
regarding shift bidding (see ECF No. 114-5 at 48), which was ultimately resolved in his favor.
(Id. at 49-52.) May testified he was present at the October 7, 2010, union meeting when the noconfidence vote was held (id. at 80), but he fails to indicate he actually voted (see generally, id.)
There is also no indication in the record May participated in any of the Sheriff’s reelection
campaigns—either for or against the Sheriff. (Id.)
Rebecca Melloy 3
Rebecca Melloy has been working at the Sheriff’s Department as a correctional officer
since October 2006. (Melloy Dep. at 7.) Melloy attended the October 7, 2010, union meeting and
participated in the no-confidence vote. (Id. at 123.) There is no indication in Melloy’s deposition
that she participated in any of the Sheriff’s reelection campaigns—either for or against the Sheriff.
(See generally, Id.) However, Sheriff Huston testified he saw that Melloy made a $300 donation
to Ron Davis, via his opponent’s financial reports filed with the state election board.
(Huston Dep. at 18.) Additionally, Plaintiffs’ Response references light-duty requests
(Resp., ¶ 215), but Melloy testified she never submitted any light-duty requests. (Melloy Dep. at
36-37.)
In April 2009, Melloy and VanDusen filed a grievance concerning the Sheriff’s
Department prohibition of them working together and prevailed. (Id. at 69.) Since 2010, Melloy
has been passed over for an FTO position on numerous occasions.
(Id. at 60-61.)
On
May 14, 2012, Melloy filed a grievance concerning an unfounded disciplinary reprimand she
received (see ECF No. 133 at 70), and ultimately prevailed.
3
Plaintiff Rebecca VanDusen is referenced using her maiden name in order to avoid conflating her claims with those
of her husband, Plaintiff Steve VanDusen.
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Ashley Mehrzad
Ashley Mehrzad worked at the Sheriff’s Department as a correctional officer from March
2013 to September 2015. (Mehrzad Dep. at 11-12.) Mehrzad did not participate in the 2010 noconfidence vote against Sheriff Huston (id. at 14), and there is no indication in the record
suggesting she participated in any of Sheriff Huston’s reelection campaigns (see generally, id.)
Mehrzad was not formally disciplined at any time during her tenure at the jail (id. at 67); however,
she was denied a light-duty request to work at the jail while she was pregnant (id. at 111). The
denial of her light-duty request comprises a separate employment discrimination claim against the
Sheriff’s Department. (See ECF No. 61 at 16-17.)
Michelle Moretto
Michelle Moretto began working at the Sheriff’s Department as a correctional officer in
2001. (Moretto Dep. at 6-7.) Moretto has been at the Department, in various roles, for nearly
sixteen years. (Id. at 13.) From 2002 until 2011, Moretto was assigned a classification officer
position. (Id. at 14.) Moretto testified she participated in the no-confidence vote against the
Sheriff. (Id. at 43.) Moretto also testified she supported Ron Davis in the 2010 Sheriff’s election.
(Id. at 46.) Moretto put a sign in her front yard and attended a couple of meetings. (Id. at 47.) In
May 2011, Moretto lost her classification officer assignment when she returned to work after an
injury. (Id. at 15, 48.) Upon her return, Moretto was assigned work as a correctional officer on
third shift. (Id. at 14-15.) Moretto testified Superintendent Roth told her numerous times (the last
time on December 17, 2013) that things would only get better if she apologized to the Sheriff for
her participation in the no-confidence vote. (Id. at 94-95.) Moretto also testified she filed
grievances concerning the ability to work light duty, the ability to receive donated accrued time,
and the ability to carry over compensatory time. (Id. at 33.) Moretto testified she filed grievances
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on behalf of the union concerning the dismantling of the Merit Commission, the elimination of the
sergeant position, the privatization of the jail, and grievances on other topics. (Id. at 33.)
Additionally, Moretto submitted four worker’s compensation claims while employed at the
Sheriff’s Department in 2006, 2009, 2012, and 2013. (Id. at 7.)
Rhonda Randolph
Rhonda Randolph was employed at the Sheriff’s Department as a correctional officer from
2003 through May 2015. (Randolph Dep. at 5, 11.) Randolph testified she participated in the noconfidence vote in 2010, and discretely supported Ron Davis in the 2010 Sheriff’s campaign.
(Id. at 105-06, 108-10.) Randolph explained her ex-husband was good friends with Davis, overtly
supported him, and contributed to his campaign. (Id. at 109.) Randolph also testified she twice
applied for an FTO position after the vote, but was not selected. (Id. at 13-14, 129.) Randolph
also applied for a classification officer assignment, which she did not receive. (MSJ, ¶ 191.)
Randolph testified that in January 2012, when she interviewed for a JOS position with Sheriff
Huston, “he brought up the no-confidence vote—[and] said five or six people had came (sic) over
there and told him that they voted no or they didn’t vote at all, and . . . he didn’t know who he
could trust or not trust.” (Id. at 22.) Randolph testified Huston told her “he heard that a lot of
people were going to interview or apply for . . . the JOS job, and not take it, and he would hire six
ball breakers from the streets if he had to to straighten us out.” (Id. at 23.) Randolph also testified
Commander Roth approached her in A-pod and told her “if everybody went over and apologized
to the Sheriff that maybe things would get better for them . . . . [t]hat we wouldn’t be getting so
many restrictions and so many changes and stuff within the jail.” (Id. at 71.) Randolph did not
receive the JOS position (id. at 14) and was never disciplined as a correctional officer. (MSJ, ¶
355.)
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Amber Robertson
Amber Robertson has been working at the Sheriff’s Department as a correctional officer
since 2003. (Robertson Dep. at 8.) Robertson testified she voted no confidence against Sheriff
Huston in 2010. (Id. at 18.) Robertson also testified she never participated in any of the Sheriff’s
reelection campaigns, other than to verbalize to family and friends the benefits to the jail if a new
Sheriff was in charge. (Id. at 23.) Robertson signed up to be considered for an FTO position, but
was not selected. (Id. at 46.) Robertson also sought a classification officer assignment, but was
not selected. (Id. at 44.) Robertson was initially assigned to a classification officer position, but
her training was suspended without explanation. (Id.) Robertson submitted a light-duty request
due to a broken thumb, but her request was denied. (Id. at 23-24.) In 2015, Robertson applied for
a JOS position, but was not selected. (MSJ, ¶ 311.) Robertson alleges her union association was
given improper consideration in determining whether she was qualified to be a JOS. (Robertson
Dep. at 26-27.) Robertson testified Superintendent Roth made the comment that “if we apologize
[for the no-confidence vote], it will all go away.” (Id. at 66.) Robertson also alleges Sheriff Huston
made derogatory comments concerning the suit at hand during her interview for the JOS position.
(Id. at 113-114.)
Trent Strunk
Trent Strunk began working at the Sheriff’s Department in early 2004. (Strunk Dep. at 9.)
Strunk started in the control room and became a correctional officer in August 2004. (Id. at 8-9.)
Strunk testified he was not involved in the no-confidence vote (id. at 70) and that he informed
Superintendent Roth as such (id. at 72). Strunk also testified he was not involved in any of Sheriff
Huston’s reelection campaigns. (Id. at 23.) Strunk applied for a sergeant position, but failed to
pass the sergeant’s exam. (Id. at 40.) Strunk also applied for an FTO position, but was not selected.
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(Id. at 21.) On November 11, 2014, Strunk filed a grievance complaining he was passed up for
overtime in contravention of the collective bargaining agreement. (See ECF No. 114-5 at 50.)
Larry Vicary
Larry Vicary began working at the Sheriff’s Department as a correctional officer in 2008.
(Vicary Dep. at 7.) Vicary testified he did not participate in the no-confidence vote (id. at 35), and
was never involved in any of the Sheriff’s reelection campaigns (id. at 33). Vicary also testified
he signed up for a classification officer assignment, but was not chosen. (Id. at 12-13.) In
November of 2014, Vicary resigned from the Sheriff’s Department to work as a correctional officer
at the Federal Bureau of Prisons. (Id. at 7-8.) Vicary had not received any discipline while working
at the jail. (Id. at 10.)
Steve VanDusen
Steve VanDusen began working at the Sheriff’s Department as a correctional officer in
April 2000, and was promoted to sergeant in 2004. (VanDusen Dep. at 9-10.) On October 7,
2010, VanDusen was present at the union meeting and gave a speech in favor of the vote.
(Id. at 20-21.) VanDusen testified the content of his speech involved supporting Ron Davis,
advocating for change, and communicating that the officers needed to make the issues that were
going on at the jail known. (Id. at 21.) Although VanDusen was present at the meeting and gave
a speech in favor of the vote, there is no evidence in the record he actually voted. (See generally,
id.) VanDusen was also instrumental in bringing the idea of a no-confidence vote to union
members and consulting with the union attorney. (Id. at 16-19.) VanDusen also testified he
supported Ron Davis in the 2010 Sheriff’s election and wore a Davis shirt at a debate between
Huston and Davis. (Id. at 24.) VanDusen testified Sheriff Huston looked directly at him for nearly
a minute before the debate began. (Id. at 25.) VanDusen also testified Superintendent Roth told
16
him “you f*cked up when you did a no-confidence vote and you need to go apologize if you want
things to get better for you.” (Id. at 40.) VanDusen’s sergeant position was formally eliminated
when the jail was reorganized in 2012. (Id. at 40-41.) VanDusen did not apply for the newly
created JOS position. (Id. at 41.) Superintendent Kurt Ulrich testified that in 2011, he was a party
to several conversations with Superintendent Helm and Sheriff Huston where they discussed
classifying the JOS position as non-union. (Ulrich Dep. at 41-42.) In 2014, VanDusen became
union president. (Resp., ¶ 66.) VanDusen has been active in the union since 2009 (VanDusen Dep.
at 13-14) and testified he was one of the main people that filed grievances on its behalf (id. at 64).
VanDusen has been an FTO since 2003, but has not trained anyone since 2009, and was not being
invited to FTO meetings. (Id. at 30-33.)
I.
The No-Confidence Vote
A Fraternal Order of Police (“FOP”) Union meeting was held on October 7, 2010, in the
community room at the Tazewell County Justice Center. (MSJ, ¶ 49.) A significant number of
correctional officers and sergeants who were members of the union attended the meeting.
(Ulrich Dep. at 76-78.) At the beginning of the meeting, the union attorney announced there was
going to be a no-confidence vote held against Sheriff Huston. (Id. at 76.) Plaintiffs Hostetler,
Karrick, Melloy, Moretto, Robertson, and Randolph were present at the meeting and participated
in the vote. 4 Plaintiff Steve VanDusen was in attendance and gave a brief speech in favor of the
vote, but there is no indication in the record he actually voted. Similarly, it is clear Plaintiffs
Johnston and May were present at the union meeting, but there is no direct evidence that either
officer voted.
4
This material fact is taken directly from Plaintiffs’ depositions (see Hostetler Dep. at 43-45; Karrick Dep. at 83, 91;
Melloy Dep. at 126; Moretto Dep. at 43; Robertson Dep. at 18; Randolph Dep. at 105), as the Parties failed to directly
address which Plaintiffs participated in the no-confidence vote in their summary judgment briefs.
17
During the meeting, a vote on whether the officers had confidence in Sheriff Huston was
held by anonymous paper ballot. (MSJ, ¶ 52.) The day after the vote, the union’s attorney issued
a press release stating that 85% of correctional officers voted “no confidence” in the Sheriff.
(Id., ¶ 54.) Later that afternoon, Sheriff Huston held a news conference to publicly address the
vote. (Huston Dep. at 149.) Huston was quoted in the Pekin Daily Times as stating, “I must
assume that the jailers don’t want to be subject to discipline, they don’t want to be held
accountable, they want . . . a sheriff who is a lodge brother—not a boss.” (ECF No. 158-9 at 1-2.)
A.
Plaintiffs Spoke as Private Citizens
The Court finds that Plaintiffs Hostetler, Karrick, Melloy, Moretto, Robertson, Randolph,
and VanDusen spoke as private citizens on a matter of public concern when they participated in
the October 7, 2010, no-confidence vote against Sheriff Huston. Although Plaintiffs failed to
proffer evidence demonstrating VanDusen voted, the Court finds VanDusen’s speech in favor of
the vote constitutes protected activity. The Court does not find, however, that Plaintiffs mere
presence at the union meeting constitutes protected speech, and Plaintiffs fail to suggest or argue
otherwise. 5 As such, Plaintiffs Johnston and May fail to make a prima facie showing of retaliation
and are excluded from this claim with the other Plaintiffs.
As it relates to the no-confidence vote, the Supreme Court has determined that “when
public employees make statements pursuant to their official duties, the employees are not speaking
as citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti, 547 U.S. at 421 (emphasis added).
“Determining the official duties of a public employee requires a practical inquiry into what duties
the employee is expected to perform, and is not limited to the formal job description.” Houskins,
5
See Resp. at 145-149.
18
549 F.3d at 490. Although the First Amendment does not protect a public employee’s expressions
made pursuant to his or her official responsibilities, if the public employee is speaking in his or
her capacity as a union representative, they are speaking as citizens. Graber v. Clarke, 763 F.3d
888, 895 (7th Cir. 2014).
Here, the record is clear that Plaintiffs were not speaking pursuant to their official duties
when they participated in the vote. The union meeting was held during the evening hours in the
community room of the Justice Center, only union members were allowed to cast ballots, and the
ballots were completed anonymously. Moreover, Defendants have failed to tender any evidence
which suggests that Plaintiffs’ job responsibilities included attending union meetings or
participating in a no-confidence vote. There is evidence, however, that a significant number of
union members chose not to attend the meeting or participate in the vote. (See e.g., MSJ, ¶ 64.)
As such, the Court finds Plaintiffs spoke as private citizens when casting their ballots, for or
against, no-confidence in the Sheriff.
B.
Plaintiffs Spoke on a Matter of Public Concern
Plaintiffs were also speaking on a matter of public concern by participating in the vote.
“The public concern element is satisfied if the speech can fairly be said to relate to a matter of
political, social, or other concern to the community, rather than merely a personal grievance of
interest only to the employee.” Gustafson, 290 F.3d at 907 (internal citation omitted). “Whether
an employee’s speech addresses a matter of public concern must be determined by the content,
form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at
147-48. Content is the most important of these three factors. Gustafson, 290 F.3d at 907.
Here, it is evident from the record Plaintiffs’ no-confidence vote was intended to have
political ramifications, as the vote was conducted less than a month before the Sheriff’s election,
19
the union issued a press release summarizing the vote results, and the Sheriff himself testified the
intent of the vote was to influence the outcome of the election (Huston Dep. at 149-50). The
Sheriff also called a press conference to respond to the results the same day the union’s press
release was issued. Thus, the context of the vote was a public statement in a highly politicized
atmosphere. Finally, the form of the speech in question was an anonymous vote, the purpose of
which was to demonstrate to the public that the officers no longer held confidence in the Sheriff.
(See, e.g., Johnston Dep. at 116-17.) (“[T]he only . . . recourse is [to] have a union say we don’t
have confidence in you.”) Viewing the facts and reasonable inferences in the light most favorable
to Plaintiffs, their participation in the union’s no-confidence vote against Sheriff Huston involved
a matter of public concern.
As it concerns Plaintiff VanDusen’s speech in favor of the vote, his speech also meets the
aforementioned criteria. VanDusen testified that he “spoke out in support of Davis” at the union
meeting before the vote was held and argued “we needed change and we needed to make it known
of the issues that were going on at the jail.” (VanDusen Dep. at 21.) It is also a reasonable
inference VanDusen was speaking in his role as a union representative at the meeting, as the
content of his speech clearly indicates political support of the Sheriff’s opponent in the wake of an
election that would take place one month later. Accordingly, VanDusen was speaking as a private
citizen on a matter of public concern when he gave a speech before the no-confidence vote.
C.
The Balancing of Interests Favors Plaintiffs
The second part of the Connick-Pickering test involves balancing Plaintiffs’ interests as
citizens commenting on the matter against Defendants’ interest in promoting effective and efficient
public service. Spiegla, 481 F.3d at 965. As it relates to the no-confidence vote, Defendants fail
to demonstrate their interests as employers outweigh Plaintiffs’ interests in speaking out on a
20
matter of public concern. There is no evidence in the record, and Defendants fail to argue, that
Plaintiffs’ participation in the no-confidence vote created problems in maintaining discipline or
harmony among coworkers. In fact, Defendants concede several Plaintiffs had no disciplinary
history after the vote. (See MSJ, ¶¶ 338, 355, 359, 361, 364.) The “flurry of lawsuits” Defendants
mention occurred before the no-confidence vote took place in October of 2010. (See MSJ, ¶¶ 18,
20, 22, 23, 26, 30, 35.)
Furthermore, personal loyalty was not a prerequisite for correctional officers, or even a
sergeant, working in the Tazewell County Jail in 2010. The record also fails to demonstrate the
vote impeded any of Plaintiffs’ abilities to perform their responsibilities, as some were promoted
(see Hostetler Dep. at 40), or obtained comparable work elsewhere (see Vicary Dep. at 8). Finally,
the no-confidence vote was held in a public forum, outside of normal business hours, and was
conducted anonymously. Several Plaintiffs testified the vote was due to dissatisfaction with the
Sheriff’s performance and his lack of attachment to the day-to-day operations of the jail. (Resp.,
¶ 45.) The Court has already concluded (see supra pp. 18-20) Plaintiffs were speaking as private
citizens when participating in the no-confidence vote one month before the 2010 Sheriff’s election.
Therefore, the Court finds the balance of interests favors Plaintiffs.
D.
Plaintiffs Suffered Deprivations Likely to Deter Free Speech
If one thing in this case is patently clear, it is that Plaintiffs allegedly endured a campaign
of retaliation sufficient to deter the exercise of free speech by participating in the no-confidence
vote. In November 2010, Hostetler was removed from her classification assignment and was reassigned as pod officer. Defendant Helm testified classification officers receive a 7% pay bonus.
(MSJ, ¶ 181.) Since 2010, both Karrick and Melloy have been passed over for FTO positions. In
May 2011, Moretto lost her classification assignment and was re-assigned as a correctional officer
21
on third shift. Randolph twice applied for an FTO position and also applied for a classification
assignment, but was not selected. Robertson applied for an FTO position, sought a classification
assignment, and applied for a JOS position, but was not selected for any of these roles. Robertson
had initially been given a classification assignment, and had begun training for the position, when
the training was suspended without explanation. Finally, VanDusen’s sergeant position was
formally eliminated when the jail was reorganized in 2012. The reorganization of the jail
eliminated the rank and position of sergeant and returned those individuals to the position of jail
officer. (MSJ, ¶ 84.) Although VanDusen was able to retain his sergeant’s salary and seniority,
the Court finds the stripping of his title and requiring him to apply to obtain the same position—
one without union protection—could constitute an effective deterrent to the exercise of free
speech. VanDusen also testified he has been an FTO since 2003, but has not trained anyone since
2009, and was not being invited to FTO meetings. (MSJ, ¶ 117.) The Court finds all of these
events qualify as deprivations likely to deter speech.
E.
There Exists a Genuine Issue of Material Fact on the Question
of Causation
“At summary judgment in First Amendment retaliation cases, the burden of proof for
causation is divided and shifts between the parties.” McGreal, 850 F.3d at 312 (citing Kidwell,
679 F.3d at 965). First, Plaintiffs must produce evidence that their speech was at least a motivating
factor of Defendants’ decision to take retaliatory action against them. Id. at 313. If Plaintiffs make
this initial showing, the burden shifts to Defendants to rebut the causal inference. Id. Defendants
can meet their burden by offering an alternative explanation for the suffered deprivation, showing
that its decision would have been made in the absence of the protected speech. Id. If Defendants
successfully rebut the causal inference, the burden shifts back to Plaintiffs to demonstrate
Defendants’ proffered reasons were pretextual and that the real reason was retaliatory animus. Id.
22
“At the summary judgment stage, this means a plaintiff must produce evidence upon which a
rational finder of fact could infer that the defendant’s proffered reason is a lie.” Zellner v. Herrick,
639 F.3d 371, 379 (7th Cir. 2011). Alternatively, on summary judgment, the plaintiff’s burden is
simply to demonstrate that there is a genuine issue of material fact on the question of causation.
Yahnke, 823 F.3d at 1071.
1. Plaintiffs’ No-Confidence Vote as a Motivating Factor
To show a causal connection between the deprivations Plaintiffs suffered and the noconfidence vote, Plaintiffs must first demonstrate Defendants knew of the no-confidence vote.
See Stagman v. Ryan, 176 F.3d 986, 999-1000 (7th Cir. 1999) (“Allegedly protected speech cannot
be proven to motivate retaliation, if there is no evidence that the defendants knew of the protected
speech.”). Here, Plaintiffs have adduced sufficient evidence for a finder of fact to reasonably
conclude Defendants knew of the October 7, 2010, no-confidence vote. Sheriff Huston testified
he heard about the possibility of a no-confidence vote before it was even held from Sergeant
Jennifer Stanton. (Huston Dep. at 13.) The Sheriff also publicly responded to the vote via a
televised news conference the same day the vote results were released to the media. (Id. at 149.)
Superintendent Helm testified he heard about the no-confidence vote on the day of the vote (Helm
Dep. at 21), and Defendant Kurt Ulrich testified he spoke with Helm the day after the vote.
(Ulrich Dep. at 82.) Ulrich also testified he told Helm that Moretto and VanDusen voted in favor
of no confidence and he (Ulrich) voted against it. (Id. at 83-84.) Then, Ulrich testified that Helm
said he was going to tell the Sheriff. (Id. at 84.) Finally, Superintendent Bill Roth testified he
learned of the vote from correctional officers when he was stationed on third shift at the jail.
(Roth Dep. at 23.)
23
In support of their burden to produce evidence that demonstrates the no-confidence vote
was at least a “motivating factor” for Defendants’ actions, Plaintiffs have proffered sufficient
circumstantial evidence to satisfy the requisite showing. “Circumstantial evidence may include
suspicious timing, ambiguous oral or written statements, or behavior towards or comments
directed at other employees in the protected group.” Kidwell, 679 F.3d at 966. Multiple Plaintiffs
testified Superintendent Roth told them that if they apologized to the Sheriff for the vote, things
would get better. Plaintiffs also testified they were referred to as “problem children,”
“troublemakers,” and “union radicals.” (MSJ, ¶¶ 230, 234.) In terms of suspicious timing, since
the no-confidence vote, Plaintiffs have been excluded from advancement opportunities, including
being denied positions as FTOs, Jail Operations Supervisors, and classification officers. The
position of sergeant was also eliminated and replaced by the non-union JOS position. Finally,
Plaintiffs have submitted adequate evidence to create a genuine issue of material fact as to whether
they were treated differently than other employees in regard to their workers’ compensation
claims, light-duty requests, and accrued time donations. (Compare Resp., ¶ 211 at 62, ¶ 280 at 70,
¶ 131 at 124; ¶¶ 264, 266-69, at 16; with Reply, ¶ 212 at 41; ¶ 131 at 19; ¶ 211 at 29-30.)
2. Defendants’ Fail to Rebut the Causal Inference
To successfully rebut the causal inference of retaliation established by Plaintiffs,
Defendants must offer alternative explanations for Plaintiffs’ suffered deprivations, demonstrating
their decisions would have been made in the absence of the protected speech. As it relates to the
October 7, 2010, no-confidence vote, Plaintiffs Hostetler, Karrick, Melloy, Moretto, Robertson,
and Randolph have sufficiently established First Amendment retaliation claims against
Defendants. Defendants respond to Plaintiffs’ allegations by asserting “[t]here are good reasons
for the actions taken by [them].” (MSJ at 96.) They contend command staff was reorganized to
24
address a perceived lack of adequate supervision and discipline in light of lawsuits and other
misconduct arising from the operation of the jail. (Id.) Defendants also assert that “[m]any of the
Plaintiffs here did not seek positions they claim were denied to them, such as deputy, FTO,
[c]lassification [o]fficer, or JOS.” (Id. at 98.)
However, Defendants fail to adduce sufficient evidence to demonstrate Plaintiffs’ alleged
deprivations would have occurred without their participation in the no-confidence vote. The
threadbare argumentation (four undeveloped assertions, two of which remain unsubstantiated by
reference to facts) 6 and irrelevant evidence 7 Defendants offer, does not satisfy their burden to
demonstrate they are entitled to judgment as a matter of law on this issue. The Court also
concludes Plaintiffs have offered sufficient evidence upon which a rational finder of fact could
infer Defendants’ proffered reasons are pretext. (See e.g., MSJ at 98) (“Many of the officers did
not seek positions that they claim were denied to them, such as deputy, FTO, [c]lassification
[o]fficer, or JOS.”)
Construing all facts and reasonable inferences in their favor, Plaintiffs have demonstrated
the aforementioned correctional officers participated in the no-confidence vote, Sheriff Huston and
the other Defendants possessed sufficient information to determine which officers voted against
the Sheriff, and the Defendants engaged in retaliatory behavior toward each Plaintiff because of
their vote—whether Defendants’ speculation of Plaintiffs’ voting persuasion was accurate or not.
For the aforementioned reasons, Plaintiffs Hostetler, Karrick, Melloy, Moretto, Robertson, and
Randolph may proceed with their First Amendment retaliation claims based on political activity
against Defendants. A jury will resolve the factual dispute concerning which Defendants, if any,
were responsible for the retaliatory action(s) against Plaintiffs.
6
7
See MSJ at 96-99.
See, e.g., MSJ at ¶¶ 3, 8, 11, 14, 17, 18, 19, 20, 22, 23, 29, 37-40, 95-100.
25
II.
Sheriff Huston’s Reelection Campaign
Less than one month after the October 7, 2010, union meeting and no-confidence vote,
Sheriff Huston was up for reelection. (MSJ, ¶ 65.) Huston’s opponent, Ron Davis, was endorsed
by the FOP union (see Huston Dep. at 19), and a number of correctional officers at the jail
supported him. Plaintiffs Johnston, Karrick, Melloy, Moretto, and VanDusen testified they openly
supported Davis during the campaign. Karrick testified Superintendent Helm was aware she
supported Davis because of a conversation Helm had with her concerning her Facebook activity.
Karrick also testified Helm told her “there’s a group of jailers that are driving a bus off a cliff over
there” and if they’re not careful they’re going to take [Karrick] with them.”
Steve VanDusen testified he attended a debate during the 2010 Sheriff’s campaign wearing
a Ron Davis shirt. VanDusen also testified Sheriff Huston was aware of his attendance because
the Sheriff looked directly at VanDusen for nearly a minute before the debate started. Richard
Johnston testified he made it known to other correctional officers he was supporting Ron Davis.
Johnston also attended a debate between the candidates and a few democratic fundraisers for
Davis. Finally, Sheriff Huston testified he was aware some employees supported his opponent in
the 2010 Sheriff’s race. (Huston Dep. at 18.) Of the Plaintiffs, Sheriff Huston testified he knew
Melloy made a $300 donation to Ron Davis based on his opponent’s financial reports filed with
the state board of elections. (Id.)
A.
There Exists a Genuine Issue of Material Fact on the Question
of Causation
As it concerns Plaintiffs’ political support of Ron Davis in 2010, there is no dispute
Plaintiffs’ campaign activity constituted protected speech. Defendants concede as much in their
26
summary judgment motion 8 and the caselaw is clear that Plaintiffs’ political activity constitutes
free speech and is protected. See Hall v. Babb, 389 F.3d 758, 762 (7th Cir. 2004) (“It is well
established that hiring, firing, or transferring government employees based on political motivation
violates the First Amendment, with certain exceptions for policymaking positions and for
employees having a confidential relationship with a superior.”). Instead, Defendants argue there
is a lack of evidence Sheriff Huston was aware of “most” of Plaintiffs’ support for Davis, and even
if he was, the statute of limitations serves as a bar to their political activity. (See MSJ at 86-87.)
On summary judgment, Plaintiffs’ burden is to demonstrate there is a genuine issue of
material fact on the question of causation, which, in both scenarios, Plaintiffs have done. Through
deposition testimony, Plaintiffs have established they publicly supported Davis during the 2010
Tazewell County Sheriff’s election. Plaintiffs have also proffered sufficient evidence for a
reasonable finder of fact to draw the inference Defendants possessed enough information to
determine which Plaintiffs supported Davis in the 2010 campaign and retaliated against him or her
because of it. Accordingly, Plaintiffs Johnston, Karrick, Melloy, Moretto, and VanDusen may
proceed on their claim of First Amendment retaliation based on political association against
Defendants.
III.
Dismissed Claims: Retaliation Based on Grievance Activity
While Plaintiffs Hostetler, Johnston, Karrick, Melloy, Moretto, Randolph, Robertson, and
VanDusen have demonstrated they participated in one or both of the aforementioned protected
activities, Plaintiffs Hutton, May, Mehrzad, Strunk, and Vicary have failed to demonstrate they
participated in either. Hutton alleges she was retaliated against as a member of a group of
correctional officers, and as a female, but she fails to trace the retaliation back to any protected
8
See MSJ at 86 (“Speech that was political, such as actual involvement in the 2010 campaign (Facts 65-74), would
be protected.”).
27
activity. May testified he was present at the union meeting where the no-confidence vote was held,
but fails to prove he actually voted. Mehrzad began working at the Sheriff’s Department in March
2013, and fails to allege she was involved in any protected activity which may have resulted in
retaliation. Strunk testified he did not participate in the no-confidence vote and was not involved
in any of the Sheriff’s reelection campaigns. Vicary offers numerous allegations he was the victim
of retaliation (Vicary Dep. at 12-13; 33-34), but he fails to demonstrate he engaged in any protected
speech which may have spurred the retaliatory behavior. Without evidence they engaged in
protected speech for which they were subject to retaliation, Plaintiffs Hutton, May, Mehrzad,
Strunk, and Vicary fail to establish a prima facie case for retaliation and their claims are
DISMISSED.
A.
Plaintiffs’ Grievances Fail to Address Matters of Public Concern
Plaintiffs allege a large number of the individual grievances they filed throughout their
tenure at the Sheriff’s Department “touch on issues of public concern” and constitute protected
speech for which they are entitled protection. (See Resp. at 148-49.) However, Defendants argue,
and this Court agrees, Plaintiffs’ personal grievances fail to rise to the level of speaking on matters
of public concern. As to whether Plaintiffs’ grievances address a matter of public concern, the
Seventh Circuit recently observed:
Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement. The Connick
test requires us to look at the overall objective or point of the speech, as ascertained
by those three factors. Of the three factors, content is the most important, but the
subject matter of the speech is not determinative. Rather, we must focus on the
particular content (as opposed to the subject matter) of the speech. The motive of
the speaker is relevant as part of the context in which the speech was made but is
not dispositive. In sum, we ask whether the objective of the speech—as determined
by content form, and context—was to bring wrongdoing to light or to further some
purely private interest.
Kubiak v. City of Chicago, 810 F.3d 476, 482-83 (7th Cir. 2016) (internal citations omitted).
28
Here, Plaintiffs contend their individual grievances touch on issues of public concern such
as violations of the Merit Board Act, (MSJ, ¶ 159), violations of employee’s Weingarten rights,
(Id., ¶ 148), gender discrimination, officer allocation, and officer safety from excessive overtime
(Id., ¶¶ 165-68, 352), harassment (Resp., ¶ 191 at 133), department-wide issues (Id. at ¶¶ 147, 187;
MSJ, ¶¶ 147, 150-51, 153, 164, 167, 191, 205, 255-56), privatization of the jail (Resp., ¶¶ 171, 17475; MSJ, ¶ 43), elimination of the sergeant position and removal of the JOS position from the
collective bargaining unit (MSJ, ¶¶ 152, 154; Resp., ¶¶ 84, 190).
However, upon closer inspection, the Court finds the grievances in question were primarily
for the private purpose of resolving workplace issues. Additionally, the context and form of the
grievances are consistent with the vindication of work-related interests, rather than public concern.
The content of the grievances—while theoretically touching on subjects of potential interest to the
public—does not convince the Court that their purpose was anything other than personal. Thus,
even if the public would have been interested in, for example, gender preference in shift bidding,
or overtime policies at the jail, there is no indication from the grievances themselves that Plaintiffs
were attempting to bring those overarching issues to public light. (See e.g., ECF No. 114-5 at 48,
50.) Rather, the content, form, and context of the grievances demonstrate their overall objective
was primarily to further private workplace interests on a myriad of issues. Finally, even if the
Court were to construe some of Plaintiffs’ grievances as relating to matters of public concern,
Plaintiffs fail to adduce sufficient evidence to create a genuine issue of material fact on the question
of causation, as they have submitted little to no evidence they were retaliated against due to their
grievance activity. (See Resp. at 161-63.) Accordingly, Defendants’ motion for summary
judgment as it relates to Plaintiffs’ grievances is GRANTED, and Plaintiffs’ retaliation claims
based on grievance activity are DISMISSED.
29
IV.
Plaintiffs’ Monell Custom or Policy Claim Survives
Within their three-paragraph argument asserting Plaintiffs failed to establish a Monell
custom or policy claim, Defendants contend (i) there is no evidence of a policy to infringe upon
First Amendment rights; (ii) the January 29, 2012, Tazewell County Employee Speech policy is
to the contrary; (iii) most of the policy decisions were done by the County Board; (iv) most of the
Defendants are not policymakers; and (v) Plaintiffs have failed to demonstrate a custom or policy
was the “moving force” behind a constitutional violation. (MSJ at 101-02.) Defendants then
concede reorganizing the jail command was a policy decision by the Sheriff; the Sheriff is a
policymaker; and Defendants have made policy decisions, such as the decision to eliminate the
rank and position of sergeant. (Id.) Construing the facts and reasonable inferences in the light
most favorable to Plaintiffs, and applying the aforementioned concessions, the Court finds
Plaintiffs have adduced sufficient evidence to proceed on their theory of Monell liability against
Tazewell County and the Tazewell County Sheriff’s Department.
Under a Monell theory of liability, a plaintiff suing a municipality or comparable entity is
required to demonstrate the entity’s official policy, widespread custom, or action by an official
with policy-making authority, was the “moving force” behind her constitutional injury.
Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir. 2016) (citing City of Canton v. Harris, 489
U.S. 378, 379 (1989)). In Illinois, a sheriff has final policy-making authority, Brokaw v. Mercer
County, 235 F.3d 1000, 1013 (7th Cir. 2000), and a single unconstitutional act by a final
policymaker can be enough for Monell liability. See Valentino v. Vill. of South Chicago Heights,
575 F.3d 664, 675 (7th Cir. 2009) (“It is well-established that when a particular course of action
is directed by those who set municipal policy, the municipality is responsible under section 1983,
even if the action in question is undertaken only once.”).
30
Here, Plaintiffs have provided sufficient evidence for a reasonable jury to infer retaliation
was the moving force behind Plaintiffs’ constitutional injuries. Plaintiffs testified they were told
if they apologized to the Sheriff for their participation in the no-confidence vote, things would get
better for them. Plaintiffs also testified Sheriff Huston told them he thought the problems were on
third shift where there were strong union members and he would “hire six ball breakers from the
streets if he had to straighten them out.” Finally, Defendants concede Sheriff Huston made the
policy decision to reorganize the jail command, which had the effect of demoting the officers in
the sergeant position by eliminating the position and requiring the officers to apply for a non-union
position in order to retain their job duties. In light of this evidence, Defendants’ motion for
summary judgment on Monell liability is DENIED.
V.
Defendant Lower is Entitled to Summary Judgment;
Defendants Helm, Roth, and Ulrich are not
As previously discussed, Plaintiffs have submitted sufficient evidence to demonstrate they
were speaking as private citizens on matters of public concern when they participated in the noconfidence vote and supported Ron Davis in the 2010 Sheriff’s election. Plaintiffs have also
adduced sufficient evidence to demonstrate the balancing of interests weighs in their favor and that
they suffered deprivations likely to deter their protected speech. If the employee has been found
to have engaged in constitutionally protected speech and suffered a deprivation likely to deter that
speech, the court then moves on to the final, “motivating factor” requirement. At the summary
judgment phase, Plaintiffs’ burden is to simply demonstrate there is a genuine issue of material
fact on the question of causation.
Here, Plaintiffs have proffered sufficient evidence to demonstrate there is a genuine issue
of material fact as to whether Defendants Helm, Roth, and Ulrich retaliated against them for their
protected activity. However, Plaintiffs have failed to proffer similar evidence that demonstrates a
31
genuine issue of material fact exists as to whether Defendant Lower retaliated against them for the
same protected speech. All Defendants concede they knew about Plaintiffs’ participation in the
no-confidence vote, and Defendants were in positions of power/influence where they could
implement action that was detrimental to Plaintiffs. While Defendants Helm, Roth, and Ulrich
assert valid reasons for their behavior toward Plaintiffs, a reasonable jury could conclude
Defendants’ proffered reasons were pretext based on the evidence that suggests otherwise.
A.
Jail Superintendent Earl Helm
Superintendent Earl Helm was hired by Tazewell County as a correctional officer in 1981,
and was promoted to sergeant in 1990. (Helm Dep. at 10.) Helm was named Jail Superintendent
in December 1999 and served in that capacity until his retirement on March 1, 2013. (Id. at 9-10.)
As Jail Superintendent, Helm was involved in the selection process for the Field Training Officer
position and testified it was his ultimate decision as to which officers would be FTOs.
(Id. at 41-43.) Helm also testified he took part in assigning officers to the classification officer
position (id. at 69), and was involved in the decision to remove Moretto from the position in 2011
(id. at 70-73.)
Helm testified he heard about the results of the no-confidence vote on the day of the vote,
but he does not recall how. Defendant Ulrich testified that the day after the vote, he spoke to Helm
about the vote results. Ulrich also testified he told Helm that Moretto and VanDusen voted in
favor of no-confidence and he (Ulrich) voted against it. Helm also testified he had second-hand
knowledge of the correctional officers who supported Ron Davis in the election. (Id. at 23.)
Michelle Moretto testified Superintendent Helm and Ulrich retaliated against her by
removing her from a classification position and reassigning her as a pod officer in May 2011.
(Moretto Dep. at 48.) On May 16, 2011, Helm posted a sign-up sheet for officers interested in the
32
classification officer assignment. (MSJ, ¶ 191.) Moretto testified Helm did not post the sign-up
sheet until she informed him she was filing a grievance against him for not posting the position.
(ECF No. 158-1, ¶ 4.) Moretto also testified prior to the May 16, 2011, posting, Helm had already
picked Lindsey Rogers for the position. (Id.)
Aleisha Karrick also testified she told Helm she was not comfortable taking Moretto’s
position as classification officer and that Helm responded, “they dug their own grave,” in reference
to Moretto and Hostetler being removed from the position. Karrick also testified Helm told her
that “there’s a group of jailers that are driving a bus off a cliff over there and if they’re not careful
they’re going to take you with them.” Karrick added that Helm’s comment to her was made in the
context of pro-Ron Davis comments on her Facebook account before the FOP’s no-confidence
vote. Dawn Hostetler was also reassigned from classification to pod officer in November 2010.
Hostetler was the only classification officer when she was reassigned.
Finally, Helm testified that he and Sheriff Huston had discussions concerning the sergeant
position before the position was eliminated. (Helm Dep. at 48.) Helm also testified that, at the
old jail, sergeants were in the same bargaining unit as the correctional officers and command staff
had a problem with bargaining unit members supervising other bargaining unit members. (Id. at
49-50.) Helm admits the goal was to make the JOS position non-union. (Id. at 50.) Accordingly,
Plaintiffs’ surviving retaliation claims directed at Defendant Helm stand, and his request for
summary judgment is DENIED.
B.
Chief Deputy Jeff Lower
Jeff Lower has been Chief Deputy at the Sheriff’s Department since 2010.
(Lower Dep. at 7.)
Lower volunteered with the Department starting in 1988, joined the
Department as a deputy in 1991, and was promoted to sergeant in 1999 and to patrol captain in
33
2006. (Id. at 7-11.) As Chief Deputy, Lower guides, manages, and directs all the law enforcement
assets for the Department. (Id. at 12-13.) Lower also testified, that since 2010, he has participated
in selecting and interviewing new deputies. (Id. at 17.) Lower stated he heard about the noconfidence vote through the media, and that more than likely, he spoke with Superintendent Helm
and Ulrich about it after the no-confidence vote. (Id. at 30-31.)
As it relates to Chief Deputy Lower, Plaintiffs fail to offer any substantiated evidence
Lower retaliated against them individually for their protected activity. While Lower may have
known about Plaintiffs’ protected activity, there is insufficient evidence in the record for a
reasonable jury to conclude Lower took adverse action against them because of it. In addition,
Plaintiffs concede “[n]one of the Plaintiffs have been on the list or hired as a deputy since 2010
because none of them applied and scored high enough to get in the ‘upper portion of the list’ until
recently,” and categorize the fact as immaterial in their Response. (Resp., ¶ 229, at 95.) The
allegation (even if proven true) that in December 2011, deputies received coats and knives from
Sheriff Huston and correctional officers received nothing, has no impact on the retaliation
allegations at hand. Accordingly, any and all surviving retaliation claims against Chief Deputy
Lower fail, and he is DISMISSED as a Party from this suit.
C.
Deputy Jail Superintendent Bill Roth
Bill Roth was hired as a Jail Operations Supervisor at the Sheriff’s Department in March
2012. (Roth Dep. at 6.) Roth was promoted to Deputy Jail Superintendent in March 2013, and
retired in November 2015. (Id. at 19-20.) Roth testified he learned of the no-confidence vote from
correctional officers while he was working third shift as a JOS. (Id. at 23.) Roth also testified it
was possible officers Moretto, VanDusen, and Hostetler complained to him that they were demoted
or removed from their previous positions because of their participation in the 2010 no-confidence
34
vote. (Id. at 25-26.) Roth testified he “might have had a conversation with Kurt Ulrich . . . . and
it’s possible [he] could have had a conversation with the sheriff also” about their complaints.
(Id. at 26.) Roth stated that in his command role at the jail, he did not have the authority to hire or
fire any of the correctional officers. (Id. at 42, 51.) However, Roth did testify he had input as to
whether an officer would receive a Field Training Officer designation, and he would deliver his
input to Ulrich and Sheriff Huston. (Id. at 107.)
As it relates to Deputy Jail Superintendent Roth, Plaintiffs have proffered sufficient
circumstantial evidence for a fact-finder to conclude their participation in protected activity was a
“motivating factor” for the alleged retaliatory action Roth took against them. Moretto testified
Roth told her he was brought in “to straighten us out, to eliminate the union meetings.” (Moretto
Dep. at 82.) Karrick testified her “job became a lot harder” after she told Sheriff Huston she voted
“no confidence because it needed to change.” (Karrick Dep. at 91.) Specifically, Karrick alleges
“that was when Roth started following me around and staring at me all of the time.” (Id. at 92.)
Karrick contends her participation in the no-confidence vote was the reason behind Roth treating
her differently. (Id. at 100.) Finally, at least six Plaintiffs testified Roth made comments to them
to the effect, “if they apologized for their participation in the no-confidence vote, things would get
better for them.” (See supra, pp. 9-17.) At the summary judgment phase, even if rebutted by the
Defendant, the issue of whether Superintendent Roth retaliated against Plaintiffs because of their
protected speech must go to a jury. Accordingly, Plaintiffs’ retaliation claims related to their
participation in the no-confidence vote that are directed at Defendant Roth stand, and his request
for summary judgment is DENIED.
35
D.
Deputy Jail Superintendent Kurt Ulrich
The Sheriff’s Department hired Kurt Ulrich as a correctional officer in 1987.
(Ulrich Dep. at 10.) Ulrich was promoted to the position of sergeant in 1990, and was again
promoted to Deputy Jail Superintendent in January 2012. (Id.) Ulrich took over Superintendent
Helm’s position when Helm retired. (Id. at 11.) Ulrich testified he was aware of Plaintiffs’
participation in the no-confidence vote, as he was present at the meeting when the vote was taken.
(Id. at 75.) Ulrich also testified he recalls Steve VanDusen standing up and speaking at the
meeting, but he does not remember what he said. (Id. at 77.) Ulrich testified he remembers the
vote being taken by a show of hands and that VanDusen and Moretto raised their hands in favor
of no-confidence against the Sheriff. (Id. at 77-79.) Ulrich stated he was upset about the vote
against the Sheriff because “Sheriff Huston has done a lot for us. He is the reason we were in the
building we were in, the jail. He got everything passed, the tax to get that – the funds for the
facility. And I . . . feel like I had a good work environment. I was happy there.” (Id. at 79.) Ulrich
testified he voted against the no-confidence vote (i.e., for the Sheriff). (Id. at 80.)
Ulrich also testified he spoke with Superintendent Helm the day after the vote. (Id. at 82.)
Ulrich testified he told Helm how Moretto and VanDusen voted, and that he also told Helm he
voted for the Sheriff. (Id. at 83-84). Ulrich testified he heard some of the officers supported Ron
Davis in the 2010 Sheriff’s election, but the information he received was secondhand. (Id. at 86.)
Ulrich also testified, as a sergeant, he was involved in the process of deciding which officers would
become Field Training Officers. (Id. at 119.) Ulrich testified when he became a Deputy Jail
Superintendent, he would have the final call as to who would become an FTO. (Id. at 121.)
Rebecca Melloy testified she has been passed over for an FTO position numerous times
since 2010. Melloy also testified that Superintendent Ulrich and/or the Sheriff most likely decided
36
whether she should receive that position. (Melloy Dep. at 61.) Ulrich testified he remembers
Melloy being a candidate for an FTO position, and that some of his commanders were not
comfortable with her in that position. (Ulrich Dep. at 126-27.) Ulrich testified two commanders in
particular were not comfortable with Melloy in the position, but the commanders did not bring
more specific concerns to his attention regarding her candidacy. (Id. at 127.) Aleisha Karrick also
testified she heard Ulrich use the terms “problem children, troublemakers, or union radicals” to
describe some of the Plaintiffs. (Karrick Dep. at 128.) Finally, Ulrich testified he had multiple
conversations with Superintendent Helm and Sheriff Huston regarding the reason(s) for creating
the Jail Operations Supervisor position. (Id. at 41-42.) Ulrich stated the conversations took place
in the Sheriff’s Office (id. at 42), and that Helm and Huston were talking about making a nonunion
position because they were unhappy with the sergeants’ actions (id. at 44).
As it relates to the claims against Superintendent Ulrich, Plaintiffs have adduced sufficient
evidence to demonstrate there is a genuine issue of material fact on the question of causation.
Melloy, for example, claims she was denied an FTO position because of her participation in the
no-confidence vote. Melloy indicates it was Ulrich who made the decision to reject her as an
applicant. Ulrich claims he made the decision to deny Melloy an FTO position, but it was only
because two of his commanders failed to endorse her. Therein lies a factual dispute for a jury to
decide. There is also sufficient circumstantial evidence in the record for a reasonable jury to
conclude Superintendent Ulrich’s reasons for denying Melloy the position were pretext and that
he unlawfully retaliated against her (at least in part) because of her participation in protected
speech. Accordingly, the Court cannot grant summary judgment to Superintendent Ulrich, and he
remains a Defendant in this case.
37
VI.
Defendants’ Retaliatory Conduct Constitutes a Continuing Violation
The Seventh Circuit “has consistently held that the limitations period applicable to § 1983
actions brought in Illinois is the two-year period for general personal injury actions[.]”
Woods v. Ill. Dep’t of Children & Family Services, 710 F.3d 762, 766 (7th Cir. 2013). “Generally,
the statute of limitations clock begins to run on First Amendment retaliation claims immediately
after the retaliatory act occurred.” Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016).
However, “[w]hen a plaintiff alleges that [unlawful conduct] is leading to an ongoing harm, [she]
can ‘reach back to its beginning even if that beginning lies outside the statutory limitations period,
when it would be unreasonable to require or even permit [her] to sue separately over every incident
of the defendant’s unlawful conduct.’” Cesal v. Moats, 851 F.3d 714, 722 (7th Cir. 2017) (quoting
Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001)). In such a case, the statute of limitations
“starts to run (that is, the cause of action accrues) from the date of the last incidence of that
violation, not the first.” Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013).
Although Plaintiffs fail to allege any hostile environment claims, the retaliation claims that
survive summary judgment share important characteristics with actionable hostile environment
ones. Here, the Court adopts much of the reasoning outlined by the Supreme Court in National
Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), to demonstrate its decision.
Both hostile work environment and retaliation claims may consist of repeated unlawful activity
which may occur over a series of years. Additionally, in direct contrast to discrete discriminatory
acts, a single act of retaliation may not be actionable on its own. In the case at hand, Plaintiffs’
claims are based on the cumulative effect of individual acts of retaliation. See Bart v. Telford,
677 F.2d 622, 625 (7th Cir. 1982) (holding a campaign of petty harassment is sufficient to deter
the exercise of free speech). As such, the protected activity in which Plaintiffs participated is not
38
too remote in time to be barred by the statute of limitations under the continuing violation doctrine.
Defendants’ largely unsupported argument 9 that Plaintiffs’ claims are barred because the alleged
retaliatory conduct consisted of discrete discriminatory acts fails as a matter of law, and their
motion on this basis is DENIED.
VII.
Defendants are Not Entitled to Qualified Immunity
Defendants also argue they are entitled to qualified immunity, but limit their argument to
Plaintiffs’ grievance activity. (MSJ at 100.) Defendants contend “Plaintiffs cannot be allowed to
hamstring management of the jail just by complaining,” and cite the Second Circuit’s decision in
Lynch v. Ackley, 811 F.3d 569 (2nd Cir. 2016), as being dispositive of the issue. (Id. at 100.)
While Defendants’ arguments may have merit, the First Amendment retaliation claims that survive
summary judgment are more straightforward. Additionally, Defendants’ fail to address Plaintiffs’
political activity in their qualified immunity analysis. As such, the Court finds Defendants are not
entitled to qualified immunity as it relates to Plaintiff’s participation in the October 7, 2010, noconfidence vote and their support of Ron Davis in the Sheriff’s election.
“Qualified immunity is, as the term implies, qualified.” Sornberger v. City of Knoxville,
Illinois, 434 F.3d 1006, 1014 (7th Cir. 2006). “It contemplates instances in which a public
official’s actions are not protected because the official knew or should have known he was
violating an individual’s constitutional rights.” Id. (citing Butz v. Economou, 438 U.S. 478,
506 (1978)). The qualified immunity analysis involves a two-part inquiry. Volkman v. Ryker,
736 F.3d 1084, 1090 (7th Cir. 2013). “The first question is whether the defendants’ conduct
violated a constitutional right.” Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “The second
question is whether that particular constitutional right was ‘clearly established’ at the time of the
9
See MSJ at 78-81.
39
alleged violation.” Id. Whether the right was clearly established at the time of the alleged violation
is typically a question of law. Estate of Williams by Rose v. Cline, 902 F.3d 643, 649 (7th Cir.
2018) (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).
Defendants fail to elucidate any argument as to how qualified immunity shields them from
liability from the surviving claims. (See generally, MSJ at 99-100.) The Court has also determined,
construing the facts and inferences in the light most favorable to Plaintiffs, a reasonable jury could
find Defendants violated Plaintiffs’ constitutional rights. Moreover, in 2010, the law was clear
that it was illegal to retaliate against a public employee because of his or her engagement in
constitutionally protected speech. See Connick v. Myers, 461 U.S. 138, 142 (1983) (“For at least
15 years, it has been settled that a state cannot condition public employment on a basis that
infringes the employee’s constitutionally protected interest in freedom of expression.”). The law
has also been clear that voting and political activity, in particular, constitute protected speech.
See Elrod v. Burns, 427 U.S. 347, 355 (1976) (reasoning that conditioning employment on political
activity pressures employees to pledge political allegiance to a party with which they prefer not to
associate, to work for the election of political candidates they do not support, and to contribute
money to be used to further policies with which they do not agree). Defendants have conceded as
much in their testimony. (See, e.g., Huston Dep. at 156). Therefore, Defendants’ motion for
summary judgment on the basis of qualified immunity is DENIED.
VIII. Supplemental Jurisdiction over Plaintiff’s State Law Claim
Although not addressed in Plaintiffs’ Second Amended Complaint, or Defendants’
summary judgment motion, this Court declines to exercise supplemental jurisdiction over
Plaintiff’s state law discrimination claim under the Illinois Human Rights Act. “[T]he issue
whether [supplemental] jurisdiction has been properly assumed is one which remains open
40
throughout the litigation.” United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). To exercise
supplemental jurisdiction, the state and federal claims must derive from a common nucleus of
operative fact,” such that “the relationship between [the federal] claim and the state claim permits
the conclusion that the entire action before the court comprises but one constitutional case.” Id.
Here, Plaintiffs’ retaliation claims pursuant to section 1983 clearly fall within the Court’s
original jurisdiction. However, Plaintiff Mehrzad’s state law discrimination claim does not derive
from the same nucleus of operative facts as do Plaintiffs’ surviving retaliation claims. Mehrzad
began work as a full-time correctional officer at the Tazewell County Sheriff’s Department in
March 2013, nearly two and a half years after the 2010 no-confidence vote and Sheriff’s election.
Moreover, Mehrzad’s pregnancy discrimination claim centers around her January 2015 light-duty
request, which has no substantiated connection to the aforementioned protected speech or
retaliation thereof. Finally, were the Court to exercise supplemental jurisdiction over her state law
claim, it would need to conduct two separate trials to address the legal and factual differences
among Plaintiffs’ retaliation claims and Mehrzad’s pregnancy discrimination claim. Accordingly,
the Court declines to exercise supplemental jurisdiction over Mehrzad’s claim, and it is hereby
DISMISSED WITHOUT PREJUDICE.
CONCLUSION
For the reasons stated herein, Defendants’ Second Amended Motion for Summary
Judgment is GRANTED IN PART AND DENIED IN PART. Defendants’ Motion is GRANTED
as to Plaintiffs’ First Amendment retaliation claims based on grievance activity and as to any and
all claims against Defendant Jeff Lower. Defendants’ Motion is DENIED with respect to
Plaintiffs’ retaliation claims based on their participation in the October 7, 2010, no-confidence
vote and Plaintiffs’ political support of Ron Davis in the 2010 Tazewell County Sheriff’s election.
41
The Court declines to exercise supplemental jurisdiction over Plaintiff Mehrzad’s pregnancy
discrimination claim, and it is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to
terminate Plaintiffs Hutton, May, Mehrzad, Strunk, and Vicary, and Defendant Lower as Parties
in this matter. The Court will contact the remaining Parties to schedule the final pretrial conference
and jury trial for this cause.
ENTERED this 19th day of February 2019.
/s/ Michael M. Mihm
Michael M. Mihm
U.S. District Court Judge
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