Hagan et al v. Quinn et al
Filing
8
OPINION: Defendants' motion to dismiss is granted in part and denied in part ( 4 ). Plaintiffs' Count I is dismissed for failure to state a federal claim. The Court declines to exercise jurisdiction over Plaintiffs' Count II. Accordingly, Count II is dismissed, without prejudice. This case is closed. The clerk is directed to enter a judgment pursuant to Federal Rule of Civil Procedure 58. Entered by Judge Sue E. Myerscough on 3/23/2015. (MJ, ilcd)
E-FILED
Monday, 23 March, 2015 09:47:10 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KATHLEEN A. HAGAN, JOSEPH
V. PRIETO, RICHARD A.
PETERSON, and GILBERTO
GALICIA,
Plaintiffs,
v.
PATRICK J. QUINN, JEROME
STERMER, and VELISHA
HADDOX,
Defendants.
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13-3357
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on the Motion to Dismiss
Plaintiffs’ Complaint filed by Defendants Patrick J. Quinn, Jerome
Stermer, and Velisha Haddox. Defendants’ Motion to Dismiss is
GRANTED as to Plaintiffs’ federal claim. As a matter of law,
Plaintiffs’ lawsuit to protect their jobs was not constitutionally
protected speech. In any event, Defendants are entitled to qualified
immunity from damages. Further, the Court declines to exercise
supplemental jurisdiction over Plaintiffs’ state law claim.
Page 1 of 19
I. BACKGROUND
A.
Plaintiffs’ Underlying Lawsuit
Plaintiffs Kathleen Hagan, Joseph Prieto, Richard Peterson,
and Gilberto Galicia are former arbitrators of the Illinois Workers’
Compensation Commission. According to Plaintiffs, many Illinois
media outlets published articles in 2011 suggesting there were
problems with the Illinois workers’ compensation system, and the
media coverage generated significant public interest on the subject
that eventually prompted action at the Illinois General Assembly.
(Compl. ¶¶ 11–12.) In addition, various individuals and interest
groups directly contacted members of the General Assembly and the
Governor to voice concerns about the workers’ compensation
system, ultimately leading to the enactment of Public Act 97-18.
(Compl. ¶ 14.)
On June 28, 2011, Governor Quinn signed Public Act 97-18
into law. The Act provided several changes to the workers’
compensation system, including a provision requiring the terms of
employment of all arbitrators to terminate on July 1, 2011. (Compl.
¶¶ 17, 23.) The Act further provided that all arbitrators shall be
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appointed initially by the Governor.1 (Compl. ¶ 22; see also 820
ILCS 305/14.)
At the time the Act was signed, Plaintiffs were all employed as
arbitrators for the Illinois Workers’ Compensation Commission.
(Compl. ¶¶ 7–10.) On July 12, 2011, Plaintiffs, along with Peter
Akemann, filed a three-count Complaint under 42 U.S.C. § 1983
against the Governor and the Chairman and Commissioners of the
Workers’ Compensation Commission. (Compl. ¶ 20; see also Hagan
v. Quinn, No. 11-CV-3213, 2014 WL 3052631 (C.D. Ill. July 7,
2014) (the “underlying lawsuit” or “underlying complaint”).
Plaintiffs’ underlying complaint comprised three claims. In
Count I, Plaintiffs alleged that the termination of their employment
as provided under Public Act 97-18 deprived them of a property
interest in their jobs without due process of law. Hagan, No. 11CV-3213, 2014 WL 3052631, at *1. Count I sought compensatory
damages and an injunction “prohibiting Defendants from removing
Plaintiffs from their office or from appointing any other person to
Since amended, this provision now authorizes the Governor to
appoint all arbitrators with advice and consent from the Illinois
Senate. See 820 ILCS 305/14.
1
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that office, or from taking any other action in retaliation for the
Plaintiffs’s protection of their civil rights in this cause.” (Underlying
Complaint, p. 7.) Count II sought the same relief, alleging that
Plaintiffs lost their liberty interests in their reputations and good
names without due process of law due to the contents of a press
release issued by Governor Quinn the day he signed Public Act 9718 into law. Id. at pp. 7-9. In Count III, Plaintiffs asked the Court
to declare Public Act 97-18 unconstitutional as to them because the
Act denied them their property interest without due process of law.
Id. at p. 10.
Plaintiffs’ underlying lawsuit was originally assigned to this
Court. This Court denied Plaintiffs’ motion for a preliminary
injunction, reasoning that Plaintiffs had little likelihood of success,
given that the legislative process was all the process to which they
were due before the terms and conditions of their jobs were changed
by legislation. (Underlying lawsuit, 7/29/2011 Order.) However,
this Court did allow the underlying lawsuit to survive a motion to
dismiss for further development of the record. (Underlying lawsuit,
1/19/12 Order.) After reassignment to United States District Judge
Colin S. Bruce, Plaintiffs’ underlying lawsuit was dismissed on
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summary judgment, Judge Bruce concluding that the legislative
process was all the process due Plaintiffs. Hagan, No. 11-CV-3213,
2014 WL 3052631. By that time, Plaintiffs had conceded the
dismissal of their liberty interest claim (Count II). The underlying
lawsuit is now on appeal and has been consolidated with another
appeal from the Southern District which reached the same
conclusion as Judge Bruce. Dibble v. Quinn and Akemann v.
Quinn, Appellate Cases 14-2328 and 14-2746 (7th Circuit).2
B.
The Present Lawsuit
As provided by Public Act 97-18, Plaintiffs continued to work
as incumbent arbitrators, despite the legislative termination of their
terms of employment, until Governor Quinn decided against
reappointing them on October 14, 2011. (Compl. ¶¶ 23, 24.)
Plaintiffs allege that Governor Quinn made this decision in
conjunction with Defendant Stermer, Governor Quinn’s Chief of
Staff, and Defendant Haddox, an advisor to Governor Quinn.
(Compl. ¶¶ 25; see also Compl. ¶¶ 5–6.) According to Plaintiffs,
2
Defendants do not argue that the underlying suit was baseless. See, e.g., Geske & Sons, Inc. v. N.L.R.B., 103 F.3d
1366 (7th Cir. 1997)(“[T]he First Amendment protects only well-founded lawsuits.”); see also Akemann v. Quinn,
2014 IL App (4th) 130867 (“The Illinois Supreme Court has consistently held, ‘[w]here an office is created by the
legislature it is wholly within the power of that body, who may change the length of term or
mode of appointment or abolish the office.”)(citing Higgins v. Sweitzer, 291 Ill. 551, 554, 126 N.E.
207, 208 (1920)).
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“[t]he sole reason that Governor Quinn, Stermer, and Haddox
[decided] to terminate the employment of the Former Arbitrators
was because of the lawsuit that they brought on July 12, 2011.”
(Compl. ¶ 27.)
On October 11, 2013, Plaintiffs filed this two-count Complaint
under 42 U.S.C. § 1983. In Count I, Plaintiffs claim Defendants
violated their First Amendment rights by retaliating against them
for filing the underlying lawsuit. Count II is a supplemental state
law claim for violations of the whistleblower protections in the State
Officials and Employees Ethics Act. 5 ILCS 430/15-5 et seq.
II. JURISDICTION AND VENUE
This Court has jurisdiction over the claim brought under 42
U.S.C. § 1983 in Count I. See 28 U.S.C. § 1331. This Court has
supplemental jurisdiction over Plaintiffs’ state law claim in Count II
because the claim stems from the same transaction or series of
transactions as Count I. See 28 U.S.C. § 1367(a). Venue is proper
in this Court because the events giving rise to Plaintiffs’ claims took
place in the Central District of Illinois. 28 U.S.C. § 1391(b).
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III. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), dismissal is
proper where a complaint fails to state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(b)(6). When considering a motion
to dismiss under Rule 12(b)(6), the Court construes the complaint
in the light most favorable to the plaintiff, accepting all well-pleaded
allegations as true and construing all reasonable inferences in the
plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008). A complaint must set forth facts that plausibly
demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007). Plausibility means alleging factual content
that allows a court to reasonably infer that the defendant is liable
for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. A
complaint that does not allow the court to “infer more than the
possibility of misconduct” is not entitled to relief. Id. Federal Rule
of Civil Procedure 10(c) provides that “[a] copy of a written
instrument that is an exhibit to a pleading is a part of the pleading
for all purposes.” Accordingly, the settled law of the Seventh Circuit
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is that courts evaluating the sufficiency of pleadings at the stage of
a motion to dismiss must consider not only the complaint itself, but
also “documents attached to the complaint, documents that are
critical to the complaint and referred to in it, and information that
is subject to proper judicial notice.” Geinosky v. City of Chicago,
675 F.3d 743, 745 n.1 (7th Cir. 2012).
IV. ANALYSIS
A.
Plaintiffs’ First Amendment Claim: Plaintiffs’ underlying
lawsuit was not protected speech.
To make out a prima facie case for First Amendment
retaliation, a public employee must plausibly allege that “(1) [their]
speech was constitutionally protected, (2) [they] have suffered a
deprivation likely to deter speech in the future, and (3) [their]
speech was at least a motivating factor in the employer’s action.”
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006) (other
citations omitted). At issue here is whether the underlying lawsuit
was constitutionally protected speech.
Generally, a public employee’s lawsuit is protected speech if
the employee is speaking “as a citizen on a matter of public
concern.” Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2501
Page 8 of 19
(2011)(adopting public concern test for both Petition Clause and
Speech Clause); Zorzi v. County of Putnam, 30 F.3d 885, 896–97
(7th Cir. 1994)(“ If a public employee is retaliated against for filing a
lawsuit, the public employee has no First Amendment claim unless
the lawsuit involves a matter of public concern.”). If Plaintiffs’
underlying lawsuit did not involve a matter of public concern, then
the analysis stops. There can be no First Amendment violation
without protected speech. Garcetti v. Ceballos, 547 U.S. 410, 418
(2006).
Defendants do not dispute that Plaintiffs were acting as
citizens and not pursuant to their official arbitrator duties when
they filed the underlying lawsuit. Cf. Garcetti, 547 U.S. at 421
(“[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First
Amendment purposes . . . .”) The question, then, is whether the
underlying lawsuit was a matter of public concern.
Whether Plaintiffs spoke on a matter of public concern is a
question of law requiring the Court to examine “the content, form,
and context” of the speech, on the basis of the record as a whole.
Connick v. Myers, 461 U.S. 138, 147 (1983). In the Seventh
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Circuit, the content of speech is the most important of these three
factors. Delgado v. Jones, 282 F.3d 511, 517 (7th Cir. 2002).
“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 v. Jones, 290 F.3d
895, 907 (7th Cir. 2002). For example, depending on the context
and form, lawsuits about government waste, fraud, and systemic
misconduct can be of public concern. Zorsi v. County of Putnam,
30 F.3d 885, 897 (7th Cir. 1994)(lawsuit that plaintiff was fired for
political speech was a matter of public concern); Auriemma v. Rice,
910 F.2d 1449 (7th Cir. 1990)(reverse discrimination suit by white
police officers was matter of public concern); Chicago United Indus.,
Ltd. v. City of Chicago, 685 F.Supp.2d 791, 813 (N.D. Ill.
2010)(public health, safety and waste of taxpayer funds could be
matters of public concern).
However, a public employee’s speech motivated solely by
private interests is not protected speech, even if the speech is
relevant to a public issue. Kristofek v. Village of Orland Hills, 712
F.3d 979, 986 (7th Cir. 2013)(“‘speech of public importance is only
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transformed into a matter of private concern when it is motivated
solely by the speaker’s personal interests.’” (quoted cite
omitted)(emphasis in original). If the “‘only point of the speech was
‘to further some purely private interest’” or “‘addresses only the
personal effect upon the employee’”, then the speech is not of public
concern for First Amendment purposes. Gustafson v. Jones, 290
F.3d 895, 908 (7th Cir. 2002)(quoted cite omitted).
Yet, that a lawsuit seeks to vindicate a personal interest does
not automatically make the lawsuit solely personal. Every lawsuit
necessarily involves a plaintiff’s personal interests: legal standing
would not exist otherwise. Similarly, seeking personal remedies like
damages or reinstatement does not necessarily mean that the
lawsuit is purely personal. Zorzi, 30 F.3d at 897.
Defendants argue that Plaintiffs’ underlying lawsuit was solely
personal, therefore, not protected by the First Amendment.
Plaintiffs counter that their underlying lawsuit addressed public
concerns regarding legislative reforms to the workers’ compensation
system. Plaintiffs acknowledge that they had personal motives for
filing the underlying lawsuit, but they also assert that they pursued
the suit, in part, because they felt it was “important to, in a public
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forum, hash out concerns that they had regarding the workers’
compensation reforms and to outline that the governor of the State
of Illinois had violated the United States Constitution.” (Compl.
¶ 21.) Plaintiffs also allege that reform of the workers’
compensation system was a subject receiving extensive media
coverage around the time they filed the underlying lawsuit.
In the Court’s opinion, the issue is a difficult one. Zorzi v.
County of Putnam, 30 F.3d 885, 896 (7th Cir. 1994)(“This question
is not always easy, however, as, ‘[m]atters of public concern’ are
rarely so easily discerned.”)(quoted cite omitted). This case does not
easily fit into the cases Defendants cite which hold that a lawsuit by
a single, disgruntled employee is not protected speech. See, e.g.,
Yatvin v. Madison Metropolitan School Dist., 840 F.2d 412 (7th Cir.
1988). Plaintiffs’ underlying lawsuit involves a statutory
constitutional challenge, which, if successful, would have affected
all the arbitrators, not just Plaintiffs.
However, after careful consideration, the Court concludes that
the underlying lawsuit was not speech on a public concern, even
accepting as true Plaintiffs’ allegations that they were motivated by
both public and private concerns.
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Plaintiffs make no reference to public concerns or public
benefit in their underlying lawsuit, nor are any evident. They allege
that the law is unconstitutional only because the law might deprive
them personally of their jobs without procedural due process. They
seek for the law to be held unconstitutional as applied to them. No
allegations of government malfeasance, waste, or fraud are in the
underlying suit. The thrust of the underlying complaint is that the
law was changed to Plaintiffs’ detriment. Neither the “market place
of ideas” nor the “vitality of public debate” would be affected by
concluding that Plaintiffs’ underlying suit was not protected First
Amendment activity. Yatvin v. Madison Metropolitan School Dist.,
840 F.2d 412, 419 (7th Cir. 1988)(“We are as reluctant to federalize
the law of retaliatory dismissal . . . as we are to federalize the law of
public contracts.”).
While the underlying lawsuit may have engendered some
public interest about the worker’s compensation system, that does
not change the character of Plaintiffs’ underlying lawsuit. Nor does
Plaintiffs’ alleged motivation to publicly air worker compensation
issues change the character of the underlying lawsuit. Plaintiffs’
expression of their concern was purely personal—to protect their
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jobs and reputations. Bivens v. Trent, 591 F.3d 555, 561 (7th Cir.
2010)(“‘if the speech concerns a subject of public interest, but the
expression addresses only the personal effect upon the employee,
then as a matter of law the speech is not of public concern.’”)(italics
in original, quoted cite omitted); cf. Zorzi v. County of Putnam, 30
F.3d at 896 (lawsuit “exposed areas of alleged misfeasance in the
running of the Putnam County Sheriff’s Office”).
The Court does not see any potential societal impact from the
underlying lawsuit that might render it a matter of public concern.
See, e.g., Anderer v. Jones, 385 F.3d 1043, 1053 (7th Cir.
2004)(speech and lawsuit about false arrest was not protected
speech, even though plaintiff alleged that he was concerned about
“‘pervasive and systemic’” misconduct of police department). The
Court agrees that legislative reform of worker’s compensation in
Illinois may be a matter of public interest, but the point of Plaintiff’s
underlying lawsuit cannot fairly be said to be about worker’s
compensation reform from a public view standpoint. Nothing about
the underlying lawsuit was “designed to encourage public debate.”
Carreon v. IDHS, 395 F.3d 786, 793 (7th Cir. 2005)(public
employee’s Title VII lawsuit against employer was not protected
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speech). Nothing in the underlying lawsuit “inform[ed] the public
debate on an issue of legitimate interest to the public at the time it
is published.” Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d
370, 381 (7th Cir. 2009)(deputy’s article about sheriff was not
protected speech).
Plaintiffs argue that a ruling on the public concern question is
premature, but Plaintiffs do not explain what further facts are
needed to make the determination. Their underlying lawsuit is
appropriate for judicial notice, and the Court accepts as true
Plaintiffs’ allegations about their motives in bringing the underlying
suit, as well as Plaintiffs’ allegations that they were terminated
because of their underlying lawsuit. The Court already has all the
relevant facts about the “context, form, and content” of the speech
at issue. In short, even accepting Plaintiffs’ allegations as true, as a
matter of law, their underlying lawsuit is not protected speech.3
3
A plausible inference that Plaintiffs were terminated because of their lawsuit is difficult to draw, given that
Plaintiffs do not allege that they were the only arbitrators terminated. However, the Court need not address that
issue or give leave to amend because the underlying lawsuit was not protected speech regardless of the motive
behind the terminations. The Court does note, for curiosity’s sake, that a press release from the Illinois Government
News Network reported that nine sitting arbitrators were not reappointed. www3.illinois.gov/PressReleases (last
visited 3/ 16/15). The four plaintiffs in this suit were part of those nine. John Dibble was also not reappointed, but
he did not file his lawsuit in the Southern District of Illinois until after his termination. Interestingly, one of the
original plaintiffs in the underlying suit, Peter Akemann, was reappointed, according to the press release.
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The Court’s holding is narrow. The Court is not holding that
a lawsuit by a public employee challenging the constitutionality of a
state law is per se unprotected speech. The Court is holding only
that the challenge, as expressed by Plaintiffs in their underlying suit,
is not protected speech.
B. Even if Plaintiffs do state a viable First Amendment
retaliation claim, Defendants are entitled to qualified immunity
from damages.
Qualified immunity shields government officials from suit for
performing discretionary functions unless their conduct violates
“clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). A right is clearly established if “‘every
reasonable official would have understood that what he is doing
violates that right.’” Ashcroft v. al-Kidd, --- U.S. ---, 131 S. Ct.
2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). Abstract statements of law are not enough. Volkman
v. Ryker, 736 F.3d 1084, 1090 (7th Cir. 2013)(“The Supreme Court
has ‘repeatedly told courts ... not to define clearly established law at
a high level of generality,’”)(quoting Ashcroft v. al-Kidd, 131 S.Ct.
2074 (2011). “[E]xisting precedent must have placed the statutory
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or constitutional question beyond debate.” Al-Kidd, 131 S. Ct. at
2083.
Plaintiffs bear the burden of citing the case or cases which
clearly establish that their underlying lawsuit was protected speech.
Chasensky v. Walker, 740 F.3d 1088, 1095 (7th Cir. 2014). They
cite to cases that establish the general proposition that the First
Amendment prohibits retaliation against a public employee for
engaging in protected speech. Plaintiffs cite no case close enough to
this case for the Court to conclude that their underlying lawsuit
was so obviously protected speech that the question was beyond
debate when Plaintiffs were terminated.
Whether the underlying lawsuit was protected speech is
arguably debatable, in the Court’s opinion, which means that
qualified immunity is warranted. Zorzi and Auriemma may fall on
Plaintiffs’ side; Yatvin, Andover, Carreon and other cases may fall
on Defendants’ side. However, none are directly on point or close
enough to clearly establish that the underlying lawsuit was
protected speech. In short, a reasonable official would not have
known beyond debate that Plaintiff’s underlying lawsuit was
protected speech.
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Qualified immunity does not defeat a claim for injunctive
relief, as Plaintiffs point out. The parties do not address whether
the injunctive relief Plaintiffs seek—a job comparable to their prior
jobs—could still be awarded, given the change in administration.
Therefore, the Court declines to address the issue.
C. With no federal claim remaining, the Court declines to
exercise supplemental jurisdiction over Count II.
In light of the Court’s ruling that Plaintiffs state no federal claim,
the Court declines to exercise supplemental jurisdiction over
Plaintiffs’ state law claim (Count II). 28 U.S.C. § 1367(c)(3)(district
courts may decline to exercise supplemental jurisdiction if “all
claims over which it has original jurisdiction” are dismissed); Kolbe
& Kolbe Health & Welfare Benefit Plan v. Medical College of
Wisconsin, 657 F.3d 496, 505 (7th Cir. 2011)(state supplemental
claims usually dismissed without prejudice if all federal claims as
dismissed before trial).
IT IS ORDERED:
(1) Defendants’ motion to dismiss is granted in part and
denied in part (4).
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(2) Plaintiffs’ Count I is dismissed for failure to state a federal
claim.
(3) The Court declines to exercise jurisdiction over Plaintiffs’
Count II. Accordingly, Count II is dismissed, without
prejudice.
(4) This case is closed. The clerk is directed to enter a
judgment pursuant to Federal Rule of Civil Procedure 58.
ENTER: March 23, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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