Novick v. Staggers et al

Filing 168

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 6/19/2012:Mailed notice(wp, )

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

COREY NOVICK,
Plaintiff,
v.

Case No. 08 C 3733

ROBIN STAGGERS, VICTOR
ROBERSON, DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
and OFFICE OF THE GOVERNOR,

Hon. Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court are the Motions for Summary Judgment by
Defendants

Robin

(“Roberson”).

Staggers

(“Staggers”)

and

Victor

Roberson

For the reasons stated herein, both Motions are

granted in their entirety.
I.

BACKGROUND

Attorney Corey Novick (“Novick”) met Defendants Staggers and
Roberson when all three worked on the first gubernatorial campaign
of Rod Blagojevich.

Roberson was the Deputy Campaign Manager,

having been a part of the campaign since its inception in 2000.
Novick was the Director of Field Operations in suburban Cook
County.

After Blagojevich won the election in 2002, the three

volunteered to serve on Blagojevich’s transition team.

Novick

interviewed candidates referred for state jobs and made sure to let

Roberson and Staggers know he, too, was interested in a job.

All

three found state jobs after Blagojevich was sworn in.
Roberson worked in the Governor’s Office as a “liaison,” which
he describes as someone who reviewed resumes and forwarded the
suitable ones on to state agencies for their review.

Novick

describes Roberson’s job as finding state government jobs for the
politically connected.

Staggers was hired at the Department of

Children and Family Services (“DCFS”) as the Deputy Director of the
Office of Employee Services.

Novick, after being interviewed by

Staggers and DCFS Director Bryan Samuels (“Samuels”), was hired and
started a

four-year

term

contract

as

the

Office

of

Employee

Services legal advisor on July 1, 2003, reporting to Staggers.
Novick says he mostly did union labor relations work. Staggers, at
least for a time, “oversaw the hiring process” at DCFS.
Staggers Br., Ex. Z, at 22.

Def.

DCFS Director Samuels, who was

ostensibly Staggers’ boss, testified he viewed him as not being
very effective at his job and as someone who created a hostile work
environment for his employees.

Nonetheless, he felt powerless to

discharge Staggers and felt that Novick was protected by the
Governor’s Office.
Around that time, DCFS began receiving federal subpoenas
seeking personnel records as part of an investigation of possible
violations

of

Rutan

v.

Veteran’s Preference Act.

Republican

Party

of

Illinois

and

the

Rutan is, of course, the historic 1990

U.S. Supreme Court decision mandating that only certain public
- 2 -

positions may be based on political affiliation and loyalty. Rutan
v. Republican Party of Ill., 497 U.S. 62 (1990).

The Veteran’s

Preference Act is a state law that gives hiring preference in
public jobs to military veterans.
seq.

330 ILL . COMP. STAT . 55/0.01 et

News of the subpoenas hit the media, and Staggers, Novick and

DCFS’ Chief of Labor Relations Tom Putting (“Putting”) were placed
on paid administrative leave on October 25, 2005 by Samuels.

They

were reinstated on November 15, 2005 by order of the Governor’s
Office.
While Novick was on his paid leave, FBI agents visited him at
his home and asked him questions about state hiring practices,
including questions he says focused on Staggers and Roberson.
Novick talked to investigators twice more after his reinstatement.
He concedes he was questioned about his own involvement in hiring
decisions and, in at least some of the interviews, his own resume
padding.
After

the

leave,

Staggers,

Novick

reassigned to new job titles within DCFS.

and

Putting

were

all

Staggers contends after

this point she had no say in personnel issues, but Novick contends
she continued to be the personnel decision maker.

Novick also

contends Roberson, in the Governor’s Office, had to sign off on all
high-level DCFS employment decisions.

Roberson disputes this,

contending that John Harris, Blagojevich’s Chief of Staff, had
final say, but it seems clear that Roberson was at least in a
position to influence Harris’ decisions.
- 3 -

Novick’s term expired at the end of June 2007.

On June 20,

2007, DCFS was notified that the Governor’s Office it was not
renewing Novick’s term, or the four-year terms of three other DCFS
attorneys:

Debra Dyer (“Dyer”), Sheila Riley (“Riley”) and John

Botner (“Botner”).

Putting, who was not an attorney, had had his

term renewed in 2006.

It is uncontested that Botner was let go

because of performance issues, but the two sides dispute why the
others’ terms were not renewed. Both sides agree Novick’s employee
performance reviews were good.
Staggers and Roberson contend Harris had put a stop to all
term renewals. Novick disputes this, pointing to Putting’s earlier
term renewal.

In any case, the sides agree that after the terms

were not renewed, DCFS Deputy Director of the Office of Employee
Services Michelle Smith (“Smith”) and Classifications Manager Doug
Mathis(“Mathis”) tried to re-write the job descriptions of Riley,
Novick and Dyer to keep them employed at DCFS in “double exempt” or
“at will” positions, a lengthy process.
Riley was moved to a vacant exempt position until a “double
exempt” position for her was approved.

Dyer, who directed all of

the court services for juveniles at Cook County Juvenile Court, was
let go on June 30, 2007 until her “double exempt” position was
ready and she returned in October 2007.
Central Management Services (“CMS”), a state department that
had to sign off on the creation of “double exempt” positions,
refused to even forward to the Governor a request for such a
- 4 -

position for Novick.

Staggers and Roberson say it was because

Novick’s position did not have enough subordinates reporting to it;
Novick contends this is unsupportable hearsay.
Both sides agree that DCFS tried other routes to keep him
employed,

such

as

having

his

position

declared

exempt

by

categorizing it as “wholly professional,” but CMS shut this down
too.

(The parties do not explain what “wholly professional”

means.) DCFS also investigated making Novick’s position exempt due
to being federally funded, but as that was not true, this avenue
failed too.
Finally, DCFS created a lower-level, lower-paying position for
which it intended to submit Novick’s name.

The new DCFS director,

Erwin McEwen (“McEwen”), supported this and wanted to place Novick
in the position.
Office.
the

CMS approved the position, as did the Governor’s

But in an informal conversation with either Roberson or

Governor’s

Deputy

Director

Louanner

Peters

(McEwen

can’t

remember which), McEwen learned that Novick “didn’t have any
support up there” in the Governor’s Office.
78-81.

Def. Staggers Ex. BB,

McEwen took this to mean that it would be futile to

continue trying to rehire Novick, and Novick admits McEwen gave up
such efforts in the fall of 2007.
similar

between-the-lines

McEwen also testified he got a

rejection

of

the

rehire

of

another

employee, Addie Hudson and, like Novick, he did not know why the
Governor’s Office did not want her rehired.

- 5 -

Novick admits he did not explicitly tell anyone at DCFS about
his discussions with the FBI until December 2007, when Roberson
asked him specifically if he had been approached, and Novick told
him he had.

But Novick says two conversations he had with DCFS

General Counsel Liz Yore (“Yore”) shortly after returning from his
leave in 2005 would have made it clear to officials at DCFS that he
had been approached by the FBI.

The exact contours of the

conversation are disputed, but both Yore and Novick agree he did
not explicitly mention he had had discussions with the FBI.

Both

agree Yore advised him to retain counsel due to the investigation,
but Novick further contends Yore refused to have DCFS provide one,
saying the hiring improprieties investigation was unrelated to his
job duties.
Novick filed suit against Staggers and Roberson under two
causes

of

action:

42

U.S.C.

§

1983

(for

First

Amendment

retaliation) and for violation of the whistle blower provision of
the Illinois State Officials and Employees Ethics Act.
COMP. 430/15-10.

5 ILL . STAT .

DCFS and the Governor’s Office were originally

Defendants but were voluntarily dismissed by Novick.
II.

LEGAL STANDARD

Summary judgment is appropriate when the movant shows there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.

The Court construes all

facts and makes all reasonable inferences in a light most favorable
to the nonmoving party.

Summary judgment is called for when the
- 6 -

nonmoving

party

is

unable

to

establish

the

existence

of

an

essential element of its case, and on which it will bear the burden
of proof at trial.

Kidwell v. Eisenhauer, No. 11-1929, 2012 U.S.

App.

at

LEXIS

10233,

*16

(7th

Cir.

May

22,

2012)

(internal

citations and quotations omitted).
III.

ANALYSIS

A. First Amendment Retaliation Claim Under 42 U.S.C. § 1983
Defendants fight the First Amendment retaliation claim on
several fronts, contending Novick has no prima facie case of First
Amendment retaliation (attacking all elements of the prima facie
requirements)

and

that

Defendants

are

entitled

to

qualified

First

Amendment

immunity.
1.
To

establish

a

Prima Facie Case

prima

facie

case

of

retaliation, an employee must show that: (1) the employee’s speech
was constitutionally protected; (2) the employee has suffered a
deprivation likely to deter free speech; and (3) the employee’s
speech was a motivating factor in the employer’s decision. Redd v.
Nolan, 663 F.3d 287, 294-295 (7th Cir. 2011).
a.
Defendants

Constitutionally Protected Speech
contend

Novick’s

cooperation

with

federal

prosecutors was not constitutionally protected because he was
speaking as a public employee pursuant to his job duties, not as a
private citizen.

See, generally, Garcetti v. Ceballos, 547 U.S.

- 7 -

410 (2006).

This question is one of law for the Court and boils

down to whether Novick spoke in the capacity of a private citizen
on a matter of public concern.
697, 704 (7th Cir. 2010).

Gross v. Town of Cicero, 619 F.3d
Purely personal grievances do not

qualify as matters of public concern, but the fact that an employee
has a personal stake in the subject matter of the speech does not
necessarily remove the speech from the scope of public concern.
Id.
Here, nothing in Novick’s job duties required him to report
hiring misconduct to outside, federal investigators.
part of his official duties.

It was not

See Trant v. Okla., 426 Fed.Appx.

653, 660 (10th Cir. 2011) (finding a Chief Medical Officer’s report
of misconduct to a supervisory board was in the course of his
duties, but comments about reporting misconduct to the FBI was
protected speech.)

See also, Casey v. W. Las Vegas Indep. Sch.

Dist., 473 F.3d 1323, 1331-1332 (10th Cir. 2007) (ruling a local
Head Start official’s report of misconduct to the regional Head
Start

office

was

within

job

duties,

but

reporting

the

same

misconduct to the Attorney General was protected speech). Nor does
Fairley v. Andrews, as Defendants suggest, command a different
conclusion. Fairley v. Andrews, 578 F.3d 518, 523 (7th Cir. 2009).
In Fairley, the Seventh Circuit noted that the Constitution did not
provide a remedy for reporting illegal acts, but that edict was
given in the context of the employer reporting misconduct acts to
his work superiors, the same situation as Garcetti.
- 8 -

Garcetti, 547

U.S. at 414 (attorney’s memorandum regarding misconduct was to his
superiors).

Here,

the

misconduct

was

reported

to

outside

authorities.
Defendants point to 89 Illinois Administrative Code 430.50,
which requires DCFS employees to cooperate with Office of Inspector
General investigations.

This shows Novick was acting pursuant to

his official duties, they say.

However, that regulation says

nothing about cooperating with federal investigations.

Defendants

also claim that Novick, as a government lawyer, had a duty to
cooperate with investigators.

They cite In re: A Witness Before

The Special Grand Jury, 288 F.3d 289, 293 (7th Cir. 2002).

That

case, however, ruled that in a criminal grand jury proceeding, a
government attorney, who had acted in an attorney-client capacity
with state officials, had to divulge those confidences in spite of
attorney-client privilege because he had a higher duty as the
people’s lawyer.
Here, the Court is not convinced it can extrapolate from that
case to this one, which is not a case about when attorney-client
privilege applies, and Novick was not being asked to divulge DCFS’s
confidences. Rather, Novick was approached not for anything he had
learned in his capacity as an attorney, but merely as someone
working in the office.
The

Court

finds

Novick’s

situation

more

analogous

to

Mastrisciano v. Randle, 569 F.3d 723, 730-731 (7th Cir. 2009)
(superseded on other grounds as stated in Greene v. Doruff, 660
- 9 -

F.3d 975, 977 (7th Cir. 2009)).

There, the Court found that a

prison guard who testified on his day off at a prisoner’s review
board hearing was speaking as a private citizen. Here, in at least
the first interview with investigators, Novick spoke at his home.
Moreover, there is an issue of material fact as to whether he was
on work time when he subsequently spoke to federal investigators,
because Novick has presented evidence that he received permission
from DCFS legal counsel Liz Yore that he could leave work to attend
the

meetings,

so

the

subsequent

interviews

were

potentially

protected speech not rendered in his official capacity as well.
The testimony that DCFS refused to provide Novick with a
lawyer for his interviews with the FBI on the grounds that it was
unconnected to his employment only supports the conclusion that
Novick was speaking as a private citizen.
Lastly, Defendants contend Novick’s speech was not a matter of
public interest because it was motivated by a desire to save his
own skin. Novick had fudged his resume and therefore he cooperated
with investigators to curry favor and avoid any charges against
himself, they say. While Novick clearly had a personal interest in
talking

to

protection.

the

FBI

that

does

not

preclude

First

Amendment

See Gross, 619 F.3d at 704.

Novick’s comments were

not solely about his personal grievances.

To the contrary, Novick

had

no

grievance;

he

was

approached

by

the

FBI.

Moreover,

political patronage hiring improprieties are undoubtedly a matter

- 10 -

of public interest, as the newspaper articles about the federal
investigation cited by Novick show.
b.

Deprivation Likely to Deter Free Speech

Defendants

do

not

seriously

contest

that

DCFS

and

the

Governor’s refusal to rehire Novick was a deprivation likely to
deter free speech.

Defendant Roberson conflates the First and

Fourteenth Amendment by arguing that Novick had no constitutionally
recognized property interest in his job because it was a term
appointment, but offers no case law for the proposition that that
14th Amendment test of what constitutes property is the same test
as what constitutes adverse employment action for purposes of First
Amendment retaliation claims. To the contrary, the Seventh Circuit
has noted the adverse employment action is not as strict as that
required in other employment contexts, such as in Title VII cases.
See Mosely v. Bd. of Educ., 434 F.3d 527, 534 (2006) (noting that
even “‘a campaign of petty harassment’ that includes ‘minor forms
of retaliation’ and ‘false accusations’ can be actionable under the
First Amendment.’”).
have been

Novick’s

While reappointment to a term position not
property

right,

the

Court finds

that the

deliberate derailment of attempts to rehire (particularly where the
evidence

shows

the

DCFS

Director

wanted

him

rehired)

would

certainly be enough to deter a person of “ordinary firmness” from
free speech.

This element is satisfied.

- 11 -

c.

Causation

The requirement that the protected speech was a motivating
factor in the employer’s decision to terminate Novick is where his
case falls apart. As Defendants point out, in order for the speech
to be a factor in the decision, Roberson and Staggers would have
had

to

have

known

investigators.

about

Novick’s

conversations

with

federal

Novick’s points to several pieces of evidence he

says demonstrates this.
First, he points to Putting’s testimony that Roberson, in the
presence of Staggers in October 2007, told Putting that “Corey
[Novick] was not renewed because he made a complaint to the OIG.”
Def. Staggers Ex. JJ, 144.

As discussed above, the OIG (Office of

the Inspector General) is an entirely different ball game from the
FBI, because cooperation with the FBI was not a part of Novick’s
job; cooperation with the OIG was.
OIG

likely

not

being

protected

Aside from any speech to the
speech,

nothing

in

Putting’s

testimony infers that Roberson knew of conversations with the FBI,
around which this Complaint is centered.
Next, Novick claims Putting told him that Roberson told
Putting that Novick was “the cause of all of their problems.”

One

might argue that “all of their problems” might encompass more than
just the OIG comment and might support an inference that Roberson
believed Novick was the cause of the FBI problem as well.

In

addition to this being a somewhat Herculean inference, it fails to
prevent summary judgment because, unfortunately for Novick, Putting
- 12 -

never testified to this “cause of all of their problems” comment,
despite Novick’s attorney repeatedly trying to get him to do so at
deposition.

This comment comes only from Novick, relating what he

remembered Putting telling him about Putting’s conversation with
Staggers and Roberson.

As such, it is inadmissible as hearsay

between Putting and Novick and cannot support Novick’s case on
summary judgment.
Third, Novick maintains that his conversations with DCFS
General Counsel Liz Yore could have tipped off DCFS, Roberson, and
Staggers

off

that

he

had

spoken

to

the

feds.

In

those

conversations, held in approximately December 2005, Yore advised
Novick that he may want to retain criminal counsel.

As Novick

conceded “I don’t think I quite said [to Yore] I talked to [federal
investigators].”

Def. Staggers Ex. UU, at 166.

That Yore offered

this advice is not surprising since Novick, Staggers and Roberson
had recently been suspended after subpoenas seeking their personnel
records arrived at DCFS and media reports surfaced announcing that
high-level administrators at DCFS were under investigation.

The

advice does not support an inference that Yore somehow divined from
this

interaction

that

Novick

had

been

talking

with

federal

investigators; it merely supports an inference that Novick, like
others in the office, was a potential target of the FBI.
Novick points to the fact that he eventually told Roberson he
had

talked

to

the

FBI,

but

this

occurred

in

December

2007,

approximately six months after the contract was not renewed.
- 13 -

By

that point, it was well after DCFS Director Erwin McEwen ended his
attempts to bring Novick back.

Pl.’s Answer to Staggers’ USOF,

¶ 76.
There

is

other

evidence

that

Novick

points

to

(such as

Staggers and Roberson at various points indicating they wanted to
talk to him about things that were going on – but never actually
talking to him), but all of it involves even greater supposition
and speculation, not inferences. “Speculation is not sufficient to
overcome summary judgment.”

Trigillo v. Snyder, No. 03-3241, 2006

U.S. Dist. LEXIS 28598, at *36 (C.D. Ill. May 10, 2006).
Trigillo is a very apt comparison to this case because in
Trigillo, the Plaintiff claimed First Amendment violations after
reporting her state employer, the Department of Corrections, to the
FBI for bid rigging.
not renewed.

Like Novick, Trigillo’s term employment was

The FBI quickly responded to Trigillo’s tip by

raiding the office.

As it coincidentally happened, one of the FBI

agents on the raid was a childhood friend of Trigillo’s who chatted
her up during the raid, causing one of Trigillo’s co-workers to
remark immediately after the raid “My, you were awfully chummy with
the FBI agent.”

Id. at *12.

Still, the Court ruled, this was not

enough to support an inference that Trigillo’s supervisors knew she
was the FBI informant.
finding.

The Seventh Circuit upheld this specific

Trigillo v. Snyder, 547 F.3d 826, 830 (7th Cir. 2008).

If open (albeit veiled) speculation in an office that a
plaintiff is the FBI mole cannot sustain an inference that the
- 14 -

plaintiff’s employer knew her to be the informant, then Novick’s
even more removed proof here must fail as well.

There simply is

not enough evidence that Roberson or Staggers believed Novick was
talking to the FBI.
Because there is no causation demonstrated by Novick, and thus
no prima facie case of a First Amendment violation, the Court does
not reach the alternative theories of Defendants that the prima
facie case fails because Novick’s speech was unprotected as a
policy

maker,

or

because

Pickering balancing test.

Novick

cannot

survive

the

Connick-

See Coady v. Steil, 187 F.3d 727, 732

(outlining history and details of test established by Pickering v.
Bd. of Educ. of Twp. H.S. Dist. 205, 391 U.S. 563 (1968) and
Connick v. Myers, 461 U.S. 138 (1983)).
2.

Qualified Immunity

Alternatively, Defendants are entitled to qualified immunity.
“Qualified immunity protects government officials from liability
for civil
established

damages

if

statutory

their
or

actions

did

constitutional

not

violate

rights

of

‘clearly
which

a

reasonable person would have known.” Surita v. Hyde, 665 F.3d 860,
868 (7th Cir. 2011) (internal citations and quotations omitted).
Analysis of qualified immunity involves two questions: (2) whether
a constitutional right was violated using plaintiff’s version of
the facts, and (2) whether that right was clearly established at
the time.

Id.

- 15 -

The Court has already determined that failing to rehire
someone who would have otherwise been rehired as retaliation for
cooperating with the FBI, in this context, would have been a
violation of the First Amendment.

However, this Court must answer

the second question in the negative.

The Seventh Circuit has

repeatedly stated that to be clearly established, a right must be
specific to the relevant factual content of a cited case and not
generalized.
retaliation

While
for

the

speaking

Tenth
with

Circuit
the

FBI

has
is

made
a

clear

First

that

Amendment

violation, an average reasonable person in this district would look
to the Seventh Circuit for direction on this issue.

The most

factually relevant case is Trigillo, and in that case, the Seventh
Circuit avoided making a decision on that issue.

While the court

in that case definitively stated that Trigillo’s talking to the
Illinois attorney general and the director of a state agency about
procurement improprieties clearly fell within her job description
(and thus was not protected speech), it pointedly left the question
of protection for talking to the FBI alone.

Instead, the court

opted to dispense with that issue because of the lack of evidence
that her employers knew she had talked to the FBI.

Thus the

Seventh Circuit had not clearly ruled such speech protected, and
that could lead a reasonable person to believe the issue was still
open for debate.
Novick’s invocation of Perry v. Sindermann, 408 U.S. 593, 597
(1972) and other cases do not change this.
- 16 -

Those cases came before

the watershed case of Garcetti, which changed the landscape for a
public employee’s protected speech.
clearly

established

at

the

time

Thus, the right was not

Novick’s

employment

was

not

renewed, and the Defendants are entitled to qualified immunity.
B.

Illinois State Officials and Employees
Ethics Act Whistle Blower Protection
1.

Jurisdiction

As a threshold issue, the Court must determine if it has
jurisdiction over this count. Defendants note that, while Illinois
has explicitly waived sovereign immunity in its own courts in
regards to this statute, nothing in the statute indicates lawmakers
meant

to

grant

jurisdiction

to

the

federal

courts.

To

the

contrary, 5 ILL. COMP. STAT. 430/15-25 provides that “[t]he circuit
courts of this State shall have jurisdiction.”

Hosick v. Chi.

State Univ., No. 10-5132, 2011 U.S. Dist. LEXIS 145404, at *21
(N.D. Ill. Dec. 19, 2011).
Novick counters that the lawsuit is also against Roberson and
Staggers in their individual capacities, which is not barred by the
Eleventh Amendment of the U.S. Constitution.

To the extent that

Novick seeks back pay and restitution to his job, these are
remedies that can only be granted by the state and are barred.

But

to the extent he seeks monetary damages from the two individual
defendants,

the

Eleventh

Amendment

provides

no

hurdle.

See

Benjamin v. Ill. Dep’t of Fin. and Prof’l Regulation, et al.,
No. 09-5019, 2011 U.S. Dist. LEXIS 87269, at *28 (N.D. Ill. Aug. 8,
- 17 -

2011) (allowing claim under the Illinois State Officials and
Employees Ethics Act against individual employees to proceed, but
only for damages, not restitution and back pay).

The Court notes,

however, that Seventh Circuit case law on the Eleventh Amendment
decrees that any judgment against Staggers and Roberson would have
to come from their pockets, not the state treasury.

See Kroll v.

Bd. of Trs. of Univ. of Ill., 934 F.2d 904, 907-908 (7th Cir. 1991)
(“A victory in such a suit, however, is a victory against only the
individual defendant; an award of damages may be executed only
against that official’s personal assets.”)
2.

Evidence of Retaliatory Action

While neither party suggests the First Amendment retaliation
framework should be used to judge retaliatory actions under the
State Officials and Employees Ethics Act, it is a matter of logic
that a party cannot retaliate for something it does not know
occurred.

As

discussed

above,

Novick

has

not

presented any

evidence that Defendants knew Novick had cooperated with the FBI.
Accordingly, Novick cannot establish he was retaliated against for
speaking with federal investigators.
Putting’s testimony that Roberson said Novick was not rehired
because

Novick

made

a

complaint

to

the

OIG,

however,

could

establish a whistle blower violation under the statute, because
providing

information

before

any

public

body

conducting

an

investigation is protected conduct. 5 ILL . COMP . STAT . 430/15-10(2).

- 18 -

Putting provided adequate testimony to establish an issue of
material fact regarding whether Staggers and Roberson were the
actual, if not titled, powers regarding hiring and retention at
DCFS.

Roberson’s willingness to announce freely in Staggers’

presence (according to Putting) that Novick had been fired because
of his involvement in the OIG investigation supports an inference
that both Roberson and Staggers believed Novick had cooperated in
the OIG investigation and it was the reason for his firing.
But Roberson points out that the statute carefully defines
“retaliatory action” as “the reprimand, discharge, suspension,
demotion, denial of promotion or transfer, or change in the terms
or conditions of employment of any State employee . . .”
COMP. STAT. 430/15-5.

5 ILL .

Roberson claims the failure to renew a term

employment with a set expiration date is not covered by this
definition.

This appears to be a matter of first impression

untouched by the Illinois Supreme Court or the Illinois Appellate
Courts. Novick does not respond to this argument in any meaningful
way.

He merely offers that it was an “adverse employment action”

as he argued in his First Amendment claim.

Pl.’s Resp. 13.

But the Ethics Act is not the First Amendment, and the statute
does not use the phrase “adverse employment action” anywhere in its
text.

Defendants have raised a legitimate argument as to the

applicability of the statute in this instance and Novick has not
responded in any meaningful way.

“Unsupported and underdeveloped

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arguments are waived.” Merryman Excavation, Inc. v. Int’l Union of
Operating Eng’rs, Local 150, 639 F.3d 286, 291 (7th Cir. 2011).
Where possible, federal courts may choose to resolve a case
without

intruding

on

the

prerogative

interpret their own statutes.

of

Illinois

courts

to

See DeGenova v. Sheriff of DuPage

County, 209 F.3d 973, 977 n.2 (7th Cir. 2000).

Because Novick

provided no meaningful response to Defendant’s argument that the
statute does not apply, the Court deems Novick waived the argument
that the statute applies in this instance, and summary judgment on
the count is granted.
IV.

CONCLUSION

For the reasons stated herein, summary judgment on behalf of
the Defendants is granted on all Counts.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: June 19, 2012

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