Novick v. Staggers et al

Filing 183

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 12/20/2012: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 and VICTOR
ROBERSON, ILLINOIS DEPARTMENT
OF CHILDREN & FAMILY SERVICES
and the OFFICE OF THE
GOVERNOR,

Hon. Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is the Plaintiff’s Motion to Alter or Amend
the June 19, 2012 Judgment under Federal Rule of Civil Procedure
59(e).

Although the Court re-examines portions of its earlier

ruling, and reaches a different conclusion in regards to whether a
prima facie case was established, it ultimately denies the Motion
for Reconsideration because qualified immunity still dictates that
summary judgment be granted in favor of Defendants.
I.

BACKGROUND

The Court presumes the reader’s familiarity with its June 19,
2012 opinion and will not repeat in detail the background recited
there.
attorney

To summarize, Plaintiff Corey Novick (“Novick”) was an
for

the

Illinois

Department

of

Children

Services (“DCFS”), employed under a four-year contract.

and

Family

Defendant

Robin Staggers (“Staggers”) held various positions at DCFS and at
least some testimony indicates she had control over DCFS hiring and
firing decisions when Novick’s position was not renewed at the end
of June of 2007.

Defendant Victor Roberson (“Roberson”) worked in

the Office of the Governor (“OG”) and testimony indicates he had,
at a minimum, the ability to influence hiring at DCFS and whether
Plaintiff’s employment was renewed.
Plaintiff contends his employment contract was not renewed
because he cooperated with FBI agents who approached him while
investigating possible hiring improprieties at DCFS.

He alleges

First Amendment retaliation in violation of 42 U.S.C. § 1983 and
violation of Illinois’ State Officials and Employees Ethics Act.
5 ILL. COMP. STAT. 430/15-10.
This Court granted summary judgment for Defendants in its
June 19, 2012 opinion.

Plaintiff seeks reconsideration under

Federal Rule of Civil Procedure 59(e).
II.

LEGAL STANDARD

“[R]econsideration is appropriate in limited circumstances,
such as where (1) the court has patently misunderstood a party; (2)
the court has made a decision outside the adversarial issues
presented to the court by the parties; (3) the court has made an
error not of reasoning but of apprehension; (4) there has been a
controlling or significant change in law; or (5) there has been a
controlling or significant change in the facts.”

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Citadel Group

Ltd. v. Wash. Reg’l Med. Ctr., No. 07-1394, 2011 U.S. Dist. LEXIS
50894,

at

*5

(N.D.

Ill.

May

12,

2011)

(internal

citations,

quotations and ellipses omitted).
III.
A.

ANALYSIS

First Amendment Retaliation Claim

1. Evidence of Causation Regarding Events
Prior to December 2007
Because Plaintiff admitted he never told Defendants (or anyone
who could have communicated with Defendants) of his speech to the
FBI until a December 2007 conversation with Roberson (six months
after his contract expired and he left DCFS), the Court ruled there
was no evidence of causation to establish a prima facie case of
First Amendment retaliation.

Novick v. Staggers et al., No. 08-

3733, 2012 U.S. Dist. LEXIS 84256, at *16 (N.D. Ill. June 19,
2012).
Plaintiff again argues that based on events occurring before
that December 2007 conversation, it would be reasonable to infer
that Staggers and Roberson believed Novick was cooperating with the
FBI.

The Court addressed all of these arguments in its prior

ruling and Plaintiff advances none of the Citadel justifications
for reconsideration of this topic.

Instead, he merely argues the

Court did not view the evidence in its “entirety.”
Recons. 3.

Pl.’s Mot. for

Even if correct, this would be an error of reasoning,

not of apprehension, and is not grounds for reconsideration.

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Caisse Nationale De Credit Agricole v. CBI Indus., 90 F.3d 1264,
1270 (7th Cir. 1996) (“Reconsideration is not an appropriate forum
for rehashing previously rejected arguments.”).
2.

Evidence of Causation Regarding Events
during and after December 2007

Plaintiff’s argument concerning the causation evidence around
events during and after December 2007 deserves a closer look,
however.

Essentially, he argues the Court did not apprehend key

facts presented in Plaintiff’s summary judgment response.

Those

key facts missed by the Court, Plaintiff contends, were that
Plaintiff continued his efforts to be rehired after the critical
December 2007 conversation between Novick and Roberson (where it is
undisputed that Novick told Roberson he had spoken with the FBI).
Also, Plaintiff claims, the Court misapprehended that the timing of
DCFS’ refusal to submit Novick’s name for a position created
specifically for Novick occurred approximately the same time as the
Novick-Roberson FBI conversation.
Unlike merely rehashing old arguments, a contention that there
was

a

misapprehension

reconsideration.
Upon

of

fact

is

a

valid

reason

response,

the

for

See Citadel, supra.

re-examination

of

Plaintiff’s

Court

concludes that there were such facts included in his response to
the motions for summary judgment.

Although these post-December

2007 facts were not highlighted (evidently because Plaintiff had
great faith in his argument that pre-December 2007 events supported
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the inference that Defendants knew of Plaintiff’s conversations
with the FBI), Plaintiff did argue and cite the fact that “The
Office of Management and Budget approved the Position [created
specifically for Plaintiff] on November 28, 2007.”

Novick’s Resp.

to Victor Roberson’s . . . Mot. for Summ. J., 4, ECF No. 147.
Plaintiff pointed out that after the position was approved, DCFS
employee

Michelle

Smith

(“Smith”),

sought

approval

to

submit

Plaintiff’s name to fill that position, but was refused.

Pl.’s

Resp. to the Office of the Governor’s and Victor Roberson’s Local
Rule 56.1 Statement of Uncontested Facts (the “SOUF”), 16, ¶ 74,
ECF No. 148.
While

Smith

could

not

remember

an

exact date

when

such

permission was refused, it would have been after November 28, 2007,
and it could be reasonable for a jury to infer that such refusal
overlapped or came after the Roberson-Novick December conversation
about the FBI.
There was testimony that Roberson and Staggers were close and
communicated constantly, and Smith testified that permission to
place Novick in the position created for him was denied by either
the DCFS Director Erwin McEwen or Defendant Staggers.

Defs.’

Office of the Governor and Victor Roberson’s L.R. 56.1 SOUF,
Ex. EE, 57, ECF No. 131-13.
unreasonable

for

a

jury

to

Thus, it would not be completely
conclude

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Roberson

and

Staggers

communicated about Novick’s discussions with the FBI, and that
Staggers blocked submission of the name for the position.
Defendants point out that mere knowledge of a plaintiff’s
protected speech is not enough to demonstrate causation. See Healy
v. City of Chicago, 450 F.3d 732, 741 (7th Cir. 2006) (“[M]ere
knowledge of the plaintiff’s protected activity prior to an adverse
employment action does not establish a retaliatory motive.”).
While that is correct, if a jury were to credit the testimony
of DCFS Chief of Labor Relations Tom Putting, that could support a
retaliatory inference.

To recap, Putting testified that Roberson,

in his and Staggers’ presence, told Putting that “Corey [Novick]
was not renewed because he made a complaint to the OIG [Office of
the Inspector General].”
Roberson

and

Staggers

This occurred in October 2007.
would

not

retain

Novick

at

DCFS

If
in

retaliation for a complaint to the OIG, a jury might reasonably
infer that they would also fail to submit his name to fill the
position DCFS director Erwin McEwen had created specifically for
Novick, and that they would do so in retaliation for communication
with the FBI.
(As an aside, the Court notes that in its initial ruling, it
determined that cooperation with the OIG was within Novick’s job
duties.

Additionally, Plaintiff argued it was the retaliation for

communication with the FBI that violated the First Amendment; he

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did not argue retaliation for the perceived communication with the
OIG violated the First Amendment.)
Moreover, Plaintiff correctly points out that his summary
judgment response indicated his attempts to be rehired continued in
and after his December 2007 conversation with Roberson in which he
revealed his FBI discussions.

Roberson himself testified that

efforts to rehire Novick at other agencies continued after that
December 2007 conversation.
Further supporting the case for retaliation is the fact that
similarly situated employees were treated differently from Novick.
Massey

v.

Johnson,

(“Circumstantial

457

proof,

F.3d

such

as

711,
the

717

(7th

timing

of

Cir.

events

2006)
or

the

disparate treatment of similar individuals, may be sufficient to
establish the defendant’s retaliatory motive.”).

Three other DCFS

attorneys did not have their term appointments renewed, yet all of
them found continued employment with DCFS or other state agencies.
Sheila Riley was moved to a vacant exempt position until a
“double exempt” position was created for her.

Debra Dyer, like

Novick, was actually let go from DCFS at the end of June 2007.

But

unlike Novick, DCFS found a way to bring her back a few months
later.

John Botner’s DCFS term (ending January 11, 2008) was not

renewed because of performance issues, but he managed to find
employment with another state agency.
Defendants

that

Plaintiff’s

citations

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The Court agrees with
to

the

record

do

not

explicitly establish that it was the Office of the Governor or
Roberson who arranged or approved of the Botner hire elsewhere, but
testimony suggests that Roberson had heavy influence, if not
control, of hiring at the other state agencies.
Plaintiff also produced testimony that DCFS hired a number of
attorneys in 2007 and 2008 and Plaintiff was not considered for
those positions.

This creates a factual issue as to whether

Roberson (who Novick alleges promised to have him re-employed by
Christmas

2007)

changed

his

communications with the FBI.

mind

upon

discovering

Novick’s

It also creates an issue of material

fact as to whether Staggers retaliated for the FBI speech by
blocking the submission of Novick’s name for the position that had
already been created and approved by the governor’s office.

Thus,

in light of apprehension of the previously unemphasized facts
regarding the timing of the refusal to submit Novick’s name for his
tailor-made

position

in

proximity

to

his

conversation

with

Roberson, and in apprehension of the previously unemphasized facts
regarding Novick’s continued efforts to regain employment after the
conversation with Roberson, the Court reconsiders and finds that a
prima facie case of First Amendment retaliation exits.
The Court acknowledges that the issue of causation is a close
one,

but

given

the

Seventh

Circuit’s

admonition

that

direct

evidence of unlawful retaliation is rarely present (Massey, 457
F.3d at 717), the Court finds enough circumstantial evidence that

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could support a reasonable jury’s finding that, once Roberson
learned of the communication with the FBI, he and Staggers decided
not

to

rehire

Novick,

at

least

in

part,

in

retaliation

for

cooperation with the FBI.
The Court notes that because there is evidence Defendants did
not renew Plaintiff’s employment because of the OIG investigation,
Plaintiff

might

be

hard-pressed

at

trial

to

prove

that

the

retaliation for the FBI cooperation was the “but-for” reason for
not rehiring him. However, the Seventh Circuit has made clear that
“but-for” is the criteria to be used at trial, not for summary
judgment.
2012).

Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir.

At summary judgment, the burden of proof is split between

the parties.

Id.

A plaintiff must produce evidence that his

speech was at least a motivating factor.

Id.

Defendants claim that a bona fide reason for not renewing
Plaintiff’s term exists – that the Governor’s Office was trying to
reduce term appointments.

This may be true, but given that

similarly situated employees whose terms were not renewed were
otherwise re-employed, it creates an issue of material fact as to
whether that reason was a pretext for not rehiring Plaintiff.
B. Qualified Immunity
The Court does not find much new ground trod by Plaintiff in
his Motion in regards to the Court’s finding on qualified immunity.
Plaintiff contends that the Court reached its decision on bases
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Defendants had not raised, and objects that he had “not previously
addressed these issues.” Novick’s Mot. to Amend, 11, ECF No. 171.
The Court is not convinced this qualifies as making an adversarial
ruling outside the issues presented by the parties, as Defendants
undeniably did discuss qualified immunity in their motions for
summary

judgment.

But

on

the

argument

that

the

Defendants

qualified immunity briefing focused on different bases than those
upon which the Court decided, this Court will give Plaintiff the
benefit of the doubt and re-examine the issue.
Analysis of qualified immunity involves two questions:

(1)

whether a constitutional right was violated using plaintiff’s
version of the facts, and (2) whether that right was clearly
established at the time.

Surita v. Hyde, 665 F.3d 860, 868 (7th

Cir. 2011).
The Court ruled for Plaintiff on the first element, but found
that at the time the alleged retaliation was occurring in this
case, it was far from clear that it was clearly established that a
government employer was prohibited from failing to rehire an
employee (particularly an attorney) who cooperated with the FBI.
The Court made this ruling mindful of the landscape that existed in
2007, when Plaintiff was not rehired.

The landmark case of

Garcetti v. Ceballos had been decided a short time before, on
May 30, 2006.

Garcetti v. Ceballos, 547 U.S. 410.

That landmark

case changed the analysis of when a public employer could restrict

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an employee’s speech.

Id. at 421-422 (“Restricting speech that

owes

to

its

existence

a

public

employee’s

professional

responsibilities does not infringe any liberties the employee might
have enjoyed as a private citizen. It simply reflects the exercise
of employer control over what the employer itself has commissioned
or created.”).
However, as the Seventh Circuit itself noted on July 17, 2007,
a few weeks after Plaintiff was not rehired, Garcetti had not given
the Supreme Court an “occasion to articulate a comprehensive
framework for defining the scope of an employee’s duties in cases
where there is room for serious debate.”

Morales v. Jones, 494

F.3d 590, 596.
The Court reasoned that, as late as 2008, the Seventh Circuit
had not enunciated a clear endorsement of cooperation with the FBI
as speech unconnected to one’s employment duties.

Trigillo v.

Snyder, 547 F.3d 826 (7th Cir. 2008). Indeed, although the Seventh
Circuit

in

Trigillo

found

that

a

Department

of

Corrections

employee’s report to the Illinois Attorney General (recounting
possible irregularities) was part of her job duties of overseeing
procurement activities (Id. at 830).

It pointedly left alone the

question of whether a report about possible bid rigging to the FBI
was part of her duties.

Id.

(“[W]e need not get into that because

her retaliation claim based on the report to the FBI fails for a
more basic reason

. . . ”).
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The Court further notes that, shortly after Garcetti, this
uncertainty about the contours of official duties was demonstrated
in a vigorously disputed, split-decision Seventh Circuit case
somewhat analogous to this one.

See Morales, 494 F.3d at 598

(ruling that a police officer’s report to a district attorney of
suspicions of criminal corruption by the police chief was connected
to

his

job

duties,

even

when

investigate such corruption).

he

had

not

been

assigned

to

The Court also notes that, while

Garcetti ruled statements and reports a district attorney made to
his superiors regarding falsified affidavits was part of his job
(Garcetti, 547 U.S. at 422), it left vague whether Ceballos’ court
testimony when called by the defense was pursuant to his job duties
as well.

This might very well suggest that an attorney testifying

truthfully, outside the chain of command, could still qualify as a
job-related duty.
Plaintiff in this case was hired as an attorney, a position
that comes with ethical obligations to tell the truth and uphold
the law.

In the uncertainty following Garcetti, a defendant might

very well have concluded that Novick’s speech to the FBI was like
the courtroom testimony in Garcetti, and likely unprotected.
Indeed, Defendants did argue in this case that Novick’s speech to
the FBI was part of his job duties.

That this Court concluded in

June 2012 (based on the 2011 Tenth Circuit Case of Trant v.
Oklahoma, 426 Fed.Appx. 653, 660) that Plaintiff’s communication
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with the FBI was not part of Novick’s duties does not mean that
such a conclusion was clear in 2007.
Plaintiff cites a plethora of cases in arguing that the right
was clearly established at that time, but all are either preGarcetti cases, cases decided after Roberson and Staggers acted
(e.g., Fulk v. Village of Sandoval, No. 08-843-GPM, 2009 U.S. Dist.
LEXIS 102606 (S.D. Ill. Nov. 3, 2009) or out-of-District cases that
would not necessarily clearly establish a constitutional violation
in this District.
The Motion to Reconsider this aspect of the ruling is denied.
C.

State Officials and Employees Ethics Act

Plaintiff also urges reconsideration of the Court’s conclusion
that he waived any objection to Plaintiff’s argument that the
conduct in this case did not fit within the statutory definition of
retaliatory action prohibited by the State Officials and Employee
Ethics Act.

5 ILL. STAT. COMP . 430/15-10.

Specifically, Defendants

contended in their motions for summary judgment that not rehiring
an employee after a four-year term expires does not constitute “the
reprimand, discharge, suspension, demotion, denial of promotion or
transfer, or change in the terms or conditions of employment” of a
state employee.

Id. at 430/15-5.

Plaintiff now contends it does, specifically that it falls
within the “denial of . . . transfer” rubric.

This is a fine

argument, and one the Plaintiff had the opportunity to make at
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summary judgment.

He failed to do so.

Reconsideration is not an

appropriate forum for arguing matters that could have been heard
during the pendency of the previous motion.

Bally Export Corp. v.

Balicar Ltd., 804 F.2d 398, 404 (7th Cir. 1986).
The Motion to Reconsider is denied, as is the alternative
Motion to Remand the state law claim.
IV.

CONCLUSION

Although the Court reaches a different conclusion on whether
a prima facie case of retaliation was demonstrated, the Plaintiff’s
Motion to Reconsider Summary Judgment is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:12/20/2012

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