Velazquez v. Office of the Illinois Secretary of State et al

Filing 86

WRITTEN Opinion entered by the Honorable James B. Zagel on 3/6/2012: Defendants' motion for summary judgment on Count I is GRANTED, Plaintiff's motion for summary judgment on Count I is DENIED. Plaintiff's motion for summary judgment on Count II is GRANTED, Defendants' motion for summary judgment on Count II is DENIED. (ma,)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Judge Zagel

CASE NUMBER

09 C 3366

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

March 6, 2012

Velazquez v. Office of the Illinois Secretary of State, et al.

DOCKET ENTRY TEXT:

Defendants’ motion for summary judgment on Count I is GRANTED, Plaintiff’s motion for summary
judgment on Count I is DENIED. Plaintiff’s motion for summary judgment on Count II is GRANTED,
Defendants’ motion for summary judgment on Count II is DENIED.

STATEMENT
On December 14, 2011, I entered an order denying both parties’ motions for summary judgment on Count III.
I also requested further briefing on whether Count I is barred by 28 U.S.C. § 1738, and whether Defendants
are entitled to qualified immunity on Count II. Both sides have provided supplemental briefing and I now
rule on Counts I and II.
1. Count I is barred by 28 U.S.C. § 1738
In my December 14, 2011, order I laid out in some detail the res judicata issue in this case as it relates to
Plaintiff’s Title VII claim. I incorporate that analysis and find that Plaintiff’s Title VII claim is barred by 28
U.S.C. § 1738. Plaintiff cannot distinguish this case from Welch v. Johnson, 907 F.2d 714 (7th Cir. 1990).
Nevertheless, Plaintiff argues it would be inequitable to preclude Count I at this stage because he “could not
have meaningfully alleged racial disparity before the Merit Commission due to a lack of evidence to support
such an argument.” Whether or not this is true, Plaintiff certainly could have alleged racial discrimination in
state court. Without a showing that he was somehow blocked from doing so, which Plaintiff does not allege,
his failure to raise racial discrimination in state court precludes him from raising it in this court.
2. Defendants are not Entitled to Qualified Immunity on Count II
Neither party adequately briefed the question of qualified immunity as to Count II in their original summary
judgment filings so I allowed another opportunity. Plaintiff seized the opportunity and constructed a serious
argument, Defendants did not. Despite my previous rulings rejecting the argument, Defendants continue to
frame the constitutional issue around the difference between suspension and administrative leave. Once
more, these are internal bureaucratic distinctions that have no bearing on the constitutional issue in this case.
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STATEMENT
See Vitek v. Jones, 445 U.S. 480, 491 (1980) (“minimum [procedural] requirements [are] a matter of federal
law, they are not diminished by the fact that the State may have specified its own procedures that it may deem
adequate for determining the preconditions to adverse legal action.”). The proper question for purposes of
qualified immunity is whether, based on clearly established law at the time, a reasonable person in
Defendants’ position would have known that the process afforded to Plaintiff during the course of his
suspension, termination, and post-termination hearings fell below that which he was constitutionally due. See
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).1 Put differently, did Defendants have “fair warning” that the
specific way in which they carried out Plaintiff’s suspension and termination ran afoul of the Fourteenth
Amendment? U.S. v. Lanier, 520 U.S. 259, 270-71 (1997). The answer to both of these questions is “yes.”
(* In my December 14 order I found that Plaintiff’s property deprivation lasted from November 16, 2007, the
day he was put on leave without pay status, to April 30, 2008, the day he was formally terminated. That was
incorrect. The deprivation lasted at least until October 6, 2008, the date he was finally given a hearing before
the merit commission).
There are few constitutional rules more clearly established than the requirement of notice and a hearing “at a
meaningful time and in a meaningful manner” when a deprivation of constitutionally protected property
occurs. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). It is also clearly established that the “root
requirement” of the Due Process Clause is “that an individual be given an opportunity for a hearing before he
is deprived of any significant property interest.” See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971). Thus “some kind of a hearing” must occur
“prior to the discharge of an employee who has a constitutionally protected property interest in his
employment.” Id. “An important government interest, accompanied by a substantial assurance that the
deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing
the opportunity to be heard until after the initial deprivation.” FDIC v. Mallen, 486 U.S. 230, 240 (1988).
However, in such cases a “prompt” post-deprivation hearing must be provided, meaning one that proceeds
and concludes without “appreciable delay.” Barry v. Barchi, 443 U.S. 55, 66 (1979).
Loudermill, 470 U.S. 532 and Gilbert v. Homar, 520 U.S. 924 (1997) provided more than “fair warning” to
Defendants that some type of hearing was constitutionally required before Plaintiff could be terminated
(though not necessarily before being suspended without pay). It cannot be gainsaid that Loudermill clearly
establishes the right to some limited type of hearing before a public employee dismissible only for cause can
be terminated. See Gilbert, 520 U.S. at 929. While pre-termination hearings “need not be elaborate,” they
“should be an initial check against mistaken decisions–essentially, a determination of whether there are
reasonable grounds to believe that the charges against the employee are true and support the proposed action.”
Loudermill , 470 U.S. at 545-46.
Defendants do not dispute that Plaintiff was entitled to some type of pre-termination hearing, but assert that
they believed Plaintiff was provided all the process he was constitutionally due at the September 26, 2007
interview. This belief was objectively unreasonable for the following reasons. First, the purpose of the
September 26, 2007 interview was not to test the government’s evidence, but to relieve Plaintiff of duty.
There was no neutral fact finder present to serve as a check against a mistaken decision. Whether or not
Defendants Pippin and Nash gave Plaintiff an opportunity to tell his side of the story, Defendants Roth and
Demuzio had already made the decision to place Plaintiff on administrative leave prior to the interview, and
neither of them were present to hear Plaintiff’s side of the story. Thus, the interview was not a “meaningful
opportunity to invoke the discretion of the decisionmaker.” Id. at 543. Second, Plaintiff had insufficient
notice and no time to prepare for the meeting. Rather, he was told to come down to Springfield under false
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STATEMENT
pretenses and surprised with the evidence against him. The nature of the interview was ambiguous at best,
and Plaintiff could have reasonably believed he was under arrest and should remain silent. A finding that the
September 26, 2007 interview was an adequate pre-termination hearing would render the protections laid out
in Loudermill meaningless.
Defendants also had “fair warning” that they were required to provide Plaintiff with a “prompt” postdeprivation hearing. See Barry, 443 U.S. at 66. Given Plaintiff’s “paramount” interest in his livelihood, id.,
no reasonable person in Defendants’ position could believe that an eleven-month delay before obtaining any a
hearing (let alone the added two months before a final decision was reached) satisfied this constitutional
requirement, particularly in the absence of ex parte assurances that the deprivation was not baseless. See
Barry, 443 U.S. at 65; Mallen, 486 U.S. at 241. After Plaintiff’s paycheck was cut off on November 16,
2007, he was placed in a procedural black hole with no way of contesting the deprivation, and with no clock
running on the Defendants to provide a prompt hearing. Defendants apparently believed they could postpone
a hearing until they got around to completing the investigation, whenever that may have been. This belief
was unreasonable in light of Barry, where the Supreme Court emphasized the need for assurances of a
“prompt proceeding and prompt disposition” when pre-deprivation process is not provided. Barry, 443 U.S.
at 66. Here, no such assurances were in place. Instead, Plaintiff was subject to Defendants’ whim in terms of
providing basic procedural protections, and consequently almost a year passed between the date Plaintiff’s
paycheck was cut off without warning (November 16, 2007) and the date he was able to contest the
deprivation in any meaningful way (October 6, 2008). Defendants knew it was more likely than not that
Plaintiff would “suffer the full penalty imposed” before having the “opportunity to put the State to its proof.”
Id. Under these circumstances, an eleven-month delay cannot be characterized as “prompt” under any
recognizable understanding of the word. The fact that Plaintiff cannot point to a prior case that is a precise
factual replica of his own does not save Defendants–the general right to a “prompt” post-deprivation hearing
as laid out in the foregoing cases applies with “obvious clarity” here. Lanier, 520 U.S. at 272.
This case is distinguishable from Davis v. Scherer, 468 U.S. 183 (1984). There, the plaintiff had written
notice one month prior to the deprivation of his employment that his continued part-time employment with
the local sheriff’s office could lead to the termination of his employment, and he chose to persist after having
an opportunity to explain his position in writing. Because of the clear warning the plaintiff received, the
opportunity he had to explain his side in writing, and his deliberate choice to continue his dual employment,
the Court found that it was not “unreasonable...for the [Defendants] to conclude that appellee had been
provided with the fundamentals of due process.” Id. at 192. Here, it was unreasonable for Defendants to
believe that Plaintiff had been provided with the fundamentals of due process when he had no written notice
of the charges against him prior to his paycheck being cut off, and no meaningful opportunity to tell his side
of the story prior to his termination. And, unlike in Scherer, Plaintiff did not settle with Defendants but
depended on a prompt post-deprivation hearing, which he did not receive.
Finally, to the extent that Defendants argue they did not know Plaintiff had a constitutionally protected
property interest in his paycheck, I regard that as unreasonable. It is clearly established that state civil service
statutes that prohibit removal except “for cause” create protected property rights in continued employment.
Cleveland Bd. of Educ., 470 U.S. at 538-39; Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (“The
hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which
cannot be removed except ‘for cause.’). The employment statute in question, 15 ILCS 310/9, plainly creates a
“for cause” standard. Defendant Demuzio was the ISOS Director and Defendant Roth was the Director of
Personnel. Such high-ranking officers with final decision-making authority over firings cannot shield
themselves from liability by claiming ignorance of elemental legal protections to which their employees are
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STATEMENT
entitled.

1. In my December 14 order I found that Plaintiff’s property deprivation lasted from November
16, 2007, the day he was put on leave without pay status, to April 30, 2008, the day he was
formally terminated. That was incorrect. The deprivation lasted at least until October 6, 2008,
the date he was finally given a hearing before the merit commission.

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