McCarragher v. Ditton et al

Filing 52

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 5/18/2017: For the reasons explained in the Memorandum Opinion, the defendant's motion to dismiss the amended complaint 31 is denied. A status hearing is set for May 24, 2017 at 9:00 a.m. Mailed notice(air, ) Modified on 5/18/2017 (air, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MAUREEN McCARRAGHER,
Plaintiff,
v.
CHRISTOPHER DITTON, individually
and in his official capacity as AVON
TOWNSHIP ASSESSOR,
Defendant.

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No. 14 C 08591
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Maureen McCarragher, a former employee of the Avon Township Assessor’s
Office 1 brings this action against Christopher Ditton, the elected Avon Township Assessor.
McCarragher alleges that, in violation of her First Amendment rights, Ditton punished her for not
supporting him politically when he retained his unqualified patronage hires while the office’s
funding ran out, and then, after terminating everyone for lack of funds, failed to hire her for a
new position when he later re-hired his political allies. McCarragher also alleges that the failure
to rehire her was retaliation for the filing of this lawsuit (the rehiring occurred between the
original and amended complaints). Before the Court is Ditton’s motion to dismiss the amended
complaint for failure to state a claim on which relief can be granted pursuant to Federal Rule of
Civil Procedure 12(b)(6). For the reasons discussed below, the motion is denied.

1

Avon township comprises the communities of Round Lake, Grayslake, Hainesville, and
Third Lake in Lake County, Illinois.

FACTS
The factual allegations in the plaintiff’s amended complaint, see ECF No. 30, are
assumed to be true for purposes of this motion to dismiss. See Kristofek v. Vill. of Orland Hills,
712 F.3d 979, 982 (7th Cir. 2013).
In January 2010, McCarragher, a Certified Illinois Assessor Officer (“CIAO”) was hired
as a deputy assessor by Christopher Ditton’s predecessor as Township Assessor, Bryce Carus.
Carus was elected in 2009 as part of the “Avon Forward” slate of candidates, which also
included defendant Ditton, who ran for Township Trustee, Tom Brust, the candidate for
Highway Commissioner, and Sam Yingling, who ran for Township Supervisor. These candidates
and political allies all won, except for Tom Brust, but he quickly obtained the Highway
Commissioner post anyway, because the Commissioner resigned and Yingling appointed Brust
to fill the vacancy.
Carus took office as Assessor in January 2010, and hired McCarragher, an experienced
assessor. Possibly at Yingling’s insistence, he also hired Cynthia Brust, Tom’s wife, although
she had no qualifications and was not a CIAO. Carus fired Cynthia Brust within two months. In
June 2011, Carus resigned as Assessor. In December 2011, Ditton was appointed to serve the
remainder of Carus’s term, although he had no experience and had to start from scratch taking
classes to become an assessor. At that time, only McCarragher and one other employee of the
Assessor’s Office (Robin Vidone-O’Donnell) were qualified as Deputy Assessors under state
law. In April 2013, Ditton was elected to continue as the Avon Township Assessor. McCarragher
did not support Ditton in his campaign, nor had she supported his earlier political campaigns.
As a Deputy Assessor, McCarragher did not supervise any employees and could not
make any hiring or firing decisions. She did not make policy, and believed that she lacked

2

authority to do so. Instead, she was “duty-bound to follow state statutes in the performance of
[her] job function,” to the extent that the Illinois Code addresses the position of deputy township
assessors at all. No statute or ordinance defines a township deputy assessor’s role as anything but
“evaluat[ing] and assess[ing] property,” and the township deputy assessor is not a department
head and does not manage the budget, supervise employees, or make policy. McCarragher was
not authorized to fill in for Ditton in his absence. On the other hand, as the Township Assessor,
Ditton had the authority to hire and fire employees, oversee the budget, and set policy.
For the budget year 2014, the Township Board approved enough funding for the
Assessor’s office for its existing two deputies (including McCarragher), although Ditton had
requested funding for four. Despite the lack of budget authorization, he nevertheless hired two
additional employees—Cynthia Brust and Richard Watts, another of his political allies—
although they were not certified assessors. (Indeed, Ditton unsuccessfully sought an injunction in
federal court to get sufficient funds to make his patronage hires.) The Avon Township Board
warned Ditton that budgetary constraints would not allow him to retain all of his employees in
the 2014 budget year. Nevertheless, rather than stretch the budget by laying off his two most
recent hires, who lacked experience or qualifications as deputy assessors, Ditton retained Brust
and Watts, thereby depleting the budget of funds sufficient to maintain McCarragher’s position
for the balance of the year. To make matters worse, McCarragher alleges, Ditton paid Brust for
full-time work although she had another job during the same working hours. The money ran out
six months into the fiscal year, and all of the Assessor’s Office employees, including
McCarragher, were laid off. McCarragher’s termination was effective on September 25, 2014—
two weeks after Ditton’s preliminary injunction regarding funding was denied. If Ditton had

3

heeded the warnings that he could not afford four deputies, there would have been funding for
McCarragher’s job for the entire fiscal year.
On October 30, 2014, McCarragher filed her first federal complaint pursuant to 42 U.S.C.
§ 1983, asserting that her termination was the result of her failure to support Ditton politically, in
violation of her First Amendment rights. She also alleged a violation of her right to due process
under the Fourteenth Amendment. Ditton moved to dismiss the complaint, but that fully briefed
motion became moot when McCarragher was granted leave to amend her complaint.
The First Amended Complaint retains the claim that Ditton’s patronage appointments
caused the funding crisis that necessitated McCarragher’s termination. McCarragher now adds a
claim that filing this lawsuit prompted further retaliation, in that Ditton, once funding returned in
February 2015, recalled his patronage hires but not McCarragher, and gave an open position of
part-time assessor to his campaign manager’s sister instead of offering McCarragher that
position. McCarragher no longer pursues a due-process claim. She seeks compensatory and
punitive damages and a permanent injunction restoring her job, seniority, salary, and benefits and
prohibiting patronage-based personnel decisions in the Assessor’s office in the future. Once
again, Ditton moves to dismiss the amended complaint in full.
DISCUSSION
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim satisfies this standard when its factual allegations “raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555–56. The plaintiff “must give
enough details about the subject-matter of the case to present a story that holds together.”
Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). In resolving the motion, the Court

4

takes all facts alleged by the plaintiff as true and draws all reasonable inferences from those facts
in the plaintiff’s favor, although conclusory allegations that merely recite the elements of a claim
are not entitled to a presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
I.

First Amendment Claims

In Count I, McCarragher alleges that political favoritism motivated both the decision to
lay her off (because the patronage hires should never have been made and those employees
should have been the first to go) and not to give her a job when positions became available again.
In Count II, she alleges that Ditton’s failure to hire her for an open position when he recalled his
patronage hires was retaliation for exercising her First Amendment right to file this lawsuit on a
matter of public concern.
a.

Patronage Claim: Unlawful termination and failure to rehire

Ditton contends that McCarragher’s First Amendment patronage claims fail as a matter of
law because party affiliation and loyalty are appropriate requirements for the job of Deputy
Assessor in Avon Township. See Mem. 10- 13, ECF No. 32. McCarragher argues that the
patronage hiring and recall decisions 2 in this case were unlawful violations of her free
association rights under the First Amendment, and that her position is not exempt from the
patronage rules because it is not a policymaking job.
“[P]atronage is a very effective impediment to the associational and speech freedoms
which are essential to a meaningful system of democratic government,” stated the Supreme
Court in Elrod v. Burns, 427 U.S. 347, 369-70 (1976), the first in a line of cases holding that “the
practice of patronage dismissals is unconstitutional under the First and Fourteenth

2

Count I of the complaint focuses on the layoff, not the recall, but the patronage rules
apply to both actions equally, Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990), and
McCarragher’s response brief addresses both actions in the context of her patronage claim.
5

Amendments,” id. at 373. See also Branti v. Finkel, 445 U.S. 507, 517(1980) (explaining that
“there is no requirement that dismissed employees prove that they, or other employees, have
been coerced into changing, either actually or ostensibly, their political allegiance” and “it was
sufficient, as Elrod holds, for respondents to prove that they were discharged ‘solely for the
reason that they were not affiliated with or sponsored by’” a particular political party); Rutan v.
Republican Party of Illinois, 497 U.S. 62, 75 (1990) (“We therefore determine that promotions,
transfers, and recalls after layoffs based on political affiliation or support are an impermissible
infringement on the First Amendment rights of public employees.”). The rules against patronage
in public employment were expanded most recently in Heffernan v. City of Paterson, 136 S. Ct.
1412 (2016), in which the Supreme Court held that a personnel decision premised on an incorrect
belief about a person’s political allegiance violates the First Amendment, even though no actual
protected political activity had occurred. See id. at 1416, 1419.
The exception to the prohibition on political hiring is when the job in question is one for
which political affiliation is a legitimate requirement—a so-called “policymaking” position.
Elrod, 427 U.S. at 367-68. The “government’s interest in securing employees who will loyally
implement its policies can be adequately served by choosing or dismissing certain high-level
employees on the basis of their political views.” Rutan, 497 U.S. at 74. “[T]he ultimate inquiry
is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the
question is whether the hiring authority can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518.
The job must entail a “heightened need for trust and confidence that ... subordinates are guided
by the same political compass and will exercise their discretion in a manner consistent with their
shared political agenda.” Bonds v. Milwaukee Cnty., 207 F.3d 969, 977 (7th Cir. 2000).

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Here, McCarragher alleges that she was terminated and not rehired merely because she
had not supported the Assessor’s political campaigns. This is a straightforward patronage-hiring
claim, although the parties’ briefs muddy the applicable doctrine somewhat. “Elrod–Branti
applies when the public speech is nothing more than public political affiliation.” Embry v. City of
Calumet City, Ill., 701 F.3d 231, 235 (7th Cir. 2012).
Ditton argues that the nature of McCarragher’s position was such that the exception for
policy-makers applies and defeats her claim as a matter of law. The Seventh Circuit interprets the
policymaker exception as clarified in Branti as a mandate to “examine the powers inherent in a
given office, as opposed to the functions performed by a particular occupant of that office.”
Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir. 1985). The courts must look to whether an
employee’s position “inherently encompasses tasks that render her political affiliation an
appropriate prerequisite for effective performance.” Id. “[A]n employee’s position is unprotected
if, first, there is room for principled disagreement in the decisions reached by the employee and
[her] superiors, and, second, [she] has meaningful direct or indirect input into the decisionmaking process.” Id. (quoting Nekolony v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981)). 3
Ditton seizes on the “inherent powers” language and insists that this Court should hold as
a matter of law that a Township Deputy Assessor is a policymaking position involving influence
3

This Court heartily agrees that “it is often difficult to determine whether an individual
has policymaking responsibilities.” Davis v. Ockomon, 668 F.3d 473, 477 (7th Cir. 2012). There
is considerable tension between the “inherent powers” test and the requirement to assess whether
there is room for “principled disagreement” and “meaningful input . . . into the decision-making
process.” It is not clear to this Court that the latter questions can be answered by reference to a
job description or the statute defining a government position. Instead, they would seem to depend
on the circumstances of a particular office environment, supervisor, etc. But the “inherent
powers” rule is meant to “relieve the courts of the burden of having to examine a certain position
every time new administration changes the mix of responsibilities bestowed upon the
officeholder” and “provide certainty.” Tomczak, 765 F.2d at 642. Therefore, under Tomczak, an
employee can lose First Amendment protection based on the theoretical, rather than the actual,
responsibilities of her job.
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over policy and decision-making. He bases this argument on Illinois statutes and (primarily)
three cases. McCarragher counters that, beyond the fact she performed none of the policymaking
functions that underlie the exception, as a general matter no statute prescribes any policymaking
authority for a deputy township assessor and that Ditton relies on inapt authority.
Beginning with Ditton’s statutory argument, it is appropriate to focus the “inherent
powers inquiry” on the “statute or ordinance establishing a position’s duties,” and any job
description that elaborates on, but does not contradict, those definitions. Davis v. Ockomon, 668
F.3d 473, 478 (7th Cir. 2012). Chapter 200, Article 2 of the Illinois Code addresses the position
of “Township Assessment Official” and is primarily directed at the elected Township Assessor. 4
35 ILCS 200/2-30 empowers the Township Assessor to prepare and submit a proposed budget to
the Township Board. Section 2-45 prescribes the minimum qualifications for candidates for
elected Township Assessor positions. If the position of Township Assessor becomes vacant, a
deputy does not succeed the Assessor; instead, the Township Board appoints “a member of the
same political party as the person vacating the office” if such a qualified person is available;
otherwise any qualified assessor may be appointed. 35 ILCS 200/2-60.
The position of deputy township assessor is defined in the Property Tax Code. 35 ILCS
200/2-65(a) employers the Township Assessor to “appoint one or more suitable persons as
deputies to assist in making the assessment.” In turn the Property Tax Code defines “Assessor”

4

There is an Illinois statute that addresses deputy assessors in counties of more than 3
million people—of which Lake County is not one. That is Title 3 of Section 200, and under the
rules (which apply only to Cook County), the Assessor must appoint a chief deputy, a deputy in
charge of administrative services, and a deputy in charge of real estate. 35 ILCS 200/3-55. Any
other deputies may be hired “under the civil service law” applicable in the County. McCarragher
argues that, to the extent any analogy can be made between Cook County and a small township,
she is akin to a “civil service” deputy and not one of the chief deputies appointed outside the
civil service laws. The Court agrees. See p. 11, infra.

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to include “county, township, multi-township or deputy assessors, all of whom evaluate and
appraise property.” Thus, under Illinois law, the Assessor and the deputy assessors both are
empowered to evaluate and appraise—i.e., assess—property.
So, to the extent that the Illinois Code sheds light on the “inherent powers” of a deputy
assessor, they overlap with the powers of the elected Township Assessor only as to the authority
to perform assessments. Deputies are not even necessary in a Township Assessor’s office and are
only appointed as needed to make the property assessments in a timely manner; there is no
subordinate type of “assessor” below “deputy”; rather, “deputy” merely indicates subordination
to the elected Assessor. To fill in the gaps the statute leaves with respect to township deputy
assessors, Ditton emphasizes McCarragher’s CAIO certification, one result of which is her
qualification to be an Assessor if she were to run for the position. See Def. Mem. 13, ECF No.
32. But that is beside the point. She had the qualifications to run for Assessor, but she was not
the Assessor, she was a deputy (township—not County—deputy), and the Court must look to the
inherent functions of that job. Nothing in Illinois law points to that position having any policy
making function or the ability to have “meaningful input” into discretionary decisions. The only
statute addressing the deputies simply authorizes them to perform property assessments;
therefore, statutory law does not answer the question posed by Ditton’s motion.
Ditton also trumpets three cases as support for the proposition that, as a matter of law, a
deputy Township Assessor is a job for which political allegiance is a valid requirement. One is
supplemental authority that is directly on point, although not binding. In Hanson v. Milton
Township, 177 F. Supp. 3d 1096 (N.D. Ill. 2016), another court in this District concluded that a
deputy township assessor in Illinois has policymaking authority for purposes of the patronagedismissal laws. With due respect, this Court does not agree with the Hanson Court. By citing

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only provisions of Article 3, the Hanson Court appeared to rely on statutes governing county
assessors, not township assessors (see n.3, supra), in addition to a 1929 Illinois Supreme Court
case, People ex rel. Cutmore v. Harding, 333 Ill. 384, 395, 164 N.E. 827, 831 (1929), that
addressed duties of members of the board of Cook County assessors and their deputies. In that
case, the Supreme Court concluded that the act of viewing and determining the value of property
is not “clerical” and not “the mere gathering and recording of information.” Id. at 395.
This Court does not take issue with the general premise of Cutmore that a deputy
township assessor’s duties—making property assessments—involve some measure of discretion
and judgment in their execution, even if the method of assessing property is formulaic. It is not
clerical work. But that is not the question posed by the policy-making exception. The question is
not whether the job itself involves any discretionary decisions such as how to value a property; it
is whether the employee can make discretionary policy decisions—whether she “acts as an
adviser or formulates plans for the implementation of broad goals” as an inherent part of the job,
see Elrod, 427 U.S. at 368, such that political affiliation is an “appropriate requirement” for
effective performance of that job, see Branti, 445 U.S. at 518. There must be a legitimate reason
that the employee must be “guided by the same political compass and will exercise [her]
discretion in a manner consistent with [a] shared political agenda.” Bonds, 207 F.3d at 977.
Whether an assessor’s job involves discretion in valuing property is not the same question as
whether the job entails discretion over policy-making; Ditton has not argued that the two are one
in the same, i.e., that valuation of property is itself a political or policy-oriented act.
Further, this Court does not agree with the Hanson Court’s interpretation of the laws
applicable to county assessors, even if they were applicable or analogous to the township jobs at
issue here.

For example, citing 35 ILCS 200/3-55, the Hanson Court stated that “deputy

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assessors not in Cook County are not subject to civil service regulations”; that statute, however,
states only that the three required principal deputies (the chief deputy and two divisional
deputies) in Cook County are not subject to the civil service rules, but that all other deputies are.
The deputy township assessors in Avon Township are not akin to the high-level chief deputies
appointed by the Cook County Assessor (at least not as far as the pleadings show), and the
exemption from civil service rules for line deputy assessors in Cook County supports the view
that such positions should not be characterized as policy-making positions.
This Court also takes issue with the application of Kline v. Hughes, 131 F.3d 708 (7th
Cir.1997) by the Hanson Court and by Ditton (who relies heavily on that case). In Kline, the
Seventh Circuit held, on summary judgment, that deputy auditors in Spencer County, Indiana,
were subject to the policy-maker exception and could be fired for political reasons. Political
affiliation was an “appropriate requirement” for the job because the Indiana statutory scheme
provided that “a deputy county auditor may perform all the official duties of the county auditor”
and the county auditor “is responsible for all the official acts of the deputy.” Id. at 710. “This
arrangement makes clear that the office of deputy auditor plays a vital role in the
implementation of the county auditor’s policies.” Id. (emphasis added). Ditton points to no such
“arrangement” under Illinois law. Indeed, the statutory scheme suggests the opposite scenario:
that only the Township Assessor may hire and fire, prepare the budget, or perform any function
besides making assessments. And even if the Township Assessor slot is vacated, no deputy takes
over his or her responsibilities, even temporarily; instead, another political appointment must be
made. Thus the deputies cannot “perform all the duties” of the elected Assessor, even if they are
qualified by their experience and certifications do so.

11

For similar reasons, the Court is also unpersuaded by Ditton’s heavy reliance on Kelley v.
Davis, No. 11 C 331, 2013 WL 5486742 (S.D. Ind. Sep. 30, 2013), 5 another summary-judgment
case about a County Assessor’s Office (in Madison County, Indiana). There, the district court
concluded that the statutory authority of the deputy county assessors “carrie[d] an inherent
opportunity to provide meaningful input into governmental decision-making on issues where
there is room for principled disagreement on goals and their implementation.” Id. at * 5. “[T]he
job as it is defined in the Indiana Code [is] not a lowly, ministerial discretion-less one. The
deputy county assessor plays a vital role in the implementation of the county assessor’s policy.”
The case is distinguishable. Most importantly, a completely different statutory scheme
operates in Indiana: there, a deputy county assessor, like the auditors in Kline, “may perform all
the official duties of the officer who appointed him.” Id. at * 5. Although McCarragher concedes
that the elected Avon Township Assessor is a policy-maker (Pl. Mem. 9, ECF No. 38), this Court
has already noted that Ditton cites no Illinois law to the effect that a township deputy assessor
can perform the Assessor’s duties such as preparing a budget or hiring and firing staff, even in
the absence of the Assessor. Ditton can only point to McCarragher’s CAIO certification, which is
a statement of McCarragher’s qualifications, not a description of the job of deputy township
assessor, and of course, it is specific to the plaintiff—despite Ditton’s constant refrain the Court
can look only to the position itself, not a particular occupant.
This Court also questions what exactly the Kelley and Hanson Courts mean when they
say the deputies advanced “the county’s assessor’s policies,” and what Ditton means when he
5

However, the Court certainly agrees with Judge Barker’s vivid description of the “small
town drama” of patronage hiring as akin to “a B-Movie replete with nepotism in governmental
hiring, feuding ex-sisters in law, old grudges, ‘wine-induced’ emails, and shifting political
allegiances and alliances.” Id. at *4. Though distinguishable in the details, the local politics of
Avon Township (which have spawned multiple federal lawsuits besides this one) appear to be
equally melodramatic.
12

says that a deputy township assessor has meaningful input into the Assessor’s policy agenda.
Any assessor assigns value to property and reviews appeals from property owners. That job
involves discretion in applying the formulas for making assessments, but it is not clear what
policy goals or political agenda 6 the Assessor’s office is tasked with or has influence over. No
one ever says. Without knowing what the policymaking role even of the elected Assessor are,
this Court cannot conclude on the pleadings that an Avon Township deputy assessor is, as a
matter of law, inherently empowered to have meaningful input in discretionary governmental
decision-making or authority over policy. And unless Ditton’s argument is that politics plays a
legitimate role in the process of assessing the value of a home or other real property, the Court
cannot conclude that a deputy assessor—whose duties are apparently limited to making such
valuations—fulfills a policy-making role in which political affiliation is a relevant consideration.
Finally, the First Amendment is a powerful and fundamental protection, and for that
reason there is a “presumptive prohibition on infringement” when a patronage personnel decision
is made. Elrod, 427 U.S. at 360. Therefore, “exacting scrutiny” must be applied before such
decisions will be sanctioned. Id. at 362. “[I]f conditioning the retention of public employment on
the employee’s support of the in-party is to survive constitutional challenge, it must further some
vital government end by a means that is least restrictive of freedom of belief and association in
achieving that end, and the benefit gained must outweigh the loss of constitutionally protected
rights.” Id. at 363; see Branti, 445 U.S. at 515-16 (a person’s “beliefs cannot be the sole basis for

6

Of course, the Court can imagine plenty of unlawful political goals of an assessor, such
as the manipulation of property values in exchange for bribes. See, e.g., United States v.
Hawkins, 777 F.3d 880, 881 (7th Cir. 2015) (“Haleem paid Hawkins and Racasi to arrange for
lower assessments. They took his money, and the assessments were reduced, except for one
parcel about which the protest was untimely”). But surely the willingness to advance a corrupt
agenda through one’s official position is not the type of “inherent power” of office that the
Supreme Court had in mind when carving out a policymaking exception.
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depriving him of continued public employement” “unless the government can demonstrate” an
overriding interest of vital importance); Rutan, 497 U.S. at 74 (“Unless these patronage practices
are narrowly tailored to further vital government interests, we must conclude that they
impermissibly encroach on First Amendment freedoms.”). This is a very high bar, and one that is
particularly difficult to clear at the pleadings stage.
“The question of whether a position is exempted from the First Amendment patronage
dismissal ban is a factual one that should ordinarily be left for a jury to determine” unless “the
duties and responsibilities of a particular position are clearly outlined by law” Pleva v. Norquist,
195 F.3d 905, 912 (7th Cir. 1999) (emphasis added). There is no such clarity here. Absent a job
description, statute, or ordinance setting forth powers of a township deputy assessor that amount
to meaningful ability to make and implement policy, this Court has no basis to contradict the
allegations in the complaint that McCarragher’s job was to assess property according her training
and the applicable formulas. Because the Elrod-Branti line of cases does not restrict an official
from engaging in a “good-faith reorganization of an office,” Mitchell, 215 F.3d 753, Ditton’s
defense might ultimately prevail, with evidence that deputy assessors in small townships are
inherently empowered to influence some (as yet unidentified) policy or give meaningful input
into governmental decision-making on debatable issues. But he has not established as a matter of
law that McCarragher’s position carried the inherent power to influence policy.
b.

First Amendment Retaliation for Filing Lawsuit

The Court has already concluded that Ditton’s failure to rehire McCarragher when
funding was restored and new positions became available plausibly states a First Amendment
claim based up a patronage dismissal theory. Count II also alleges that Ditton did not recall
McCarragher in retaliation for the filing of the original complaint in this case on October 30,

14

2014. Ditton primarily argues that the allegations underlying Count II fail to state a plausible
claim for relief because she does not allege that McCarragher’s political allegiances caused his
personnel decisions.
The elements of a First Amendment retaliation claims are that (1) the plaintiff engaged in
activity protected by the First Amendment; (2) she suffered a deprivation that would likely deter
First Amendment-protected activity in the future; and (3) the plaintiff’s protected was at least a
motivating factor in the defendant’s decision to take retaliatory action. McGreal v. Vill. of
Orland Park, 850 F.3d 308, 312 (7th Cir. 2017); Swetlik v. Crawford, 738 F.3d 818, 825 (7th
Cir. 2013). The only element that Ditton challenges in his motion is the third. He contends that
there was no suspicious timing indicative of a causal link and that McCarragher “failed to plead
that she would have been re-hired for her position in the Assessor’s Office if she had not filed
her complaint.” Mem. 9-10, ECF No. 32.
Ditton’s arguments miss the mark. First, causation is generally “a factual matter” that is
“best answered by the traditional finder of fact.” Volkman v. Ryker, 736 F.3d 1084, 1089 (7th
Cir. 2013). Second, he is wrong that McCarragher was required to plead that “she would have
been re-hired for her position in the Assessor’s Office if she had not filed her lawsuit.” The
lawsuit must have been a “motivating factor,” which means a sufficient, but not necessary,
condition. Peele v. Burch, 722 F.3d 956, 960 (7th Cir. 2013); Greene v. Doruff, 660 F.3d 975,
979 (7th Cir. 2011) (“[T]o satisfy his burden of production on the issue of causation by showing
that a violation of his rights was a sufficient condition of the harm for which he seeks redress; he
need not show it was a necessary condition.”). Later, when evidence is presented, the employer
can rebut a prima facie showing of causation by proving that it “would have reached the same
result even without the protected speech.” Peele, 722 F.3d at 960. In other words, “In the end,

15

the plaintiff must demonstrate that, but for his protected speech, the employer would not have
taken the adverse action.” Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012) (emphasis
added). But we are far from the proof stage, and McCarragher’s pleadings suffice to plausibly
allege that political favoritism was “a motivating factor” or “sufficient condition.” See id.
Third, there is no requirement that a plaintiff specifically plead suspicious timing.
Suspicious timing is a type of circumstantial evidence that can be used to prove retaliatory
motive, one of the possible “bits and pieces” of evidence suggestive of a retaliatory motive. See
Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 643 (7th Cir. 2013). It is not a required element
of a claim. And in any event, without discovery, it is premature to conclude that the timing of
Ditton’s decisions was definitively benign. Ditton’s citation to materials outside the record, see
e.g., Group Ex. B, ECF No. 32-1, is not well-taken at the motion-to-dismiss stage. See Doss v.
Clearwater Title Co., 551 F.3d 634, 639 (7th Cir. 2008). Even if the court could take judicial
notice of the substance of public records regarding the Township budget, without any
explanation from Ditton those exhibits do not establish, as a matter of law, that there is nothing
suspicious about the timing of Ditton’s decisions, or that he lacked a retaliatory motive.
Here, the plaintiff alleges in Count II that after this lawsuit was filed, Ditton hired back
his unqualified political allies and not McCarragher, despite her superior qualifications and the
existence of an open position (albeit one that differed from her prior position, being part-time
instead of full-time). Instead, Ditton hired another of his supporters, the sister of his campaign
manager, for the open position. Moreover, Ditton ultimately invited McCarragher to interview
for the open position, but only after McCarragher had filed a Sur-reply brief in this case on
Ditton’s motion to dismiss the original complaint; that Sur-reply disclosed that a position was
open and might have induced Ditton to try to improve his litigation position by reaching out to

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McCarragher. Moreover, by way of context, the failure to recall McCarragher occurred after
another alleged First Amendment violation—her termination based on her political allegiances.
From these factual allegations, if true, one could infer a retaliatory motive.
III.

Qualified Immunity

Finally, Ditton argues that even if he violated McCarragher’s First Amendment rights in
some fashion, he is protected from liability by the doctrine of qualified immunity. The defense
applies if “taken in the light most favorable to the plaintiff, the facts . . . show the official
violated a constitutional right” and “the right was clearly established at the time of the alleged
violation.” Vose v. Kliment, 506 F.3d 565, 568 (7th Cir. 2007). Ditton says that the defense
applies here because, as a matter of law, he was entitled to “hire and fire employees in the
Assessor’s Office as he sees fit . . . and can rely on party affiliation and personal loyalty” in
doing so—in other words, he argues that based on the amended complaint’s allegations, no
constitutional violation occurred. Mem. 15, ECF No. 32. This Court finds it inappropriate to
dismiss the complaint on this ground at this time.
“[T]he rule that qualified immunity must be resolved at the earliest possible stage . . .
must be tempered by the notice pleading requirements of Rule 8.” Tamayo v. Blagojevich, 526
F.3d 1074, 1090 (7th Cir. 2008) (internal citations omitted). In fact, the Seventh Circuit has gone
as far as saying that “dismissal at the pleading stage is inappropriate” insofar as the defense
depends on the facts of the case. Alvarado v. Litscher, 267 F.3d 648, 651–52 (7th Cir. 2001).
Still, the appellate court has allowed dismissal based on qualified immunity, such as when the
facts alleged could not possibility add up to a constitutional violation, see Vose, 506 F.3d at 572,
or when it is plain that no “clearly established” law applies to the defendant’s alleged actions, see
Chasensky v. Walker, 740 F.3d 1088, 1097 (7th Cir. 2014). Neither is the case here.

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Ditton’s argument rests on the premise that McCarragher’s position inherently involved
policymaking authority and that she could therefore be terminated based on her political
allegiances. Thus this is a case where disputed facts matter to the determination of whether a
constitutional violation occurred (the prong of the qualified-immunity inquiry on which Ditton’s
argument is based). The parties hotly dispute whether McCarragher had policymaking authority,
making the applicability of the exception a question that cannot be resolved on these pleadings.
Plus it is only the plaintiff’s version of the facts that matter at the pleadings stage, so the Court
must assume that McCarragher’s position did not entail policy-making, that Ditton only had to
lay her off because he had been keeping unqualified patronage hires on the payroll, and that he
did not rehire her because of her political disloyalty to him. On the basis of these allegations, the
Court has already concluded that there is a plausible First Amendment claim stated in the
amended complaint; therefore, Ditton cannot establish the first prong of the qualified-immunity
inquiry at this time. See generally Levenstein v. Salafsky, 164 F.3d 345, 351 (7th Cir. 1998) (first
prong not met where claim of constitutional violation survived motion to dismiss).
Nor can this Court say that as a matter of law, there was no clearly established law
applicable to this situation. Regarding Count I, the Seventh Circuit has already held that, for
purposes of qualified immunity, there is a clearly established right of public employees not to be
penalized by their employer for exercising their First Amendment speech rights. See Delgado v.
Jones, 282 F.3d 511, 520 (7th Cir. 2002). It is difficult to imagine that another First Amendment
right applicable to public employees—the right of free association—would be viewed
differently. The Elrod-Branti line of cases is long and straightforward, and therefore the right to
be free from adverse employment action based upon political allegiances is well-established as a
general proposition. If the particular facts of this case turn out to present a situation that falls

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outside the general rule, then Ditton can reassert the qualified-immunity defense to Count I. As
for Count II, the Seventh Circuit has squarely held that the right to be free from negative
employment consequences as a result of exercising First Amendment rights, such as filing a
lawsuit, 7 is one that is clearly established. See Hobgood v. Illinois Gaming Bd., 731 F.3d 635,
648 (7th Cir. 2013) (collecting cases). Accordingly this Court cannot accept the qualifiedimmunity defense at the pleading stage.
*

*

*

Ditton’s motion to dismiss is denied because the allegations in the amended complaint,
taken as true, add up to a plausible claim that Ditton violated McCarragher’s First Amendment
rights by taking her political allegiances into account in making hiring and firing decisions.
Furthermore, the defense of qualified immunity is asserted prematurely given a contested set of
facts and a line of case law that could (although the Court makes no ruling now) lead to the
conclusion that a clearly established right was violated once the facts are developed.

John J. Tharp, Jr.
United States District Judge

Date: May 19, 2017

7

To enjoy First Amendment protection, the lawsuit must pertain to a matter of public
concern. See Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 398 (2011); Salas v. Wisconsin
Dep't of Corr., 493 F.3d 913, 925 (7th Cir. 2007). Unlawful political patronage by public
employers fits this description.
19