Gnutek v. Illinois Gaming Board et al

Filing 21

MEMORANDUM Opinion and Order: For the foregoing reasons, Defendants' motion to dismiss, 16 , is (1) granted as to Gnutek's claims in Count III against the IGB and Individual Defendants in their official capacities, and (2) denied in all o ther respects. Status hearing held on 6/21/2017. Rule 26(a)(1) disclosures are to be exchanged by 7/12/2017. Fact discovery ordered closed by 2/20/2018. Status hearing set for 10/24/2017 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 6/21/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN GNUTEK,
Plaintiff,
v.
ILLINOIS GAMING BOARD; MARK OSTROWSKI;
KAREN WEATHERS; ISAIAH D. VEGA,
VINCENT PATTARA; and CLINTON C. COBB,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. 17 C 808
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff John Gnutek alleges that Defendants retaliated against him by
suspending him and then terminating his employment as a Special Revenue Agent
for the Illinois Gaming Board (“IGB”), 1 in violation of Title VII, 42 U.S.C. § 2000e et
seq. (Count I), the First Amendment of the United States Constitution (Count II),
and the Whistle Blower Protection of the Illinois State Officials and Employees
Ethics Act (the “Ethics Act”), 5 ILCS 430/15-10 et seq. (Count III). The IGB and
Mark Ostrowski, Karen Weathers, Isaiah D. Vega, Vincent Pattara, and Clinton C.
Cobb (the “Individual Defendants”), have filed a motion to dismiss, R. 16.
Defendants’ motion is granted in part and denied in part as follows.

Gnutek alleges that as a Special Revenue Agent his employer initially was the
Illinois Department of Revenue, but that, at some point, the State reclassified him
as an employee of the IGB. R. 1 at 3 n.1.

1

LEGAL STANDARD
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the court must accept all well-pleaded facts as true and
draw all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at
877.

2

DISCUSSION
A.

RETALIATION CLAIM AGAINST THE IGB (COUNT I)

Count I of the complaint alleges a claim against the IGB for retaliation under
Title VII. The IGB argues that Count I should be dismissed as implausible because
of the purported nine year period between the alleged protected activity (the filing
of past lawsuits against the IGB and other state officials) and the alleged
retaliatory conduct (the suspension and ultimate termination of Gnutek’s
employment with the IGB).
The Seventh Circuit has “said consistently and repeatedly in retaliation cases
stretching back more than a decade[ ] [that] a long time interval between protected
activity and adverse employment action may weaken but does not conclusively bar
an inference of retaliation.” Malin v. Hospira, Inc., 762 F.3d 552, 560 (7th Cir. 2014)
(emphasis added) (citing cases). “[I]f the time interval standing alone is long enough
to weaken an inference of retaliation, the plaintiff is entitled to rely on other
circumstantial evidence to support h[is] claim.” Id. For purposes of a motion to
dismiss, moreover, the plaintiff is not required to allege this additional
circumstantial evidence so long as the facts alleged are sufficient to make the
plaintiff’s retaliation claim plausible. See Carlson v. CSX Transp., Inc., 758 F.3d
819, 827 (7th Cir. 2014) (noting that the district court applied the wrong standard
on a motion to dismiss when it “faulted [the plaintiff] for not providing ‘evidence’ in
support of her [retaliation] claims” and when it “relied on summary judgment

3

decisions that addressed not the content of complaints but the evidence needed to
take a claim to a jury”).
The IGB is correct that the Seventh Circuit has said that dismissal under
Rule 12(b)(6) may be appropriate where an alleged retaliation claim is “so barebones that a lengthy time period between the protected activity and the alleged
retaliation will make any causal connection between the two implausible.” Id. at
828 (“If the best a plaintiff can do is allege that he engaged in protected activity and
then, years later, the employer took an adverse action against him, the claim may
not be permitted to proceed.”). But the Seventh Circuit also explained that “no
bright-line timing rule can be used to decide whether a retaliation claim is
plausible,” and that “[a] mechanistically applied time frame would ill serve [a
court’s] obligation to be faithful to the legislative purpose of Title VII.” Id. at 828
(internal quotation marks and citation omitted). Thus, in the usual case, “[t]he facts
and circumstances . . . must be evaluated to determine whether an interval is too
long to permit a jury to determine rationally that an adverse employment action is
linked to an employee’s earlier complaint.” Id. (internal quotation marks and
citation omitted).
Here, Gnutek has alleged a history of acrimonious litigation between the
parties, involving both state and federal lawsuits and at least one appeal to the
Seventh Circuit, and Gnutek’s allegations “must be viewed through that lens.” Id.
This litigation history adds plausibility to Gnutek’s retaliation claim, as a rational
factfinder might conclude that the IGB had a long memory and was merely waiting

4

for the right time to drop the ax on Gnutek. The IGB cites Carmody v. Board of
Trustees of the University of Illinois, 747 F.3d 470 (7th Cir. 2014), as an example of
a retaliation case where dismissal at the pleading stage was found to be
appropriate. But in Carmody, the plaintiff alleged he was fired for reporting “that
two professors were using a popcorn machine on university property as part of ‘a
private consulting deal’ of some sort. . . . [The plaintiff’s] only reason for believing
that his report about the popcorn led to his firing seem[ed] to be that the popcorn
incident occurred and then later he was fired.” Id. at 480. The Seventh Circuit
agreed with the district court’s assessment that “the three years separating the
popcorn incident and his firing made his claim implausible . . . , at least where [the
plaintiff] ha[d] given [the court] no potential explanation for the long delay between
his report and the alleged retaliation.” Id. The litigation history between the parties
alleged in this case—involving allegations of misconduct made by Gnutek against
state employees at the highest level of government, including former Illinois
Governor Rod Blagojevich’s Chief of Staff and campaign manager and the Executive
Director of the Illinois Asphalt Pavement Association (who raised a significant
amount of money for Blagojevich), both of whom were indicted by a federal grand
jury in April 2009 with Blagojevich, see Gnutek v. Ill. Gaming Bd., No. 08 C 5516,
2011 WL 1231158, at 3 & n.5 (N.D. Ill. Mar. 30, 2011), rev’d sub nom., Hobgood v.
Ill. Gaming Bd., 731 F.3d 635 (7th Cir. 2013)—is not comparable in the slightest to
the popcorn incident at issue in Carmody.

5

The IGB argues in its reply brief that the parties’ past litigation history does
not add plausibility to Gnutek’s allegations because Gnutek does not allege “an
ongoing pattern of retaliatory behavior.” R. 20 at 2 (pointing out that Gnutek has
not alleged any facts to suggest that the IGB engaged in any retaliatory conduct
against him since the filing of the past litigation more than nine years ago). But the
IGB’s attempt to force Gnutek’s allegations into a single artificial box labeled “ongoing pattern of retaliatory behavior” fails. Although such an on-going pattern is
one factor, if it exists, to consider where the protected activity and the final adverse
action are separated by a long time period, it is not the only factor that can add
plausibility to a plaintiff’s retaliation claim in such a situation.
To begin with, Gnutek very well may have experienced on-going retaliatory
conduct and simply did not include that fact in his complaint; as noted, Gnutek was
not required to plead every fact that might support his claims. But even if the Court
were to infer from the absence of such an allegation that the IGB did not engage in
any on-going retaliatory behavior, as a matter of logic, “just because a supervisor
did not discriminate or retaliate against an individual at one point in time does not
mean that later discrimination or retaliation is foreclosed.” Benjamin v. Ill. Dep’t of
Fin. & Prof’l Regulation, 837 F. Supp. 2d 840, 849 n.7 (N.D. Ill. 2011). Indeed, the
facts alleged in the complaint render it plausible that Gnutek’s firing was
retaliatory notwithstanding that the IGB may have refrained from retaliation in the
intervening years. Specifically, Gnutek alleges a “continued pattern of hostility with
the IGB,” R. 19 at 5; in other words, Gnutek alleges that there is bad blood between

6

the parties stemming from their past history. A review of the facts alleged by
Gnutek in the past litigation makes Gnutek’s allegation of bad blood and delayed
retaliation plausible. See, e.g., Gnutek, 2011 WL 1231158, at *1-7. Indeed, in an
appeal taken during that litigation, the Seventh Circuit described the evidence as
“easily support[ing] a reasonable inference that [the appellant] was the victim of a
retaliatory witch hunt.” Hobgood, 731 F.3d at 644 (emphasis added).
The IGB attempts to discount the Seventh Circuit’s reference to a “witch
hunt” because it was made in reference to the evidence supporting the retaliation
claims of Gnutek’s co-plaintiff in the prior federal litigation (Hobgood), who was a
fellow IGB employee accused of violating the law by rendering aid to Gnutek’s
alleged whistle-blowing activities. But while Gnutek was not a party to his coplaintiff’s appeal, the facts recited by the Seventh Circuit in resolving that appeal
involved Gnutek. It is not much of a stretch to conclude that any “witch hunt”
directed at Gnutek’s co-plaintiff might have been directed at Gnutek as well. The
Seventh Circuit’s comment on the co-plaintiff’s evidence, therefore, adds to the
plausibility of Gnutek’s claims here.
The Seventh Circuit’s reference to a “witch hunt,” as well as the facts
described by the district court in its prior decisions in the same case, suggest a
significant, difficult, and acrimonious history between Gnutek and his employer. By
failing to acknowledge the serious charges and acrimonious nature of the prior
litigation, the IGB suggests that the parties’ past relationship was fairly innocuous,
involving a situation roughly equivalent to the popcorn machine incident in

7

Carmody. Such a comparison is ludicrous. Moreover, the Court need not, and indeed
should not, accept the IGB’s portrayal of the facts over Gnutek’s. At this stage of the
proceedings, the Court must indulge ever reasonable inference in favor of Gnutek,
keeping in mind that the issue under Rule 12(b)(6) is not whether the IGB in fact
retaliated against Gnutek but whether it is plausible that the IGB could have
retaliated against Gnutek.
Finally, even if the Court were to credit the IGB’s argument that a
retaliatory motive for Gnutek’s suspension and termination is rendered implausible
by the absence of allegations regarding retaliatory conduct in the lengthy time
period between when Gnutek filed the first federal lawsuit and when he filed the
present lawsuit, the allegations do not conclusively show that the time period in
question is, as the IGB argues, at least nine years. The IGB ignores the fact that the
federal litigation in question was on-going through at least May 20, 2014. See
Hobgood v. Ill. Gaming Bd., No. 08 C 5516, Dkt. # 216 (N.D. Ill) (dismissing case
with prejudice). Although Gnutek was dismissed as a plaintiff in that litigation as of
February 17, 2012, it is at least plausible that the IGB would refrain from taking
any further retaliatory conduct against Gnutek until the entire case was disposed
of, in which case a reasonable factfinder could conclude that the time period
between the alleged protected activity and the alleged retaliatory conduct was
closer to nine months 2 rather than the nine years cited by the IGB. Accordingly, for
Gnutek alleges he was suspended on February 3, 2015 (R. 1, ¶ 27) and terminated
on February 27, 2015 (id., ¶ 28), which is approximately nine months after the
previous federal litigation was dismissed.
2

8

this, as well as all of the other reasons already discussed, the Court concludes that
Gnutek’s Title VII retaliation claim against the IGB is plausible and survives Rule
12(b)(6).
B.

RETALIATION CLAIM AGAINST THE INDIVIDUAL DEFENDANTS
(COUNT II)

The Individual Defendants, who are named in their individual capacities in
Count II of the complaint, argue that those claims should be dismissed because the
complaint’s allegations do not show in what specific way each Individual Defendant
was “involved” in the decision to suspend and then terminate Gnutek.
The Individual Defendants may be held liable under 42 U.S.C. § 1983 if they
retaliated against Gnutek in violation of the First Amendment. The Individual
Defendants are correct that, in the context of a Rule 12(b)(6) motion, a plaintiff
alleging a § 1983 claim for a constitutional violation must allege enough facts to
show that the defendant was personally involved in the constitutional deprivation
in question. See Moore v. Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993) (“a valid
§ 1983 claim for damages against a state supervisory official in his individual
capacity requires a showing of direct responsibility for the improper action. In other
words, an individual cannot be held liable in a § 1983 action unless he caused or
participated in an alleged constitutional deprivation.”) (internal quotation marks
and citations omitted). But Gnutek alleges that all of the Individual Defendants
participated in the decision to suspend and then terminate him. R. 1,¶ 42. It would
seem, therefore, that Gnutek has alleged the requisite personal involvement.

9

The Individual Defendants’ argument, however, apparently is that pleading
personal involvement through an allegation of participation in the adverse
employment action at issue is insufficient, and that a plaintiff must plead specific
facts regarding the nature of the alleged participation rendering the allegation of
personal involvement plausible. Gnutek acknowledges that the complaint “does not
go into specifics on the role that each of [the Individual Defendants] played,” and
argues that if the allegation that all were “involved in the critical decisions” is not
sufficient, than the Court should allow [him] to file an amended complaint to
provide greater factual background. R. 19 at 7. But the Court concludes that delay
in these proceedings to allow time for Gnutek to file an amended complaint is
unnecessary.
To begin with, the Individual Defendants do not cite any case law to support
their argument that further factual details regarding the nature of the personal
involvement are required. 3 Accordingly, the Court finds that the Individual
Defendants have waived this argument. See Davis v. Carter, 452 F.3d 686, 691-92

“Case law is more than window dressing.” Schmude v. Sheahan, 2004 WL 887387,
at *3 (N.D. Ill. Apr. 23, 2004). While “it is not the role of this court to research and
construct the legal arguments open to parties, especially when they are represented
by counsel,” Doherty v. City of Chicago, 75 F.3d 318, 324 (7th Cir. 1996), the Court
notes at least one case, not cited by the parties, that is contrary to the Individual
Defendants’ argument here. See Jones v. Sabis Educ. Sys., Inc., 52 F. Supp. 2d 868,
877 (N.D. Ill. 1999) (holding that language of complaint “falls short of alleging
personal involvement” against certain defendants who were alleged only to have
“‘joined in support’ of plaintiff’s termination,” while finding sufficient allegations
against other defendants who were alleged to have been “‘personally involved’ or to
have ‘participated’ in the actual discrimination against plaintiff”).
3

10

(7th Cir. 2006) (“perfunctory and undeveloped arguments, that are not supported by
pertinent authority, are waived”).
In any event, Gnutek alleges the job title of each of the named Individual
Defendants (R. 1, ¶¶ 7-11), and also alleges that four of the Individual Defendants
were in his supervisory chain of command (id., ¶ 41), while the remaining
Individual Defendant was an EEO Officer (id., ¶ 8). While this information is
neither extensive nor detailed in terms of describing the role each of the Individual
Defendants may have played in Gnutek’s termination, it does show a plausible
connection between the decision to terminate Gnutek and each Individual
Defendant, while also giving the Individual Defendants fair notice of why Gnutek
seeks to hold them personally responsible for his termination. See E.E.O.C. v.
Concentra Health Servs., Inc., 496 F.3d 773, 779 (7th Cir. 2007) (“Rule 8(a)(2)’s
‘short and plain statement of the claim’ must contain a minimal level of factual
detail, although that level is indeed very minimal. The classic verbal formula is that
a complaint need only be sufficiently detailed to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.”” (quoting Twombly, 550
U.S. at 555 n. 3 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (alteration in
Twombly))). Additional facts regarding the specific role each of the Individual
Defendants played in the decision to suspend and terminate Gnutek’s employment
may be developed through discovery. See, e.g., Hildebrandt v. Ill. Dep’t of Natural
Res., 347 F.3d 1014, 1040 (7th Cir. 2003) (personal involvement question resolved at
summary judgment stage); Brahos v. Brown, 2002 WL 31870544, at *2 (N.D. Ill.

11

Dec. 20, 2002) (granting summary judgment where the evidence showed that two
defendants “were not personally involved in the decision to terminate plaintiffs”),
aff’d, 79 Fed. App’x 196 (7th Cir. 2003). In short, the Court concludes that Gnutek
has adequately alleged a plausible factual basis to support his allegation of personal
participation by each Individual Defendant.
C.

ETHICS ACT CLAIM (COUNT III)

Count III purports to state a claim against the IGB and the Individual
Defendants under the Whistle Blower Protection portion of the Ethics Act, which
provides as follows:
An officer, a member, a State employee, or a State agency
shall not take any retaliatory action against a State
employee because the State employee does any of the
following:
(1) Discloses or threatens to disclose to a supervisor or to
a public body an activity, policy, or practice of any officer,
member, State agency, or other State employee that the
State employee reasonably believes is in violation of a
law, rule, or regulation.
(2) Provides information to or testifies before any public
body conducting an investigation, hearing, or inquiry into
any violation of a law, rule, or regulation by any officer,
member, State agency, or other State employee.
(3) Assists or participates in a proceeding to enforce the
provisions of this Act.
5 ILCS 430/15-10.
1.

THE IGB

The IGB argues that Gnutek’s claim against it under the Ethics Act is barred
by the Eleventh Amendment. The IGB is a five-member board that regulates all
gambling activity in Illinois under the Illinois Riverboat Gambling Act, 230 ILCS
12

10/1 et seq. See R. 1, ¶ 6. It appears therefore to be a state agency. For purposes of
the Eleventh Amendment, a suit against a state agency is the equivalent of a suit
against the state. Kroll v. Bd. of Trs. of Univ. of Ill., 934 F.2d 904, 907 (7th Cir.
1991). In general, a state is immune from suit in federal court unless the state, by
unequivocal language, waives the protections of the Eleventh Amendment or
Congress unequivocally abrogates the state’s Eleventh Amendment immunity. Id.
Illinois has waived its sovereign immunity to suit under the Ethics Act in its own
courts. See 5 ILCS 430/15-25 (providing that “[t]he circuit courts of this State shall
have jurisdiction to hear cases brought under this Article”); 745 ILCS 5/1 (stating
that “the State of Illinois shall not be made a defendant or party in any court” with
the exception of, among others, suits brought under “the State Officials and
Employees Ethics Act”); Crowley v. Watson, No. 1–14–2847, 2016 IL App (1st)
142847, ¶ 48, 51 N.E.3d 69, 81 (Ill. App. 1st Dist. Mar. 2, 2016) (noting that the
Illinois Immunity Act “was amended so that the state could be made a defendant in
actions involving a violation of the Ethics Act,” which “constitutes a clear and
unequivocal waiver of sovereign immunity by the State for Ethics Act violations”),
appeal denied, 50 N.E.3d 1139 (Ill. 2016).
But “a state can waive its sovereign immunity to suit in its own courts
without thereby being deemed to have waived its Eleventh Amendment immunity
to suit in federal court.” Osteen v. Henley, 13 F.3d 221, 224 (7th Cir. 1993); see
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (“A State’s
constitutional interest in immunity encompasses not merely whether it may be

13

sued, but where it may be sued.”) (emphasis in original); see also Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 241 (1985); Thiel v. State Bar of Wis., 94 F.3d 399,
403 (7th Cir. 1996). That is what the State of Illinois has done here. 4 Accordingly, it
would appear that Gnutek’s claim under the Ethics Act against the IGB is barred.
See Benjamin, 837 F. Supp. 2d at 851-52 (holding that the Illinois Department of
Financial and Professional Regulation has Eleventh Amendment immunity to
claims brought under the Ethics Act) (citing Block v. Ill. Sec’y of State, 2010 WL
706043, at *3 (S.D. Ill. Feb. 24, 2010)).
Gnutek appears to concede that his claim in Count III against the IGB is
barred by the Eleventh Amendment but argues that he has named two of the
Individual Defendants in their official capacities and that official capacity claims for
injunctive relief are not similarly barred. A state employee sued in his or her official
capacity is treated the same as the state where money damages are sought. Kroll,
934 F.2d at 907-08 (“official-capacity suits for retrospective relief—i.e., money
damages payable from the state treasury—generally implicate the eleventh
amendment in the absence of a waiver by the state or a valid congressional
override.”). “Under an exception to the general rule, however, official-capacity
actions may not be barred by the eleventh amendment insofar as they request
There is no suggestion that Congress unequivocally abrogated the state’s
sovereign immunity with respect to the state law claims at issue. In contrast,
“Congress validly abrogated the States’ Eleventh Amendment immunity in passing
the 1972 Act [extending Title VII’s coverage to the States].” Nanda v. Bd. of Trs. of
Univ. of Ill., 303 F.3d 817, 831 (7th Cir. 2002); see Fitzpatrick v. Bitzer, 427 U.S. 445
(1976). Accordingly, the IGB is not protected by sovereign immunity with respect to
Count I of the complaint.
4

14

prospective relief—i.e., an injunction or a declaratory judgment and monetary
damages that are ‘ancillary’ to either.” Id. at 908. This exception, based on Ex parte
Young, 209 U.S. 123, 160 (1908), and Edelman v. Jordan, 514 U.S. 651, 673 (1974),
has been justified by the perceived need “to permit the federal courts to vindicate
federal rights and hold state officials responsible to ‘the supreme authority of the
United States.’” Pennhurst State Sch. & Hosp., 465 U.S. at 105 (quoting Ex parte
Young).
Gnutek points out that the complaint alleges that two of the Individual
Defendants (Ostrowski and Cobb) are named in their official capacities “for the
limited purpose of implementing equitable relief.” R. 1, ¶¶ 7, 11. Insofar as Gnutek’s
official capacity claims against these two Individual Defendants in Count II are
concerned, Gnutek is correct that those claims survive the motion to dismiss
because the claim alleged in Count II is for a violation of Gnutek’s constitutional
rights. Pursuant to the Supreme Court’s discussion in Pennhurst, Gnutek may seek
injunctive relief against the officials involved in the alleged unconstitutional
conduct. But with respect to Gnutek’s state law claims under the Ethics Act in
Count III, the exception to Eleventh Amendment immunity does not apply because
no federal interest is involved. As the Supreme Court explained,
the need to reconcile competing interests is wholly absent
. . . when a plaintiff alleges that a state official has
violated state law. In such a case the entire basis for the
doctrine of Young and Edelman disappears. A federal
court’s grant of relief against state officials on the basis of
state law, whether prospective or retroactive, does not
vindicate the supreme authority of federal law. On the
contrary, it is difficult to think of a greater intrusion on
15

state sovereignty than when a federal court instructs
state officials on how to conform their conduct to state
law. Such a result conflicts directly with the principles of
federalism that underlie the Eleventh Amendment.
Pennhurst State Sch. & Hosp., 465 U.S. at 106 (emphasis in original). In short,
“Young and Edelman are inapplicable in a suit against state officials on the basis of
state law.” Id.
Gnutek points out that the district court in Benjamin reached a different
result. See 837 F. Supp. 2d at 852 (“Because the Eleventh Amendment does not
foreclose claims for injunctive relief (and plaintiff requests injunctive relief here),
plaintiff’s Ethics Act claims based on plaintiff’s request for injunctive relief survive
against IDFPR and Martinez (in his official capacity).”). The Benjamin court,
however, does not discuss Pennhurst, and, its ruling in this regard cannot be
reconciled with the Supreme Court’s holding in that case. Gnutek also cites to
Kashani v. Purdue University, 813 F.2d 843 (7th Cir. 1987), but that case involved a
federal constitutional, not state law, claim. In sum, Gnutek’s claim in Count III
against the IGB or any of the Individual Defendants in their official capacities,
whether seeking damages or injunctive relief, is barred by the Eleventh
Amendment and must be dismissed.
2.

THE
INDIVIDUAL
DEFENDANTS
INDIVIDUAL CAPACITIES

IN

THEIR

Finally, the Court considers Gnutek’s state law claim under the Ethics Act
against the Individual Defendants in their individual capacity. The Individual
Defendants argue that Gnutek’s claims against them under the Ethics Act should
be dismissed because the Illinois Legislature did not intend to impose individual
16

liability for violations of the Ethics Act. The problem with this argument is that the
Individual Defendants are unable to cite any case law to support it. As the
Individual Defendants acknowledge, the only court to directly consider the issue of
individual liability under the Ethics Act ruled against the Individual Defendants’
position. See Maes v. Folberg, 504 F. Supp. 2d 339, 350 (N.D. Ill. 2007). 5
The Individual Defendants argue that Maes is unpersuasive because the
court acknowledged that, “[w]ithout any guidance from the Illinois courts on the
Ethics Act, [it] [was] flying a bit blind,” and that “[t]he sole case citing the
whistleblowing provision of the Ethics Act [the Combs–Hartshorn case cited in note
5], sheds little light” because “the question of whether the Ethics Act claim could be
instituted against an individual, rather than solely a government entity” was not
specifically addressed. Id. But the Maes court nevertheless went on to analyze the
issue and concluded that individual liability was contemplated by the statute. The
Individual Defendants further argue that the Maes court later reversed itself on the
question of individual liability under the Ethics Act, but they do not provide a
citation to support that contention. The Court’s own review of the docket in the
Several other courts appear to assume, without deciding, that state employees
may be held individually liable under the Ethics Act. See Novick v. Staggers, 2012
WL 2325661, at *8 (N.D. Ill. June 19, 2012) (holding that damages claims against
individual defendants under Ethics Act were not barred by the state’s sovereign
immunity, but noting that any judgment against those individuals would have to
come out of their pockets rather than the state treasury); Combs-Harshorn v. Budz,
2007 WL 844582 (N.D. Ill. 2007) (allowing Ethics Act claim to proceed against the
individuals without expressly considering the issue); Crowley, 2016 Ill App. (1st)
142847, ¶ 48, 51 N.E.3d at 82 (upholding a jury verdict under the Ethics Act against
a state employee and the state university which employed him, which included both
an award of back pay and an award of punitive damages).
5

17

Maes case indicates that, while the defendants in that case filed a motion to
reconsider the individual liability issue, the court never ruled on it and the case
ultimately was voluntarily dismissed by the plaintiff.
As explained by the Seventh Circuit,
[b]ecause resolution of th[is] issue[ ] . . . depends on
[Illinois] law, [the court] must apply the law that would
be applied in this context by the [Illinois] Supreme Court.
If the [Illinois] Supreme Court has not spoken on the
issue, [the court] generally treat[s] decisions by the state’s
intermediate appellate courts as authoritative unless
there is a compelling reason to doubt that [those] courts
have got the law right. When [the court is] faced with two
opposing and equally plausible interpretations of state
law, [the court will] generally choose the narrower
interpretation which restricts liability, rather than the
more expansive interpretation which creates substantially
more liability.
Home Valu, Inc. v. Pep Boys, 213 F.3d 960, 963 (7th Cir. 2000) (internal quotation
marks and citations omitted).
While no Illinois case law directly confronts the question of individual
liability under the Ethics Act, the Illinois Appellate Court in Crowley upheld a jury
verdict under the Ethics Act against a state employee that included an award of
punitive damages. The court did not say whether the employee was jointly and
individually liable for the punitive damages award along with the state, 6 but in
upholding that award, the court stated somewhat cryptically (in the context of
noting that the state had waived sovereign immunity for claims under the Ethics
Act) that “the Ethics Act makes no distinction between individual versus state
The jury verdict also included an award of back pay, for which only the state could
be liable.

6

18

liability or the damages that ensue for a violation of the Ethics Act.” Crowley, 2016
Ill App. (1st) 142847, ¶ 48, 51 N.E.3d at 82. The statement appears to have been
made in furtherance of the court’s ruling that the Ethics Act’s allowance of an
award of double back pay for violations did not render an award of punitive
damages inappropriate. The court justified the allowance of both remedies by noting
that the statute expressly provides a choice of remedies and that circumstances may
exist in any given case where only one of the two remedies is available to the
plaintiff. In line with this reasoning, the court’s statement about individual versus
state liability would seem to suggest that the court was acknowledging that the
Ethics Act allowed for either or both.
Apart from the above authority, the language of the Ethics Act itself certainly
suggests that the state legislature intended for there to be individual liability for
public employees who commit violations of the Act. The Ethics Act’s prohibition
expressly extends to conduct not only of a “State agency,” but of “a State employee”
as well. 7 The Individual Defendants argue, however, that the remedies provision of
the whistle blower protection part of the Ethics Act includes remedies such as
reinstatement and back pay that are only available from the state itself:
The State employee may be awarded all remedies
necessary to make the State employee whole and to
prevent future violations of this Article. . . . Remedies
imposed by the court may include, but are not limited to,
all of the following: (1) reinstatement of the employee to
either the same position held before the retaliatory action
or to an equivalent position; (2) 2 times the amount of
See 5 ILCS 430/15-10 (“An officer, a member, a State employee, or a State agency
shall not take any retaliatory action . . . .”) (emphasis added).
7

19

back pay; (3) interest on the back pay; (4) the
reinstatement of full fringe benefits and seniority rights;
and (5) the payment of reasonable costs and attorneys’
fees.
5 ILCS 430/15-25. The Individual Defendants then go on to make a legislative
history argument based on this provision. While it is not entirely clear what that
argument is, the Individual Defendants appear to be saying that the prohibition
language in § 15-10 originally omitted state employees from its coverage, which
supposedly explains why the remedies language in § 15-25 specifically mentions
only reinstatement and back pay, two remedies that can only come from the state. 8
The Individual Defendants argue that the reason the state legislature added state
employees to § 15-10 was not to impose individual liability for violations of the
whistleblower protection but to give the state a basis for imposing sanctions against
a state employee under § 50-5 of the Ethics Act. Section 50-5 provides that a person
who intentionally violates the whistle blower provision of the Act (Article 15) is
guilty of a Class A misdemeanor, and, in addition to any other penalty that may
apply, whether criminal or civil, “may be subject to discipline or discharge by the
appropriate ultimate jurisdictional authority.” 5 ILCS 430/50-5(a) and (f). Insofar as
the civil remedies for a violation of the whistle blowing protection of the Ethics Act
See R. 17 at 11 (“[W]hen originally contemplated as House Bill 3412, which upon
passage became Public Act 093-0615, the whistleblower provisions of Section 15-10
related only to retaliatory actions against state employees that were committed by
‘[a]n [executive or legislative branch constitutional] officer, a member [of the
General Assembly], or a State agency[.]’ Pub. Act 93-0615. Although a state
employee could suffer a retaliatory act, as originally worded, a state employee could
not subject another state employee to the same. Accordingly, there was no
ambiguity as to the intent to hold the state agency responsible for compensating an
aggrieved person via the remedies found in Section 15-25.”).
8

20

are concerned (§ 15-25), the Individual Defendants contend that the only effect of
adding state employees to § 15-10 is to facilitate a court awarding remedies for a
state employee’s violations against the state agency.
The Individual Defendants offer a theory concerning legislative intent that
may be plausible but is not supported with citation to any actual authority
demonstrating that legislative intent. Accordingly, the Court must construe the
language of the relevant statutory provisions without reference to legislative intent
as reflected in legislative history. In doing so, the Court will apply the principles of
statutory construction that an Illinois court would apply, pursuant to which the
court’s
primary objective . . . is to ascertain and effectuate the
intent of the legislature … by applying the plain and
ordinary meaning of the statutory language. When
construing statutory language, [an Illinois court will] view
the statute as a whole, construing words and phrases in
light of other relevant statutory provisions and not in
isolation. In addition, a court may consider the reason for
the law, the problems sought to be remedied, the purposes
to be achieved, and the consequences of construing the
statute one way or another.
Crowley, 2016 IL App (1st) 142847, ¶ 44, 51 N.E.3d at 80. The plain and ordinary
meaning of the statutory language suggest that individual liability against a state
employee was intended. Moreover, while the Seventh Circuit has said that when in
doubt, construe the statute narrowly to restrict liability, Home Valu, Inc. 213 F.3d
at 963, in this case individual liability appears to be consistent with the stated
purpose of the remedies provision of the statute, which is to award an injured
employee “all remedies necessary to make the State employee whole and to prevent
21

future violations of this Article.” 5 ILCS 430/15-25; see, e.g., Maes, 504 F. Supp. 2d
at 349 (holding that the phrase used in the remedies provision of the Act—
“including but not limited to”—suggested breadth rather than limitation on
remedies). The Individual Defendants’ argument essentially relies on a restrictive
reading of the statute when the statutory language suggests an expansive one. See
Crowley, 2016 IL App (1st) 142847, ¶ 49, 51 N.E.3d at 82 (holding that an expansive
interpretation of the remedies provision to include both double back pay and
punitive damages was “consistent with the policy and purpose of the Ethics Act”).
As the court stated in Crowley, the actions of a whistle blower plaintiff
protect[ ] the public’s right to know of inappropriate
[governmental] activities . . . . Indeed, [k]eeping
government efficient and honest depends on the vigilance
of those most involved in its day-to-day operations, its
employees. Those employees, however, are unlikely to
step forward and speak out unless they are assured that
they will not be the target of retribution by their
coworkers and superiors.
Id. (internal quotation marks and citations omitted).
In short, the expansive language in the statute regarding making the injured
employee whole, the policies and problems sought to be remedied by the statute,
and the reasoning of the Illinois Appellate Court in Crowley in upholding an award
of punitive damages under the Act, collectively outweigh the listing of employercentric remedies in § 15-25 of the Act and the absence of any specific direction in the
statute permitting individual liability. To the extent that any legislative intent can
be inferred from the addition of “State employee” to § 15-10, the Court must
conclude, contrary to the Individual Defendants’ argument, that the state
22

legislature intended by that addition to make state employees subject to personal
liability under the Act.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss, R. 16, is (1) granted
as to Gnutek’s claims in Count III against the IGB and Individual Defendants in
their official capacities, and (2) denied in all other respects.
ENTERED:
___
Dated: June 21, 2017

23

Honorable Thomas M. Durkin
United States District Judge