Pierce et al v. Commonfields of Cahokia Public Water District et al
Filing
104
ORDER granting in part and denying in part 77 Motion for Summary Judgment. Signed by Magistrate Judge Stephen C. Williams on 9/20/12. (amv)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PEGGY PIERCE, ISAAC TURNER,
MARCUS LUSTER, and DENNIS
TRAITEUR, JR., ,
Plaintiff,
vs.
COMMONFIELDS OF CAHOKIA
PUBLIC WATER DISTRICT, MARILYN
STRINGFELLOW, CAROLYN
TOUCHETTE, MIKE MILLATTI, and
ERMA MILLARD,
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Case No. 10–cv–182–SCW
Defendants.
MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
I. Introduction
Before the Court is Defendants’ Motion for Summary Judgment and Supporting
Memorandum (Doc. 77). Specifically, Defendants seek summary judgment on all the claims of Plaintiffs
Peggy Pierce, Isaac Turner, Marcus Luster, and Dennis Traiteur, Jr. Plaintiff Dennis Traiteur, Jr. has
filed a Response (Docs. 79, 80, & 81) in opposition to the summary judgment. Plaintiff Peggy Pierce
has also filed a Response in opposition; however, the Court has since been informed that Plaintiff Pierce
has settled her claims with Defendants and as such the Court excludes her from the summary judgment
motion. Plaintiffs Isaac Turner and Marcus Luster have failed to respond to the pending summary
judgment motion. Based on the following, the Court GRANTS IN PART AND DENIES IN PART
Defendants’ motion for summary judgment (Doc. 77).
II. Factual Background
Plaintiffs Peggy Pierce, Isaac Turner, Marcus Luster, and Dennis Traiteur, Jr., filed suit
against Commonfields of Cahokia Public Water District (hereinafter “Commonfields”) as former
employees (Doc. 2-1). Counts I-IV allege Plaintiffs were retaliated against for their political affiliation,
and that this violated their freedom of speech under the First Amendment and their right to equal
protection (Id.). These same federal claims are also brought against the individual defendants Marilyn
Stringfellow, Carolyn Touchette, Erma Millard, and Mike Millatti. Count IX of Plaintiffs’ Complaint
is brought specifically by Traiteur, Jr. for a state law breach of contract claim against Commonfields.
Counts X-XI, brought by Plaintiffs Turner and Luster are also state law breach of contract claims. On
February 29, 2012, Defendants filed a motion for summary judgment (Doc. 77). Plaintiff Pierce and
Traiteur, Jr. have filed responses (Docs. 82, 83, 84 and 79, 80, 81, respectively). Defendants have filed
reply briefs to both responses (Docs. 90 & 89, respectively). To this date, Plaintiffs Luster and Turner
have failed to file responsive pleadings.
This action stems from the September 9, 2009 termination of Plaintiffs’ employment
by Defendants. Defendant Traiteur, Sr. is the general manager of Commonfields of Cahokia Public
Water District (Doc. 77-1 at p. 22). The general manager has the authority to employ, discharge, and
fix the compensation of all employees (Id. at p. 23). Traiteur, Sr. acknowledged that everyone was hired
for political reasons (Id. at p. 77). The general manager is required to give the board a budget containing
all operating expenses, and the board has to pass the budget before it is accepted (Id. at pp. 77). The
budgets or amended budgets have to be voted on by the board during a meeting (Id. at pp. 82-83).
Marilyn Stringfellow was elected to the board of trustees for Commonfields in 2007
(Doc. 77-3 at p. 8). In the election of 2009, Stringfellow campaigned for Evans, Jones, and Bergman
who were unsuccessful (Id. at pp. 9-10). According to Carolyn Touchette, Peggy Pierce, Denny Traiteur,
Sr., and Denny Traiteur, Jr. campaigned for those candidates as well (Doc. 77-5 at p. 21). Carolyn
Touchette was elected to the board in 2009 with Erma Millard and Mike Millatti (Id. at p. 11).
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Employee Angie Kritz campaigned for Touchete, Millatti, and Millard (Id. at p. 21). After being elected,
the board members eliminated certain positions allegedly to “get ahold of the budget.” (Doc. 77-3 at
p. 17). The board relied on statements made by Dennis Traiteur, Sr. Regarding the budget deficit
because he would not provide documents for the board to view (Doc. 77-5 at p.50; Doc. 77-3 at pp. 2122).
Dennis Traiteur, Jr. was hired by Commonfields on April 27, 2009 (Doc. 77-4 at p. 8).
Traiteur, Jr. was hired by his father Dennis Traiteur, Sr. without board approval (Doc. 77-1 at p. 26).
Prior to being hired by his father, Traiteur, Jr. had no experience with wastewater or supervisory skills.
(Doc. 77-4 at pp. 37-38). Traiteur, Jr. entered into a two year contract of employment with
Commonfields with the contract to run from April 27, 2009 to April 27, 2011 (Doc. 71 Ex. A). Under
the employment contract he could only be fired for “just cause” (Id. at p. 2). Traiteur, Jr.’s official title
was “Assistant Superintendent” and his official job description was:
Directs and supervises the operation and maintenance of the Commonfields of Cahokia
Public Water District’s water and wastewater distribution system. Serves as the first line
supervisor for all employees working in the Water and Wastewater Distribution
Division. Reports directly to the Superintendent and/or General Manager.
(Doc. 80 Ex. A; Doc. 77-4 at p. 8). Traiteur, Jr. was discharged from employment with Commonfields
when his position was eliminated by the board through Resolution #62 (Doc. 80-2).
III. Summary Judgment Standard
Under FEDERAL RULE OF CIVIL PROCEDURE 56, summary judgment is proper
only if the moving party can demonstrate “that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” Ce lo te x Co rp . v . Catre tt, 477 U.S. 317,
322 (1986). Se e als o Ru ffin -T h o m p kin s v . Exp e rian In fo rm atio n So lu tio n s , In c ., 422 F.3d 603,
607 (7th Cir. 2005). The burden is upon the moving party to establish that no material facts are in
genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving
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party. Ad ic ke s v . S.H. Kre s s & Co ., 398 U.S. 144, 160 (1970). Se e als o Law re n c e v . Ke n o s h a
Co u n ty , 391 F.3d 837, 841 (7th Cir. 2004). A fact is material if it is outcome determinative under
applicable law. An d e rs o n v . Lib e rty Lo b b y , In c ., 477 U.S. 242, 248 (1986); B allan c e v . City o f
Sp rin g fie ld , Illin o is Po lic e De p artm e n t, 424 F.3d 614, 616 (7th Cir. 2005); Ho tte n ro th v . Villag e
o f Slin g e r, 388 F.3d 1015, 1027 (7th Cir. 2004). Even if the facts are not in dispute, summary
judgment is inappropriate when the information before the court reveals that “alternate inferences can
be drawn from the available evidence.” Sp ie g la v . Hu ll, 371 F.3d 928, 935 (7th Cir. 2004). Se e als o
An d e re r v . Jo n e s , 385 F.3d 1043, 1064 (7th Cir. 2004).
The inquiry performed is the threshold inquiry of determining whether there is the need
for a trial, whether, in other words, there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either party.
[T]his standard mirrors the standard for a directed verdict under FEDERAL RULE OF
CIVIL PROCEDURE 50(a), which is that the trial judge must direct a verdict if, under
the governing law, there can be but one reasonable conclusion as to the verdict.
An d e rs o n v . Lib e rty Lo b b y , In c ., 477 U.S. 242, 250 (1986). Se e als o Ce lo te x Co rp o ratio n v .
Catre tt, 477 U.S. 317, 322-23 (1986); Pac km an v . Ch ic ag o T rib u n e Co ., 267 F.3d 628, 637 (7th Cir.
2001); Sy b ro n T ran s itio n Co rp o ratio n v . Se c u rity In s u ran c e Co m p an y o f Hartfo rd , 107 F.3d 1250,
1255 (7th Cir. 1997).
A showing of a mere factual disagreement between the parties is insufficient, the factual
issue must be “material,” meaning that the issue must be one affecting the outcome of the suit. Se e
O u tlaw v . Ne w kirk, 259 F.3d 833, 837 (7th Cir. 2001). A moving party is entitled to judgment as a
matter of law where the non-moving party “has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof.” Ce lo te x, 477 U.S. at 323.
“[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily
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renders all other facts immaterial.” Id .
The Seventh Circuit has stated that summary judgment is “the put up or shut up
moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact
to accept its version of the events.” Ste e n v . My e rs , 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting
Ham m e l v . Eau Galle Ch e e s e Fac to ry , 407 F.3d 852, 859 (7th Cir. 2005) (other citations
omitted)). The moving party bears the initial burden of producing evidence that identifies “those
portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes to demonstrate the absence of a genuine issue of material fact.”
O u tlaw , 259 F.3d at 837 (quoting Lo g an v . Co m m e rc ial Un io n In s . Co ., 96 F.3d 971, 978 (7th Cir.
1996)). After the moving party has satisfied its burden to establish that no genuine issue of material fact
exists, the burden shifts to the non-moving party to “set out specific facts showing a genuine issue for
trial.” FED .R.CIV.P. 56(e)(2). The non-moving party “may not rely merely on allegations or denials
in its own pleading.” Id . The opposing party must, instead, “go beyond the pleadings and by her own
affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file’ designate ‘specific
facts showing there is a genuine issue for trial.’” Ce lo te x, 477 U.S. at 324.
IV. Analysis
A.
Plaintiffs Isaac Turner and Marcus Luster
As to Plaintiffs Isaac Turner and Marcus Luster, Defendants argue that they are entitled
to summary judgment on all of Plaintiff Turner’s and Luster’s claims. Although Plaintiff Turner and
Luster were given notice of the filing of the summary judgment motion, neither Plaintiff has responded
to the motion as of this date. The effect of a non-movant’s failure to respond to a motion for summary
judgment is that “it constitutes an admission by the non-movant that there are no disputed issues of
genuine fact...” Fly n n v . Sn ad ah l, 58 F.3d 283, 288 (7th Cir. 1995). “[T]he district court clearly has
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authority to enforce strictly its Local Rules, even if a default results.” T o b e l v . City o f Ham m o n d , 94
F.3d 360, 362 (7th Cir. 1996). “Failure to timely file a response to a motion may, in the Court’s
discretion, be considered an admission of the merits of the motion.” LOCAL RULE 7.1(c); s e e als o
FED .R.CIV.P. 56(e). “District courts are allowed to strictly enforce summary judgment deadlines...”
William s v . Sh in s e ki, 373 Fed.Appx. 611, 614 (7th Cir. 2010) (quoting Ray m o n d v . Am e rite c h
Co rp ., 442 F.3d 600, 607-8 (7th Cir. 2006)). As Plaintiff Turner and Luster have failed to timely
respond to Defendants’ motion for summary judgment, the Court deems their failure to respond an
admission to the merits of Defendants’ motion. Thus, the Court finds that Defendants are entitled to
summary judgment on all of Plaintiffs Turner’s and Luster’s claims against them. Accordingly, the
Court GRANTS summary judgment for Defendants as to Plaintiff Turner and Luster.
B.
Dennis Traiteur, Jr.
1.
Duplicative Federal Claims
Defendants first argue that they are entitled to summary judgment on Count VIII
because Plaintiff Traiteur, Jr. does not specifically allege that the claims are against the individual
defendants in their individual capacity and thus the claims are official capacity claims which are
duplicative of the same claim against Defendant Commonfields. In support of their claim, Defendants
rely heavily on Hill v . Sh e lan d e r, 924 F.2d 1370, 1372 (7th Cir. 1991). However, in Hill, the Seventh
Circuit stated that it would not presume that a defendant was being sued in his official capacity every
time that the complaint fails to clearly indicate which capacity a defendant is being sued in. Id . at 1373.
Instead, the Seventh Circuit stated that in cases where the capacity of the defendant is not specified, it
would look at the substance or nature of the claim alleged:
Where the plaintiff seeks injunctive relief from official policies or customs, the
defendant has been sued in her official capacity; where the plaintiff alleges tortious
conduct of an individual acting under color of state law, the defendant has been sued
in her individual capacity.
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Mille r v . Sm ith , 220 F.3d 491, 494 (7th Cir. 2000) (citing Hill, 924 F.2d at 1373-74.). Defendants
have failed to point to any case law specifically preventing a party from suing individuals in both their
official and individual capacity.
Here, in looking at the complaint “in its entirety”, it is clear to the Court that Plaintiff
Traiteur, Jr. intended to raise claims against the board members in their individual capacity. Plaintiff
Traiteur, Jr. raises two separate § 1983 claims, one in Count IV against the Commonfields of Cahokia
Public Water District and one in Count VIII against Marilyn Stringfellow, Carolyn Touchette, Mike
Millatti, and Erma Millard. While Count VIII does not specify that the claim is against the defendants
in their individual capacity, to construe the separate claim as in their official capacity would, as
defendants put it, make the claim redundant as a claim against individuals in their official capacity is
really just a claim against the municipality. Po u rg h o rais h i v . Fly in g J, In c ., 449 F.3d 751, 765 (7th
Cir. 2006) (“when a plaintiff sues an individual officer in his official capacity, the suit is treated
as if the plaintiff has sued the municipality itself.”). Thus, the Court finds that from looking at the
substance of Plaintiff Traiteur, Jr.’s Complaint that Count VIII is intended to be a claim against
defendants in their individual capacity. This finding is further backed by the defendants’ own response
to the Complaint. In Defendants’ Answer, they raise the defense of qualified immunity as well as
reiterate the defense in the present motion for summary judgment. A defense of qualified immunity
is only applicable to individual capacity complaints, thus it is clear to the Court that Defendants
themselves construed Plaintiff’s complaint as also raising individual capacity claims. Ste v e n s v .
Um s te ad , 131 F.3d 697, 707 (7th Cir. 1997) (court must also consider how parties have treated
the case in determining what capacity a plaintiff is suing in, finding that parties operated under
assumption that defendant was sued in individual capacity as defendant raised qualified
immunity as a defense). Thus reading the complaint as a whole, the Court finds that Count VIII is
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a claim against the individual defendants in their individual capacity.
2.
Legislative Immunity
The individual defendants also maintain that they are entitled to summary judgment
because, even if Plaintiff Traiteur, Jr. has stated a claim against the individual defendants for First
Amendment violations, Defendants have absolute legislative immunity. Legislative immunity protects
government officials when they are acting in their legislative capacity. Rate re e v . Ro c ke tt, 852 F.2d
946, 949 (7th Cir. 1988) (citing T e n n e y v . B ran d h o v e , 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed.
1019(1951)); B ag le y v . B lag o je v ic h , 646 F.3d 378, 391 (7th Cir. 2011) (“Absolute legislative
immunity attaches to all actions taken ‘in the sphere of legitimate legislative activity.’” (quoting
B o g an v . Sc o tt-Harris , 523 U.S. 44, 54, 118 S.Ct. 966 (1998))). However, legislative immunity only
applies to those legislators acting in their legislative capacity and does not protect legislators from
administrative or executive acts. Rate re e , 852 F.3d at 950 (citing T e n n e y , 341 U.S. at 379, 71 S.Ct.
at 789-90). Determining whether an action is legislative depends “on the nature of the act, rather than
on the motivie or intent of the official performing it.” B ag le y , 646 F.3d at 391. While the Seventh
Circuit has generally agreed that employment decisions are generally administrative, “employment
decisions are not administrative when accomplished through traditional legislative functions.” Rate re e ,
852 F.2d at 950. Specifically, in Rateree, the Seventh Circuit held that a budgetary decision to eliminate
a position altogether was a legislative action as it eliminates the employee’s position altogether and
another person was not hired to replace the employee. Id . Similarly, in B e n e d ix v . Villag e o f
Han o v e r Park, IL, 677 F.3d 317 (7th Cir. 2012), the Seventh Circuit found that an ordinance
abolishing a position and thus terminating an employee who held that position was a legislative action
entitled to legislative immunity. The Seventh Circuit held that the ordinance was a legislative action as
it was “adopted through the legislative process, and [had] the force of law.” B e n e d ix, 677 F.3d at 318.
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Further, a legislative action is protected by legislative immunity “no matter the motives of those who
proposed, voted for, or otherwise supported the proposal.” Id .
Here, Defendants Stringfellow, Touchette, Millatti, and Millard contend that their
action of eliminating Plaintiff Traiteur, Jr.’s position is entitled to legislative immunity because they
voted to adopt a resolution which eliminated Plaintiff’s position, thus making their actions purely
legislative. Plaintiff Traiteur, Jr. has not addressed this issue in his responsive brief and the Court agrees
with Defendants’ argument. A review of Resolution 62 which the individual defendants signed on
September 9, 2009 shows that the board members eliminated the position of “Assistant Superintendent”
and terminated the employment of Dennis Traiteur, Jr., who held that position (Doc. 77-7 Ex. 5). Like
in Benedix and Rateree, the board’s resolution sought to eliminate the position of “Assistant
Superintendent” altogether, which amounts to a legislative action and thus is protected by legislative
immunity.1 It does not matter what the individual board members’ motives were, whether for budgetary
means or to target a specific employee. Se e B e n e d ix, 677 F.3d at 318 (finding board trustees were
entitled to legislative immunity despite the fact that plaintiff argued that the ordinance targeted
her because of her political associations). Instead, all that matters is that their action was adopted
through a legislative process and sought to eliminate the position held by Plaintiff, thus making it a
legislative action rather than an administrative action. Accordingly, the Court finds that the individual
defendants’ actions are protected under the doctrine of legislative immunity and thus the Court
GRANTS summary judgment as to Plaintiff’s First Amendment violation claim under § 1983 against
1
The Court notes that not only did Commonfield’s Resolution 62 eliminate the position of
“Assistant Superintendent” entirely but also specifically discharged and terminated Dennis Traiteur,
Jr. as the person currently employed in that eliminated position. It does not appear necessary that
Defendants also terminated Plaintiff’s employment in the resolution nor does Plaintiff argue that the
additional language terminating Plaintiff’s employment amount to an administrative, rather than
legislative, action.
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Defendants Marilyn Stringfellow, Carolyn Touchette, Mike Millatti, and Erma Millard.2
However, as to Defendant Commonfields, the doctrine of legislative immunity does not
apply. “Municipalities do not enjoy any kind of immunity from suits for damages under § 1983.”
B e n e d ix, 677 F.3d at 318-19. Thus, legislative immunity does not bar a § 1983 claim against
Commonfields, nor is Commonfields entitled to qualified immunity on Plaintiff’s claim.
3.
First Amendment Violations
Defendant Commonfields maintains that it is entitled to summary judgment on Plaintiff
Traiteur Jr.’s§ 1983 claim for violation of his First Amendment rights. In order for a municipal entity
to be liable under § 1983, it must “(1)...[have] a permanent and well-settled municipal custom or practice
that, although not authorized by official law or policy, was the moving force behind the plaintiff’s
constitutional injury; or (2) an individual with final policy-making authority for the municipality (on the
subject in question) caused the constitutional deprivation.” Vale n tin o v . Villag e o f So u th Ch ic ag o
He ig h ts , 575 F.3d 664, 674 (7th Cir. 2009) (citing Mo n e ll v . City o f Ne w Yo rk, 436 U.S. 658, 690,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Here, Plaintiff admits that he is pursuing his claim against
Commonfields only under the second theory of liability, that an individual with final policy-making
authority, namely the board members, caused the constitutional deprivation.3
An individual’s political party affiliation enjoys protection under the First Amendment.
De lap az v . Ric h ard s o n , 634 F.3d 895, 899 (7th Cir. 2011) (citing Gu n v ille v . Walke r, 583 F.3d
2
The Court need not decide whether the doctrine of qualified immunity also bars Plaintiff’s
claims against the individual defendants as the Court has already determined that the individual
defendants are entitled to summary judgment under the legislative immunity doctrine.
3
The Court notes that Defendant Commonfields also argues that it is entitled to summary
judgment on Plaintiff’s equal protection claim as well as his First Amendment political affiliation
claim. However, Plaintiff does not allege in his Complaint nor does he contend in his responsive
pleading that Defendant violated his right to equal protection. Instead, Plaintiff only argues that
Defendant violated his First Amendment rights by firing him for his political affiliation.
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979, 984 (7th Cir. 2009)). An employer violates the First Amendment when an individual is fired,
demoted, or removed from public employment based on his political affiliation. Id .; s e e als o Ze ran te
v . De Lu c a, 555 F.3d 582, 584-85 (7th Cir. 2009)(citing Ple v a v . No rq u is t, 195 F.3d 905, 911 (7th
Cir. 1999)). In order to establish a prima facie case for a violation of an employee’s First Amendment
rights, an employee must present evidence that “(1) their speech was constitutionally protected; (2) they
suffered a deprivation likely to deter free speech; and (3) their speech was the but-for cause of the
employer’s actions. De lap az, 634 F.3d a 900 (citing Gu n v ille , 583 F.3d at 983; Fairle y v . An d re w s ,
578 F.3d 518, 525-26 (7th Cir. 2009) (requiring but-for causation)); s e e als o Ge o rg e v . Walke r, 535
F.3d 535, 538 (7th Cir. 2008). In order to show causation, a party must show that the employer knew
of an individual’s political activities as a threshold question. Ze ran te , 555 F.3d at 585; De lap az, 634
F.3d at 900. Once a party has met his prima facie case, the burden then shifts to the defendant to
show that it had a legitimate, non-political reason for firing the employee. Ze ran te , 555 F.3d at 585
(citing Hall v . B ab b , 389 F.3d 758, 762 (7th Cir. 2004)). In other words, the defendants must show
that they would have made the same employment decision absent the protected speech. Ge o rg e , 535
F.3d at 538 (citing Mas s e y v . Jo h n s o n , 457 F.3d 711, 717 (7th Cir. 2006)). The burden then returns
to the plaintiff to show that the proffered reasons were pretextual. Id .
Here, Plaintiff Taiteur, Jr. has met his prima facie case. Plaintiff has offered evidence
that the Defendant knew of Plaintiff’s political activities. During the election, Plaintiff Traiteur, Jr.
participated in the elections as a poll watcher (Doc. 77-4 at p.15). Defendant Touchette testified at her
deposition that he knew that Traiteur Jr. campaigned for the opposing candidates. Plaintiff has also
offered evidence that he was fired for his political activities. Plaintiff offers evidence that after the
candidates he supported lost, Plaintiff, along with four other employees who also supported the losing
candidates, were terminated. Traiteur Sr., Commonfields general manager, also testified that Plaintiff,
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along with the others, were fired for their political oppositions. Thus, the Court finds that Plaintiff has
met his prima facie case.
As Plaintiff has established his prima facie case, the burden shifts to Defendant
Commonfields to show that it had a legitimate non-political reason for firing Plaintiff Traiteur, Jr.
Specifically, Defendant argues that it fired Plaintiff for budgetary concerns and because it felt that
Plaintiff was not qualified. Defendant maintains that it fired Plaintiff because of budgetary concerns.
Traiteur Sr. informed the new board members that Commonfields had a deficit, no money in the
budget, and was on the verge of bankruptcy. Several board members testified that they voted to
eliminate Plaintiff Traiteur, Jr.’s position because of the budget problems (Doc. 77-7 at p. 84; Doc. 77-8
at p. 31). Board members testified that they felt eliminating jobs would help to reduce the budget.
Touchette also testified that Traiteur Jr.’s position was eliminated because the position was unnecessary
and because they believed that Plaintiff was not qualified for the job (Doc. 77-5 at pp. 108-09).
However, Plaintiff has offered evidence that the Defendant’s stated reasons are merely
pretextual. Specifically, Plaintiff has offered evidence that the reason for firing Plaintiff could not have
been budgetary because there was actually money in the budget. Commonfields had over $1.5 million
in cash and cash equivalents and the annual financial report showed net assets increased in excess of
$700,000 with total net assets over $5 million (Doc. 79-3 at p. 66). Plaintiff has also offered evidence
that Defendant’s vote on September 9, 2009 was part of course of conduct for political retribution as
Plaintiff campaigned for individuals opposing the board members. When the new board members won
the election, they fired individuals who supported the opposing candidates including Plaintiff, Mr.
Traiteur Sr., and Mr. Traiteur Sr.’s assistant Ms. Pfeffer. Individuals who supported the board members
in the election were not fired and Plaintiff has presented evidence that one of the supporters was even
promoted despite being labeled the least capable employee by her supervisor. Thus, the Court finds that
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there is an issue of fact as to whether Plaintiff was fired from his position because of his political
affiliations. The parties dispute numerous facts in this case, including the cause of why Plaintiff was
fired. Accordingly, the Court can not grant summary judgment on this issue at this time.
4.
State Law Breach of Contract
Defendant Commonfields also argues that it is entitled to summary judgment on Plaintiff
Traiteur, Jr.’s state law breach of contract claim. Defendant Commonfield argues that it is entitled to
summary judgment because Plaintiff’s contract was void. Specifically, Defendant argues that the board
was neither aware of the contract, voted to approve the contract, or appropriated the funds for
Plaintiff’s hiring, thus making his contract void.
Under the Public Water District Act, the trustees of the district constitute a board which
“shall exercise all the powers, manage and control all the affairs and properties of such district, and shall
have power to adopt a corporate seal for such district.” 70 ILCS 3705/5. The board may, in its
discretion and by a resolution passed by majority vote, provide for the appointment of a lawyer,
engineer, and other officers. 70 ILCS 3705/7. Further, the board may appoint a general manager who
shall serve for a term of five years. 70 ILCS 3705/7. A general manager “shall have power to employ,
discharge and fix the compensation of all employees of the district.” Id .
Defendant Commonfields argues that the only evidence in support of Plaintiff’s claim
of breach of contract that he offers is that Traiteur, Sr. had power to hire and fix compensation for
employees, but Commonfields argues that under 70 ILCS 3705/13 the Board was required to approve
the funds for Traiteur, Jr.’s salary and because it did not authorize those expenditures in excess of the
budget, his contract is void. Defendant Commonfields contends that Illinois’s “prior appropriation
rule” applies to 70 ILCS 3705/13. The “prior appropriation rule” was established by the Illinois
Supreme Court in interpreting Municipal Code 8-1-7. Se e Me tro p o litan Wate r Re c lam atio n Dis tric t
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o f Gre ate r Ch ic ag o v . Civ il Se rv ic e B o ard o f Me tro p o litan Wate r Re c lam atio n Dis tric t o f Gre ate r
Ch ic ag o , 291 Ill.App.3d 448, 492-93, 684 N.E.2d 786, 789 (1st Dist. 1997) (citing Ch ic ag o
Patro lm e n ’s As s o c iatio n v . City o f Ch ic ag o , 56 Ill.2d 503, 309 N.E.2d 3 (1974)). The Illinois
Supreme Court, in interpreting a provision of the Municipal Code, found that under the terms of the
statute, “any contract made without a prior appropriation is null and void.” Id . 4 “Illinois courts have
consistently followed this principle, referring to it as the prior appropriation rule.” Id .; Kle kam p v .
City o f B u rb an k, 266 Ill.App.3d 81, 84, 639 N.E.2d 241, 243-44 (5th Dist. 1994) (Prior
appropriation rule was established in the Illinois Municipal Code and interpreted by the Illinois
Supreme Court in Lin d ah l v . City o f De s Plain e s , 210 Ill. App.3d 281, 568 N.E.2d 1306 (1991) and
Jo rd an v . Civ il Se rv ic e Co m m is s io n , 246 Ill.App.3d 1047, 617 N.E.2d 142 (1993)). The First
District in Metropolitan Water Reclamation District of Greater Chicago, applied the rule to Section 5.8 of the
Metropolitan Water Reclamation District Act as the terms of the Act were similarly worded to Section
8-1-7 of the Municipal Code. Me tro p o litan Wate r Re c lam atio n Dis tric t o f Gre ate r Ch ic ag o , 291
Ill.App.3d at 492-93, 684 N.E.2d at 789.5
4
In Chicago Patrolmen’s Association, the Illinois Supreme Court was asked to interpret section
8-7-1 of the Municipal Code, which provided that:
[N]o contract shall be made by the corporate authorities, or by any committee or
member thereof, and no expenses shall be incurred by any of the officers or
departments of any municipality, whether the object of the expenditure has been
ordered by the corporate authorities or not, unless an appropriation has been previously
made concerning that contract or expense. Any contract made, or any expense
otherwise incurred, in violation of the provisions of this section shall be null and void.”
Me tro p o litan Wate r Re c lam atio n Dis tric t o f Gre ate r Ch ic ag o , 291 Ill.App.3d at 492,
684 N.E.2d at 789 (citing 65 ILCS 5/8-1-7 (West 1994)).
5
The provision of the Metropolitan Water Reclamation District Act that the First District
analyzed was very similar to the Municipal Code as it provided that:
No contract shall hereafter be made, or expenses or liability incurred by the said board
Page 14 of 17
Defendant argues that the “prior appropriation rule” is equally applicable to 70 ILCS
3705/13, making Plaintiff Traiteur, Jr.’s contract void as the board failed to appropriate the necessary
funds to account for his salary. The Court finds several problems with this argument. First, the Court
fails to see how the “prior appropriation rule” under Municipal Code 8-7-1 is applicable to 70 ILCS
3705/13. The provisions of code which have been construed to establish a “prior appropriation rule”
are far different in their terms than 70 ILCS 3705/13. Both Municipal Code 8-7-1 and the Metropolitan
Water Reclamation District Act 5.8 set out in their terms that no contract shall be made unless an
appropriation has been made by the board. Further, both code sections specifically state that any
contract made in violation of the section is null and void. 70 ILCS 3705/13 has no such clear terms
voiding a contract. In fact, Section 3705/13 only states that the board may adopt a budget prepared
by the general manager along with any revisions and that “no expenditures for operation and
maintenance expenses in excess of the budget shall be made during such fiscal year, unless unanimously
authorized and directed by the board.” The language in Section 3705/13 is a far cry from the specific
language set out in Section 8-7-1 and Section 5.8 which specifically prohibit contracts being made
without appropriations previously being made by the board. Nor does Section 3705/13 have the
specific language voiding all contracts made in violation of the section. Thus, it is far from clear that
the language in Section 3705/13 falls under the “prior appropriation rule” as Defendant argues.
of trustees, or any member or committee thereof, or by any person or persons, for or
in its behalf not-withstanding the expenditure may have been ordered by the said board
of trustees, unless an appropriation thereof shall have been previously made by said
board in the manner aforesaid. No officer, head of a department, or commission shall,
during a budget year, expend or contract to expend any money or incur any liability, or
enter into any contract, which, by its terms, involves the expenditure of money for any
of the purposes for which provision is made in the appropriation ordinance in excess
of the amounts appropriated in said ordinance. Any contract, verbal, or written, made
in violation of this section shall be null and void...”
70 ILCS 2605/5.8 (1994).
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Further, not withstanding the question of whether Section 3705/13 prevents contracts
from being formed without prior appropriation, the Court finds that there are clear issues of fact as to
whether the board had approved the appropriations for Plaintiff Traiteur, Jr.’s position. Defendant
argues that none of the board trustees were aware of the contract, voted on or approved the
appropriation of funds for Plaintiff’s contract. Plaintiff, however, points to the fact that he was hired
in April 2009, three months before the end of the budget year which ends on June 30, 2009, and that
the board presumably approved the new budget which assumably had Plaintiff on there as an employee
as they transferred money at the July 2009 meeting for operating expenses which would have included
Plaintiff’s salary. Further, Plaintiff points to testimony from Stringfellow that there might have been
a special board meeting where his hiring was approved and that the board had approved the hiring of
three extra positions (Doc. 79-2 at p. 67 and Doc. 81-3 at pp. 122-23). Plaintiff also points out that if
his position had not been appropriated, he would have been discharged on July 1, 2009 and not some
two months later as the funds would not have been in the budget for his position when the new budget
began. Thus, the Court finds that there is an issue of fact as to whether the board had appropriated
funds for Plaintiff’s position in the budget. Accordingly, the Court cannot grant summary judgment
on Plaintiff’s breach of contract claim at this time and DENIES Defendant Commonfield’s motion for
summary judgment on this claim.
V. Conclusion
Accordingly, the Court GRANTS IN PART AND DENIES IN PART the summary
judgment motion filed by Defendants Commonfield, Marilyn Stringfellow, Carolyn Touchette, Mike
Millatti, and Erma Millard. Specifically, the Court GRANTS summary judgment as to all Defendants
on all of the claims filed by Marcus Luster and Isaac Turner as they have failed to file a Response to the
summary judgment motion and the Court thus labels their failure to reply an admission of the merits
Page 16 of 17
of the motion. The Court also GRANTS summary judgment as to Stringfellow, Touchette, Millatti,
and Millard on Defendant Traiteur, Jr.’s § 1983 claim as they are protected by the doctrine of legislative
immunity. However, the Court DENIES summary judgment as to Commonfields on Traiteur, Jr.’s
§ 1983 claim as there are still issues of fact as to whether Defendant Commonfield fired Plaintiff
Traiteur, Jr. because of his political affiliations. The Court also DENIES summary judgment as to
Commonfields on Traiteur, Jr.’s breach of contract claim under Illinois law. Thus, the only claims which
remain for trial are:
(1)
Plaintiff Traiteur, Jr.’s Count IV § 1983 claim for violations of the First Amendment
against Defendant Commonfields.
(2)
Plaintiff Traiteur, Jr.’s Count IX breach of contract claim under Illinois law.
IT IS SO ORDERED.
DATED: September 20, 2012.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge
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