In Their Opinion : Seventh Circuit Court of Appeals Commentary : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

COVELL v. MENKIS (February 8, 2010)

The Illinois Deaf and Hard of Hearing Commission (the "Commission") was created several years ago to provide services for and advocate on behalf of the hard of hearing. Gerald Covell served as its Director from 1998 until 2003. In July of that year, the Commissioners terminated him. Covell filed suit under § 1983, alleging that defendants violated both his property and liberty interests. Specifically, he alleged that he was let go without any pre-or post-termination process in violation of a property interest. He also alleges that defendants circulated false information about him, without providing him an opportunity to clear his name, in violation of his liberty interest. The district court granted summary judgment to the defendants, concluding that Covell had no property interest in this position and that he failed to demonstrate that any particular defendant circulated negative information. Covell appeals.

In their opinion, Judges Bauer, Manion and Williams affirmed. The Court first addressed the existence of a property interest. Although a property interest can arise from state law, a person must identify a specific statute, rule, or contract that limits the ability of the state to terminate him. The rules governing Covell's position states that he "shall serve at the pleasure of the Commission." The Court rejected Covell's position that an inconsistent right was somehow incorporated into the regulation by its reference to the Personnel Code. Since he had no property interest, he had no right to due process. With respect to his liberty interest claim, the Court stated that the plaintiff must show that he was stigmatized by publicly disclosed information and that he suffered a tangible loss. Specifically, the plaintiff must show that a named defendant made the public disclosure. Here, Covell contends only that the disclosure was made by someone in the government. Without evidence that the disclosure was made by a named defendant, Covell's claim fails.

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AVILA v. PAPPAS (January 4, 2010)

Maria Avila was already in trouble. Her employer, the Cook County Treasurer's Office, was about to conduct a disciplinary hearing. Avila made it worse when she told one of her coworkers that she might "go postal." Her coworker advised her superiors. They not only added a disciplinary count for the implied threat and fired her but alerted the authorities. Avila was criminally prosecuted. The prosecutor charged a felony, taking the position that one of the targets of Avila's threat was a public official. Avila was acquitted, the court holding that he was not a public official. Avila filed suit against her superiors pursuant to §1983, alleging both constitutional violations and state law malicious prosecution. Although the court dismissed the federal counts, it retained the state law claim under supplemental jurisdiction and resolved it on the merits in favor of the defendants. Avila appeals the judgment on the state law claim.

In their opinion, Chief Judge Easterbrook and Judges Wood and Tinder vacated and remanded with instructions to dismiss for want of jurisdiction. The Court first addressed its jurisdiction. Although Avila asserted four federal law theories, the Court emphasized that a federal claim must have substance to create a basis for federal jurisdiction. The Court concluded that the federal claims -- substantive due process, conspiracy, failure to train, and equal protection -- were frivolous. The Court principally relied on the Supreme Court's decision in Albright and the Court's own decision in Newsome, holding that malicious prosecution does not violate the Constitution if state law recognizes it as a tort (which Illinois does).

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MANN v. CALUMET CITY (December 7, 2009)

Calumet City passed an ordinance that requires a homeowner to conduct an inspection prior to the sale of the house to ensure its compliance with the building code. Several residents of the city brought an action challenging the constitutionality of the ordinance. The court dismissed the complaint for failure to state a claim. The residents appeal.

In their opinion, Judges Bauer, Posner and Sykes affirmed. The Court first noted that the residents challenged the ordinance as written, not relying on any particular facts regarding its application to them. The Court then reviewed the "reasonable" procedural provisions of the ordinance, concluding that the residents' challenges were frivolous.
 

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GUNVILLE v. WALKER (October 9, 2009)

Robert Gunville and Richard Oakley had both worked for the Illinois Department of Corrections for over twenty years, all during Republican administrations, when a Democratic governor was elected in 2003. Both were laid off within months of the new administration’s inauguration. Gunville was an active member of the Republican Party while Oakley had a record of voting in Republican primaries. Gunville and Oakley brought suit, alleging a violation of their First Amendment rights. They also allege a violation of their Fourteenth Amendment rights as a result of their placement on a reemployment list for only their last county of employment. The district court granted summary judgment to the defendants. Gunville and Oakley appeal.

In their opinion, Judges Manion, Rovner and Sykes affirmed. In first addressing their First Amendment claim, the Court noted that there was no dispute that their speech was constitutionally protected and that they suffered a deprivation. The issue on appeal was whether the layoff came as a result of their political affiliation. In order to establish the unlawful motivation, the plaintiffs must first establish that the defendants knew of their political affiliation. After concurring with the district court's hearsay ruling on one particular statement, the Court concluded that there was a complete absence of evidence that the persons deciding which jobs to eliminate knew of plaintiffs' political affiliations. The Court came to the same conclusion with respect to the Fourteenth Amendment claims. The due process clause does not provide an opportunity to challenge the meaning of a regulation, the relief plaintiffs sought. To the extent that plaintiffs assert political retaliation, the due process argument suffers from the same complete absence of evidence as the First Amendment claim.

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CASNA v. CITY OF LOVES PARK (July 24, 2009)

From 1996 through 2003, Mary Casna worked for the City of Loves Park in two different positions. Though she had a serious hearing impairment, it did not interfere with her performance. In her second job, Casna and one of her superiors did not enjoy a good working relationship. The City transferred her to a temporary police clerk position for six months in order to evaluate her performance in a less volatile atmosphere. Casna's hearing impairment became an issue. In one particular episode, Casna explained to her supervisor, Kay Elliot, that she had not heard her make a request. Elliot snapped: "How can you work if you cannot hear?" Casna accused Elliot of being discriminatory. Elliot consulted with her supervisor and prepared a written performance evaluation, even though Casna was only two months into the job. At the police chief's request, and based on the negative evaluation, the Mayor fired Casna. Casna brought suit against the City, the Mayor and the Police Chief. She alleged that she was fired in retaliation for her complaints of discrimination. She also alleged that the City violated Due Process by discharging her without a hearing. The district court granted summary judgment to defendants. Casna appeals.

In their opinion, Judges Manion, Rovner and Sykes reversed and remanded. On the due process claim, the Court stated that Casna must establish a property interest that is guaranteed by the Constitution but found in Illinois law. Relying on Illinois’ civil service statute, the Court concluded that her first position was exempt but that her second job was not exempt (although the resolution appointing her said it was). Although the Court agreed that a temporary position (her third job) is normally exempt, the Court also concluded that the City could not transfer Casna out of a protected job into an unprotected job and then fire her without process. The Court also rejected the City’s reliance on the requirement that a protected employee obtain her job through the civil service process. Since it was the City that wrongfully tried to make the second position exempt, the Court held that it was estopped from relying on that requirement. Casna is entitled to prove her damages, if any, arising from the lack of process. The Court also reversed the lower court on the retaliation claim. It concluded that Casna’s single statement to Elliot complaining of discrimination, though informal, was sufficient to amount to “protected activity.” Finally, although the Court cautioned that suspicious timing is rarely enough to establish a triable issue on causation, it concluded that it did here, where the police chief recommended her termination the day after the protected activity.  

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BODENSTAB v. COUNTY OF COOK (June 22, 2009)

Dr. Philip Bodenstab was an anesthesiologist at Cook County Hospital from 1993 until 2002. In February of 2002, Bodenstab, recently diagnosed with cancer, had a telephone conversation with a friend during which he threatened to kill his supervisor and co-workers. The friend contacted theFBI and Chicago police. The FBI and police contacted the director of the hospital and told him that the threats were credible. The hospital suspended Bodenstab with pay. Over the next several months, Bodenstab went through a series of assessments, evaluations and treatments. After his discharge from treatment and evaluation by the hospital's own psychiatrist, the hospital conducted a pre-disciplinary hearing on the major infraction of threatening to kill coworkers. The hearing officer concluded that the infraction warranted discharge. The hospital fired him. Bodenstab brought an action against Cook County and several individuals seeking to overturn the administrative decision and bringing affirmative allegations that his discharge violated the Americans with Disabilities Act, the First Amendment and due process. The district court granted summary judgment to the defendants. Bodenstab appeals.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Manion affirmed. The Court rejected each of Bodenstab's arguments in turn. The ADA disparate treatment claim failed because Bodenstab presented no evidence challenging the sincerity of the hospital's belief that he threatened to harm his co-workers. Even if they were mistaken, the Court held that Bodenstab could not show pretext if they reasonably believed the threats. The ADA failure to accommodate claim failed because there is no obligation to accommodate conduct -- and conduct was the reason Bodenstab was fired. The First Amendment claim failed for the same reason the ADA disparate treatment claim failed. Bodenstab was fired because he threatened to kill coworkers -- not because of his speech -- and Bodenstab introduced no evidence otherwise. The Court next rejected Bodenstab's common-law certiorari claim to review the administrative decision on the merits. That claim presents the question of whether the record contains any evidence which fairly tends to support the findings -- it does. Finally, the Court concluded that Bodenstab was afforded adequate notice and a pre-termination hearing that complied with the mandates of due process.

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RUJAWITZ v. MARTIN (April 2, 2009)

Mark Rujawitz was an at-will employee of theIllinois Department of Transportation (IDOT) for thirteen years. When he violated an injunction requiring him to keep his distance from his ex-girlfriend, IDOT fired him. A disciplinary panel reviewed the discharge and recommended a lesser level of discipline. Rujawitz was reinstated and his discipline was changed to a suspension without pay. Rujawitz brought a § 1983 action against the secretary of IDOT, alleging that he was denied his substantive due process rights. The district court dismissed the complaint on the ground that Rujawitz had no property right in continued employment. Rujawitz appeals

In their opinion, Judges Bauer, Posner and Rovner affirmed. In order to establish a due process claim, the court stated, Rujawitz had to demonstrate a constitutionally protected property interest. The Court looked to state law for that determination. The Court could locate no ordinance, law or employment agreement that changed Rujawitz's status from an at-will employee to one with an expectation of continued employment. The Court rejected Rujawitz 's position that the presence and use of the disciplinary procedures established a property interest protectable under the Fourteenth Amendment.

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CLANCY v. OFFICE OF FOREIGN ASSETS CONTROL (March 11, 2009)

Ryan Clancy, an American citizen, traveled to Iraq in January 2003. Clancy's purpose was to protest the United States’ involvement in Iraq by acting as a “human shield.” Upon his return to the United States, Clancy admitted to a customs official the reason for his trip. The Office of Foreign Assets Control ("OFAC") issued a Pre-penalty Notice ("PPN"), charging Clancy with providing services to Iraq by shielding facilities from possible military action. OFAC relied on regulations, promulgated post-September 11, restricting trade and transactions with Iraq. OFAC advised Clancy that he could be assessed a penalty of up to $250,000. It offered him the opportunity to make a written response. Clancy submitted a response in which he challenged the validity of the regulations. He did not dispute the factual basis of the charges. OFAC assessed a final civil penalty of $8,000. Clancy filed suit. The district court granted summary judgment against Clancy on all of his claims. Clancy appeals.

In their opinion, Judges Bauer, Kanne and Williams affirmed. The Court first addressed Clancy's procedural due process argument. The relevant inquiry, it said, is whether the procedures afforded presented an unreasonable risk of an erroneous deprivation of a protected interest. The Court concluded that the procedures afforded to Clancy -- the pre-penalty notice, a statement of the underlying facts, an opportunity to respond -- were constitutionally sufficient. The Court then addressed Clancy's challenge to the validity of the regulations. It rejected each of Clancy's arguments. It concluded: a) that the regulations were a proper exercise of OFAC's authority, b) that the travel restrictions were justified by national foreign-policy considerations, c) that Clancy's travel was not "inherently expressive" so as to invoke rights under the First Amendment, and d) that Clancy's actions in Iraq attempted to confer a benefit on the country and therefore met the definition of "services" as that term is used in the regulation.

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BIELANSKI v. COUNTY OF KANE (December 18, 2008)

Kane County set up a Child Advocacy Center (“Center”) to coordinate the investigation and prosecution of child sexual abuse. The Child Advocacy Advisory Board (“Board”) is responsible for drafting the policies and procedures for those investigations and prosecutions. Kathryn Berg and David Byrne were a child protection investigator and police officer, respectively, assigned to the Center. [The facts that follow, given the posture of the appeal from a motion to dismiss, are taken from the complaint.] In mid-2001, Berg and Byrne interviewed a six-year old boy and his parents. The boy claimed he had been sexually abused by “Lorri.” Berg and Byrne failed to follow accepted techniques used in child victim interviews. They did not use techniques to identify the perpetrator and did not even ask the boy to describe her. Within days, Lorri Bielanski, a fifteen-year-old neighbor of the boy, was notified that credible evidence existed that she had sexually assaulted the boy. Sometime shortly after Berg and Byrne’s interview of the boy, they learned that: a) he was taking medication for Attention Deficit Hyperactivity Disorder, b) he was in special education classes, c) he was known, on two occasions, to have undressed with others and tried to get others to undress, d) his parents confronted him about the undressing incidents and punished him, and e) his parents suggested to him that he may have been sexually abused. Berg and Byrne did not disclose this information to the prosecutors or Bielanski. The county filed a Petition for Adjudication of Wardship, alleging the commission of two sexual assault felonies. As a result, Bielanski was forced to attend court hearings and an interview with a probation officer and was not allowed to travel out of the state without court permission. Bielanski was eventually acquitted of all charges and was successful in getting her record expunged. She filed a complaint against the County, the Center, the Board, Berg, and Byrne. Based on § 1983, she alleged: a) that the defendants violated her Fourth Amendment rights by compelling her to attend the court hearings and restricting her movement, and b) that Byrne and Berg violated her rights to a fair trial and due process by withholding the information they had about the boy. The district court granted defendants’ motion to dismiss. Bielanski appeals.

In their opinion, Judges Posner, Kanne and Rovner affirmed. The Court began with Bielanski’s Fourth Amendment claim. In order to make out such a claim, the plaintiff must allege a seizure and that it was unreasonable. Since Bielanski was not seized in the normal sense of an arrest, the Court reviewed Justice Ginsburg’s “continuing seizure” concurrence in Albright and other circuits’ approaches in similar situations. In Albright, Justice Ginsburg supported a Fourth Amendment analysis whereby a defendant who was arrested, released, and then summoned back to court based on the misleading testimony of a police officer could state a claim for unlawful seizure. No other Justice has adopted the analysis. The Court concluded that a summons, even when combined with travel restrictions and a forced probation officer interview, is an insufficient restraint on freedom to constitute a seizure. The Court then addressed the fair trial claim. The elements of that claim are that: a) the evidence is favorable to the accused, b) that it was suppressed by the government, and c) that it was material. The Court noted that materiality was the only element in dispute and that the Supreme Court had not addressed a case in which evidence was withheld and the defendant was later acquitted. Several other circuits have concluded that a Brady claim cannot survive an acquittal or dismissal of charges. The Court concluded that Bielanski had no Brady claim since earlier disclosure of the evidence would not have resulted in a dismissal of the charges.

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POWERS v. RICHARDS December 2, 2008

Robert Powers was employed by the State of Illinois in 2002 as Deputy Director of the Department of Central Management Services. Powers is alleged to have been part of a scheme to help certain state employees keep their jobs. The employees had been appointed to their jobs for four-year terms. During those terms, they could not be fired but for cause. Instead of allowing their terms to expire shortly after the election of a new governor and risk being replaced, these employees voluntarily resigned before the election. They were then reappointed to new four-year terms. Powers signed the personnel forms that were necessary for the scheme to succeed. Powers did not have the authority to sign the forms and did so knowing that the Director would not. In October of 2002, Powers took a new job as Executive Secretary of the Civil Service Commission (“Commission”). The role of the Commission is to hear appeals of state employees regarding discharges and discipline, modify personnel rules, and investigate personnel violations. Powers’ role as Executive Secretary included drafting rules and regulations, making recommendations regarding resolution of disputes, and interpreting the Personnel Code, among others. When a new governor took office in January of 2003, he began an investigation into the late appointments. The governor’s office concluded that Powers was involved in the scheme and referred its findings to the Commission. The Commission suspended Powers and authorized its Chairman to conduct a hearing. The Chairman was authorized to fire Powers if he did not produce exculpatory evidence at the hearing. The Chairman notified Powers of his rights and held a hearing. The Chairman recommended that Powers be fired – and he was. Powers received a post-deprivation hearing before an ALJ. The ALJ concluded that the firing was warranted. Powers brought suit under 42 U.S.C. § 1983. He alleged that his firing was a deprivation of his right to association because it was on account of his party affiliation. He also alleged a lack of pre-deprivation procedural due process. The defendants conceded, for purposes of summary judgment, that Powers was fired because he was a Republican. The district court granted summary judgment to all defendants. Powers appeals.

In their opinion, Judges Manion, Rovner, and Evans affirmed. The Court stated that the First Amendment does not prohibit a firing based on party loyalty if that loyalty is necessary to properly perform the job. The considerations in determining that necessity include whether the position allows for meaningful input into government decision-making and involves political discretion. The Court reviewed Powers’ job description to decide whether the position was such a position. The Court recited the job’s numerous responsibilities and concluded that they did include broad discretion to make policy, interpret the law, and speak on behalf of the Commission. The position is therefore one into which an incoming administration can appoint someone of its own party. With respect to Powers’ procedural due process argument, the Court noted that when a person is afforded a full post-deprivation hearing, a pre-deprivation hearing satisfies due process if it includes notice, an explanation of the evidence, and an opportunity to be heard. Since Powers concedes that he had all that is required, he cannot prevail. Finally, the Court was not persuaded by Powers’ unsupported claim that the Commission had already decided to fire him before the hearing.

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SANDAGE v. BOARD OF COMMISSIONERS (November 24, 2008)

Sheena Sandage-Shofner twice called the sheriff’s department in Vanderburgh County and complained that a man named Moore was harassing her. Moore was in the sheriff’s custody, serving a prison term for robbery. Sandage-Shofner’s complaints arose at times when Moore was out of prison on work release. Two days after her second complaint, Moore murdered Sandage-Shofner and two other people and then took his own life. Christine Sandage and Arthur Shofner brought a suit under § 1983, claiming that the County’s failure to reimprison Moore deprived their decedents of their lives without due process in violation of the Fourteenth Amendment. The district court dismissed for failure to state a claim. Sandage and Shofner appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner affirmed. Relying principally on the Supreme Court’s decision in DeShaney, the Court held that there is no federal constitutional duty to protect the citizenry from private violence, nor is there a right to be rescued from a danger that was not created by the government. There is a right not to be harmed, a right illustrated, for example, by prisoner cases alleging deliberate indifference to medical needs. Here, the Court concluded, the government did not restrict Sandage-Shofner’s access to aid and it took no affirmative steps that increased the danger to Sandage-Shofner. It simply failed in its moral obligation to protect its citizens from private harm, for which there is no federal constitutional remedy.

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