McBride v. McLean County

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

LAURA MCBRIDE, )

)

Plaintiff, )

)

v. ) Case No. 18-1424

)

MCLEAN COUNTY, )

CARLA BARNES, McLean County )

Public Defender, sued in both individual and )

official capacities, BILL WASSON, )

County Administrator of McLean County )

sued in both individual and official capacities, )

)

Defendants. )

ORDER AND OPINION

This matter is now before the Court on a Motion to Dismiss Plaintiff’s Amended Complaint

(ECF No. 17) filed by Defendants McLean County, McLean County Public Defender Carla Barnes

(“Barnes”), and McLean County Administrator Bill Wasson (“Wasson”) (referred to collectively

as “Defendants”). For the reasons stated below, Defendants’ Motion to Dismiss Plaintiff’s

Amended Complaint is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Plaintiff, Laura McBride (“Plaintiff”), is a licensed private investigator who began her

employment with the McLean County Public Defender’s Office in January 1997 and was

eventually promoted to Criminal Defense Investigator, a position which she held from July 2005

to December 2017. (ECF No. 3 at 9). Plaintiff initially filed a Pro Se Complaint in this Court on

November 21, 2018 (ECF No. 1) claiming violations of the First Amendment as well as a state law

claim for the Illinois Whistleblowers Act against the Defendants. An Amended Complaint (ECF

No. 3) was filed on February 15, 2019. The Amended Complaint named the same Defendants as

the Pro Se Complaint and claimed: (1) a First Amendment violation under 42 U.S.C. § 1983

against Barnes and Wasson; (2) a First Amendment conspiracy under 42 U.S.C. § 1983 against

Barnes and Wasson; (3) a section 1983 Monell claim for violation of Plaintiff’s First Amendment

rights against all Defendants; and (4) a violation of the Illinois Whistleblower Act, 730 ILCS

174/20.1, against all Defendants. On May 3, 2019, Defendants filed a Motion to Dismiss Plaintiff’s

Amended Complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6) (ECF No. 17).

This Opinion follows.

This action stems from the December 31, 2017 termination of Plaintiff’s employment as a

Criminal Defense Investigator in the Public Defender’s Office through the McLean County

Board’s adoption of a new budget for the Fiscal Year 2018. Plaintiff contends that Barnes and

Wasson made the decision to terminate Plaintiff by using the pretext of budgetary concerns after

she spoke out on matters regarding the misuse of county funds, of how former Public Defender

Kim Campbell (“Campbell”) may have improperly aided the prosecution in the murder trial of

People v. David Boswell, Jr.;2010 CF 1117, and of how the current Public Defender, Defendant

Barnes, failed to report Campbell’s actions from that trial.

The pleaded facts surrounding Plaintiff’s claims began in August 2011 when Plaintiff

testified in a professional capacity in the Boswell trial. (ECF No. 3 at 12). Defendant Barnes was

lead counsel for the defendant, and former Public Defender Campbell was her supervisor. (ECF

No. 3 at 13, 15). After closing arguments, Campbell allegedly told Plaintiff that she had helped the

Assistant State Attorney handling the prosecution write her closing argument. (ECF No. 3 at 14).

The defendant was ultimately found guilty. (ECF No. 3 at 15). Plaintiff reported Campbell’s

statement to Defendant Barnes, who noted that she had suspected that Campbell was assisting the

prosecutors, but nonetheless declined to report Campbell. (ECF No. 3 at 15).

In April 2014, Plaintiff met with the Illinois Attorney General’s Office because she became

concerned that Campbell was improperly using public funds and resources (ECF No. 3 at 21).

Plaintiff was told to report the conduct to Chief Judge Elizabeth Robb (ECF No. 3 at 21). On July

22, 2014, Plaintiff met with Chief Judge Robb and revealed her insight of Campbell’s involvement

with the Boswell trial and Defendant Barnes’ knowledge of it. (ECF No. 3 at 24). Soon thereafter,

Plaintiff also reported Campbell’s conduct in the Boswell case, along with Defendant Barnes’

knowledge of it, to the Bloomington Police Department and the Illinois State Police. (ECF No. 3

at 25). On or about September 30, 2014, Defendant Wasson met with Plaintiff to discuss what she

knew of Campbell’s conduct in both her “questionable use of public funds” and her “involvement

in the Boswell case.” (ECF No. 3 at 26). In that same month, Plaintiff signed an affidavit for the

defense attorney handling Boswell’s post-conviction proceedings regarding the murder trial and

included in that affidavit that she reported the incident to Defendant Barnes. (ECF No. 3 at 28).

On or about March 2016, The Pantagraph, a daily newspaper that serves the Bloomington-Normal,

Illinois area, ran a story about the alleged misconduct in the Boswell trial and detailed the affidavit

Plaintiff signed. (ECF No. 3 at 34). Defendant Barnes spoke to Plaintiff after the story was

published and allegedly expressed concern that it might negatively impact her political future.

(ECF No. 3 at 34). After that conversation, Plaintiff contends she began experiencing adverse

employment actions including: 1) Defendant Barnes stopped speaking to Plaintiff both in and out

of the office; 2) Defendant Barnes stopped inviting Plaintiff to attend meetings and seminars that

she previously would have attended as part of her employment duties; 3) Defendant Barnes

changed Plaintiff’s job duties and informed her she would no longer conduct investigations in the

field or serve subpoenas; 4) Defendant Barnes began taking away Plaintiff’s cases and reassigning

them, and 5) after taking away cases from Plaintiff, Defendant Barnes then informed other

employees in the office that Plaintiff’s numbers were low. (ECF No. 3 at 35). Plaintiff began to

worry that her job was in jeopardy. (ECF No. 3 at 36). Plaintiff also signed a second affidavit dated

August 31, 2017 regarding the murder trial, and shortly thereafter, Defendant Barnes allegedly

told Plaintiff that she was unhappy Plaintiff was spending so much time assisting Boswell’s new

criminal defense lawyer. (ECF No. 3 at 30, 31).

In September 2017, Defendant Wasson began to express concerns over the budget for the

Fiscal Year 2018 due to the recent passing of the budget by the Illinois General Assembly and the

State of Illinois. (ECF No. 17 at 2-3; 17-1 at 1-2). As a result, Defendant Wasson and the McLean

County Board members explored methods to scale down expenses, including reductions in the

workforce. (ECF No. 17-1 at 1-6). Defendant Wasson was directed by the Board to work with

department heads across the county to evaluate staffing levels. (ECF No. 17 at 2; 17-1 at 1-2).

While evaluating full-time staffing levels at the Public Defender’s Office, Defendant Barnes

recommended to Defendant Wasson that Plaintiff’s position be included in the workforce

reduction. (ECF No. 17 at 2). On November 21, 2017, the Board adopted the budget for the Fiscal

Year 2018, which eliminated several positions, including Plaintiff’s position. (ECF No. 3 at 40).

Plaintiff claims that thereafter another individual with less experience was offered a contract

investigator position. (ECF No. 3 at 42).

STANDARD OF REVIEW

Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper if a complaint fails to

state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). To survive a motion to

dismiss, a complaint must contain sufficient factual matter, which when accepted as true, states a

claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility

means alleging factual content that allows a court to reasonably infer that the defendant is liable

for the alleged misconduct. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plaintiff’s

claim must “give enough details about the subject matter of the case to present a story that holds

together” to be plausible. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). A court

must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat’l Bank of

Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

When evaluating a motion to dismiss, courts must accept as true all factual allegations in

the complaint. Ashcroft, 556 U.S. at 678. However, the court need not accept as true the

complaint’s legal conclusions; “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id. (citing Bell Atlantic Corp., 550 U.S. at 555).

Conclusory allegations are “not entitled to be assumed true.” Id.

Moreover, in ruling on a motion to dismiss pursuant to Rule 12(b)(6), a court may not

consider extrinsic evidence. See FED. R. CIV. P. 12(b)(6). If a court considers matters outside of

the pleadings, “the motion must be treated as one for summary judgment.” FED. R. CIV. P. 12

(12)(d). However, a court may “take judicial notice of matters of public record,” United States v.

Wood, 925 F.2d 1580, 1582 (7th Cir. 1991), and it may do so without converting a motion to

dismiss into one for summary judgment. Ennenga v. Starns, 677 F.3d 766, 774 (7th Cir. 2012);

Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997); Henson

v. CSC Credit Servs. 29 F.3d 280, 284 (7th Cir. 1994). This exception has allowed courts to avoid

unnecessary proceedings when an undisputed fact in the public record establishes that the plaintiff

cannot satisfy the 12(b)(6) standard. Gen. Elec. Capital Corp. 128 F.3d at 1081. Here, Defendants

have introduced minutes and agendas from the McLean County Board meetings, ordinances from

the McLean County Code, and the McClean County budget worksheets for Fiscal Year 2018, as

an Exhibit (ECF No. 17-1) to their Motion to Dismiss. Given these are documents that are part of

public record, the Court will take judicial notice and consider them without converting the present

motion to a motion for summary judgment.

ANALYSIS

I. Legislative Immunity

a. Count I – First Amendment Violation Under 42 U.S.C. § 1983

In Count I of Plaintiff’s Amended Complaint, Plaintiff claims that Defendants Barnes and

Wasson violated her First Amendment rights under 42 U.S.C. § 1983 by retaliating against her for

exercising her “First Amendment right to speak out on matters of public concern when she raised

issues of misuse of county funds, of how the former Public Defender Kim Campbell may have

improperly aided the prosecution in the Boswell trial, and of how the current Public Defender

Defendant Barnes failed to report Campbell’s actions.” (ECF No. 3 at 45). Plaintiff alleges that as

a result of speaking out on those matters, Defendants Barnes and Wasson terminated Plaintiff’s

employment as an investigator in the Public Defender’s Office and guised it as a budget cut.

In arguing that this Court should dismiss Count I of Plaintiff’s Amended Complaint,

Defendants Barnes and Wasson claim that they are entitled to absolute legislative immunity.

Legislative immunity is confined to legislative conduct within the traditional sphere of legislative

activity. See Supreme Court of Virginia v. Consumers Union of U. S., Inc., 446 U.S. 719, 731

(1980). Accordingly, in order to effectively claim absolute legislative immunity, this Court must

look at whether the actions undertaken by Barnes and Wasson qualify as legitimate legislative

activity and whether they were acting in their legislative capacity as government officials as

opposed to enacting administrative or executive acts. See Rateree v. Rockett, 852 F.2d 946, 949

(7th Cir. 1988).

Determining whether an action is legislative depends “on the nature of the act, rather than

on the motive or intent of the official performing it.” Bagley v. Blagojevich, 646 F.3d 378, 391

(7th Cir. 2011). While the Seventh Circuit has generally agreed that employment decisions are

ordinarily administrative, “employment decisions are not administrative when accomplished

through traditional legislative functions.” Rateree, 852 F.2d at 950. Specifically, in Rateree, the

Seventh Circuit held that a budgetary decision to eliminate a position was a legislative action as it

eliminated the employee’s position and another person was not hired to replace the employee. Id.

Similarly, in Benedix v. Village of Hanover 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. Benedix, 677 F.3d at 318.

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.” Id.

In Bagley, the Seventh Circuit went further by examining if the termination of a position

through a legislative act was, in actuality, a targeted attack on a certain individual as opposed to a

prospective reorganization. See Bagley, 646 F.3d at 393. The court considered many cases that

“support[ed] the distinction between the firing of an employee,” which is administrative, “and the

elimination of a position,” which is legislative. Id.; see Bogan v. Scott-Harris, 523 U.S. 44, 56

(1998) (noting that the ordinance “involved the termination of a position, which, unlike the hiring

or firing of a particular employee, may have prospective implications that reach well beyond the

particular occupant of the office”); Canary v. Osborn, 211 F.3d 324, 330–31 (6th Cir. 2000)

(school board members terminated assistant principal after he publicly commented on a suspected

cheating scheme involving student achievement tests). While the terminated employees in the

Bagley case alleged that a nearly identical position was created, the court held that the governor

defendant’s actions were substantively legislative because “this was not a one-for-one replacement

of disfavored employees with more favored individuals to do the same work. Some responsibilities

overlapped and … performed duties [that were] similar … but not to a degree that the

reorganization was not prospective.” Bagley, 646 F.3d at 395.

Here, the Court has determined that the facts alleged in the Amended Complaint reflect

that the contract investigator’s position was not a “one-for-one replacement” and that the

termination of Plaintiff’s employment was a legitimate legislative activity. Bagley, 646 F.3d at

395; Weiler v. Vill. of Oak Lawn, 86 F. Supp. 3d 874, 883 (N.D. Ill. 2015) (court held that village

manager was entitled to legislative immunity on a § 1983 claim where an employee’s job was

terminated by the passage of an ordinance and a contract employee took over because the act

represented a “structural reorganization with prospective implications” as the village manager

anticipated the use of the contract employee would save the village money).

Similar to Weiler, the elimination of Plaintiff’s position and its replacement with a

contracted position represents a structural reorganization. Defendant Wasson and the members of

the McLean County Board contemplated the reduction of McLean County’s workforce in order to

address budgetary concerns. A review of the Board minutes from September 11, 2017, along with

the ordinances from September 19, 2017, reflects that the Board was experiencing budget

challenges, and as a result, cutbacks in the workforce were necessary. (ECF No. 17-1 at 1-2). These

contemplations included the “elimination of merit and across the board to try to balance the

budget” and a “reduction in the force.” (ECF No. 17-1 at 2). Accordingly, the Board agreed that

department heads would work with Defendant Wasson to find savings in their respective

departments, which could include the termination of certain employees. (ECF No. 17-1 at 2, 24).

The meeting minutes clearly demonstrate that the reductions applied to a broad group of employees

across several departments in McLean County rather than a targeted attack on a certain individual

such as Plaintiff. See Benedix, 677 F.3d at 318; see also Bagley, 646 F.3d at 395–96. Moreover,

the new contract investigator was also not identical to Plaintiff as this individual had less

experience and was not a full-time staffer as Plaintiff was. See generally Weiler, 86 F. Supp. 3d at

883.

Overall, like in Benedix and Rateree, Defendant Wasson’s actions to address the budgetary

concerns, which included a reduction in the workforce, led to a decision enforced by the McLean

County Board that amounted to legislative action and had the force of law. Accordingly, the

removal of Plaintiff’s position was a legislative action rather than an administrative one, and

Defendant Wasson is entitled to legislative immunity.

However, as to Defendant Barnes, the doctrine of legislative immunity does not apply.

Only particular state officials have been held to be protected by legislative immunity and while

the Seventh Circuit has stated that an official does not have to be a “legislator” to be shielded by

legislative immunity, they do need to engage within the sphere of a legitimate legislative activity.

See Weiler 86 F. Supp. at 881. According to the facts alleged, Defendant Barnes was not a

participant in the legislative activity. Unlike Defendant Wasson, Barnes was absent from the Board

meetings that discussed the budgetary concerns and did not recommend or introduce the new

budget. Both parties concede that Plaintiff’s position was eliminated following a public discussion

of the McLean County Board regarding budgetary concerns and the vote adopting the budget –

neither activity to which Defendant Barnes partook. Although Defendant Wasson also did not vote,

he was involved in the budgetary process.

Moreover, this Court agrees with Plaintiff that none of the actions Defendant Barnes

undertook were legislative in nature and accordingly she is not afforded legislative immunity.

Here, Plaintiff has plausibly alleged a prima facie case for First Amendment retaliation as to

Defendant Barnes in her Amended Complaint.

Generally, First Amendment protection of lawsuits by public officials is limited to lawsuits

in which the official “is speaking ‘as a citizen on a matter of public concern.’” Hagan v. Quinn,

84 F.Supp.3d 826, 830 (C.D.Ill. 2015). Additionally, a plaintiff must allege that: (1) she engaged

in activity protected by the First Amendment; (2) she suffered a deprivation that would likely deter

First Amendment activity in the future; and (3) the protected activity or speech was at least a

motivating factor for the deprivation. See Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008).

In the case at bar, Defendants do not argue that Plaintiff was not speaking as a citizen. Plaintiff

clearly was acting as a citizen and not pursuant to her official Criminal Defense Investigator duties

when she reported her concerns. Furthermore, Plaintiff’s allegations support a finding that the

matters she was speaking out on were of a public concern; they were reported to the Attorney

General’s office, Chief Judge Robb, and the local police, and The Pantagraph published a story

about it. “The public concern element is satisfied if the speech can fairly be said to relate to a

matter of political, social, or other concern to the community, rather than merely a personal

grievance.” Hagan, 84 F.Supp. at 830. Plaintiff also plausibly alleges that she suffered a

deprivation that was likely to deter First Amendment speech. After Plaintiff spoke out, Defendant

Barnes changed Plaintiff’s job duties, informed her she would no longer conduct investigations in

the field or serve subpoenas, began taking away Plaintiff’s cases and reassigning them, and after

taking away cases from Plaintiff, Defendant Barnes informed other employees in the office that

Plaintiff’s numbers were low. Plaintiff stated she began to fear her job was in jeopardy. The First

Amendment does not provide citizens the right to be employed; however, if employees are not

likely to exercise their First Amendment right to speak because they think they will be terminated

in retaliation for speaking, then protected speech of the employees is “likely deter[red].” Woodruff,

542 F.3d at 551. Lastly, Plaintiff plausibly alleged a causal link between her protected speech and

the retaliatory deprivation. In the Amended Complaint, Plaintiff pled that after The Pantagraph

published the story about the alleged misconduct in the Boswell trial, Defendant Barnes spoke to

Plaintiff about the matter and was concerned it would negatively impact her political future. It was

after this meeting that Plaintiff claims she experienced the adverse employment actions by

Defendant Barnes. Therefore, Plaintiff has sufficiently pled a causal link sufficient to survive a

motion to dismiss.

Accordingly, this Court dismisses Count I against Defendant Wasson and declines to

dismiss Count I against Defendant Barnes.

b. Count II – First Amendment Conspiracy Under 42 U.S.C. § 1983

Plaintiff also claims that Defendants Barnes and Wasson acted in concert to violate her

First Amendment rights under 42 U.S.C. § 1983. To state a conspiracy claim under § 1983, a

plaintiff must show “(1) an express or implied agreement among defendants to deprive plaintiff of

his or her constitutional rights and (2) actual deprivations of those rights in the form of overt acts

in furtherance of the agreement.” Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988), cert.

denied, 486 U.S. 1043 (1988).

Plaintiff fails to support a claim for conspiracy. Plaintiff contends that Defendants Barnes

and Wasson violated her First Amendment rights by “removing duties from Plaintiff and

reassigning cases, formulating the pretext of a budgetary cause for Plaintiff’s termination, and

terminating her employment…” (ECF No. 3 at 60). However, according to the repeated

allegations, it was only Defendant Barnes who removed duties from Plaintiff and reassigned cases.

As pled, Plaintiff does not meet the elements to show that Barnes and Wasson had an agreement,

express or implied, with each other to specifically terminate Plaintiff because she was speaking

out on matters of public concern. Moreover, as discussed at length above, Defendant Wasson is

afforded legislative immunity because his actions that led to the termination of Plaintiff’s position

were part of a legitimate legislative activity.

Thus, Plaintiff has no claim of First Amendment conspiracy under 42 U.S.C. § 1983 against

Defendants Barnes and Wasson, and Count II of Plaintiff’s Amended Complaint is dismissed.

II. Monell Liability

In Count III, Plaintiff alleges a Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.

658 (1978) claim against all Defendants. In her Amended Complaint, Plaintiff states that

Defendants Barnes and Wasson were the “final decision makers for the Defendant County” and

that Defendants Barnes and Wasson’s actions reflected “a policy, custom or pattern of official

conduct of engaging in and condoning retaliation against individuals who engage in protected

speech.” (ECF No. 3 at 77, 78). However, in Plaintiff’s response to Defendants’ Motion to Dismiss,

she states that she is not alleging Monell liability based upon a “policy, custom, or practice.” (ECF

No. 20 at 9). Therefore, this Court will assume that Plaintiff intends to proceed with her Monell

claim based solely under the theory that Defendants Barnes and Wasson were “final decision

makers.”

To prevail on a claim under Monell, a plaintiff must show that a municipal employee’s

unconstitutional act was caused by: “(1) an express [municipal] policy that, when enforced, causes

a constitutional deprivation; (2) a widespread practice that, although not authorized by written law

or express municipal policy, is so permanent and well settled as to constitute a custom or usage

with the force of law; or (3) an allegation that the constitutional injury was caused by a person

with final policymaking authority.” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)

(citation omitted); see also Thomas v. Cook Cnty. Sheriff's Dep’t, 604 F.3d 293, 303 (7th Cir.

2010). Here, Plaintiff is alleging that the third branch of a Monell claim related to final

policymaking authority applies.

An allegation that an individual defendant is “the decisionmaker on hiring/firing

decisions…does not necessarily make him the policymaker on those issues.” Id. Rather, “to have

final policymaking authority, an official must possess ‘[r]esponsibility for making law or setting

policy,’ that is, ‘authority to adopt rules for the conduct of government.’” Rasche v. Vill. of

Beecher, 336 F.3d 588, 599 (7th Cir. 2003) (quoting Auriemma v. Rice, 957 F.2d 397, 400-01 (7th

Cir. 1992)). To determine whether an individual is a final policymaker, courts review “the relevant

legal materials, including state and local positive law, as well as ‘custom or usage having the force

of law.’” Killinger v. Johnson, 389 F.3d 765,772 (7th Cir. 2004) (quoting Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 737 (1989)).

Where a plaintiff brings a Monell claim against a municipality based upon the specific

conduct of a municipality employee, the plaintiff cannot prevail on that Monell claim without first

showing that the employee violated the plaintiff’s constitutional rights. Petty v. City of Chicago,

754 F.3d 416, 424–25 (7th Cir. 2014). Since Plaintiff fails to allege a First Amendment claim

against Defendant Wasson, she also fails to state a corollary Monell claim against him.

Additionally, as alleged, Defendant Barnes is not responsible for making law or setting

policy that has the effect of adopting rules. Specifically, she did not set the policy related to the

reduction in the workforce that formed part of the budget for the Fiscal Year 2018, nor did she

take part in the ordinance that amended section 84 of Chapter 108 of the McLean County Code

titled “Reduction In Work Force.” While Defendant Barnes may be responsible for hiring and

firing employees, that does not make her the final policymaker on those issues.

“It is well-established that when a particular course of action is directed by those who set

municipal policy, the municipality is responsible under section 1983, even if the action in question

is undertaken only once.” Valentino v. Village of S. Chicago Heights, 575 F.3d 664, 675 (7th Cir.

2009). While the First Amendment retaliatory allegations against Defendant Barnes have been

sufficiently pled, they do not bring Defendant McLean County within reach. See Auriemma v.

Rice, 957 F.2d 397, 400 (7th Cir. 1992) (“[l]iability for unauthorized acts is personal; to hold the

municipality liable, Monell tells us, the agent’s action must implement rather than frustrate the

government’s policy.”)

Thus, this Court dismisses Count III against all of the Defendants.

III. The Tort Immunity Act

Finally, in Count IV, Plaintiff alleges that the Defendants are in violation of the Illinois

Whistleblower Act (“Whistleblower Act”) by terminating her position in retaliation for disclosing

the wrongdoing she believed was occurring in the McLean County Public Defender’s Office. In

response, the Defendants contend that Plaintiff’s Whistleblower Act claim is barred by several

provisions of the Illinois Local Governmental and Governmental Employees Tort Immunity Act

(“Tort Immunity Act”), which immunizes municipalities and its employees from liability for the

performance of acts that are discretionary and involve policy determinations.

The Tort Immunity Act states in pertinent part:

Except as otherwise provided by statute, a public employee serving in a position

involving the determination of policy or the exercise of discretion is not liable for

an injury resulting from his act or omission in determining policy when acting in

the exercise of such discretion even though abused.

745 ILCS 10/2-201; see also 745 ILCS 10/2-205. Illinois courts have determined that this

provision, when analyzed in conjunction with immunity for government entities under 745 ILCS

10/2–109, also immunizes municipalities for officials’ discretionary policy decisions. Murray v.

Chi. Youth Ctr., 864 N.E.2d 176, 186 (2007) (“[S]ection [2–201], together with section 2–109 (745

ILCS 10/2–109) (‘a local public entity is not liable for an injury resulting from an act or omission

of its employee where the employee is not liable’)), provides both public employees and the public

employer with immunity against allegations that challenge discretionary policy determinations.”).

Additionally, “an employee may be granted immunity if he holds either a position involving the

determination of policy or a position involving the exercise of discretion.” Harinek v. 161 N. Clark

St. Ltd. P’ship, 692 N.E.2d 1177, 1181 (1981) (emphasis added). However, “immunity will not

attach unless the plaintiff’s injury results from an act performed or omitted by the employee in

determining policy and in exercising discretion.” Id. To determine whether the Tort Immunity Act

applies in this case, the Court must examine whether Plaintiff has pled that the Defendants

discharged her in a manner involving a determination of policy and an exercise of discretion. Id.

Policy determinations are those acts that require the balancing of competing interests to make a

judgment as to what solution will best serve those interests. Id.

In the case at bar, Defendant Wasson was required to make decisions to address the new

issues that arose following the passage of a recent budget by the Illinois General Assembly and

the State of Illinois. To address those budgetary concerns, Defendant Wasson presented several

ideas at the McLean County Board meeting including voluntary retirement incentives, the

elimination of merit, and reductions in the workforce to try to balance the budget. (ECF No. 17-1

at 1-6). In effect, these were policy determinations.

Moreover, discretionary acts are unique to a particular public office and involve the

exercise of judgment. Corning v. East Oakland Tp., 670 N.E.2d 350, 352 (1996). In particular,

decisions of hiring and firing are discretionary acts barred under Section 2–201 of the Tort

Immunity Act. See Johnson v. Mers, 664 N.E.2d 668, 675 (1996) (defining discretionary acts as

those “not performed on a given state of facts in a prescribed manner,” and in particular describing

hiring as a discretionary act). Likewise, the decision to fire someone involves balancing a set of

given circumstances to arrive at an appropriate outcome; the outcome is not predetermined but left

in the hands of an official to use proper judgment. See Zinnermon v. City of Chicago Dept. of

Police, 209 F.Supp.2d 908, 911 (N.D.Ill. 2002).

Here, Defendant Wasson had to balance the decision of reducing the workforce against the

imminent budgetary issues. The policy determinations made by Defendant Wasson were left in the

hands of the McLean County Board members to finalize the budget that was voted on and adopted

on November 21, 2017. Accordingly, the act of suggesting a reduction in the workforce, which

ultimately led to an adoption of the budget for Fiscal Year 2018 that eliminated Plaintiff’s position,

was a discretionary decision. Therefore, Defendant Wasson is immune. Because employee actions

are immune from suit for such discretionary policy decisions, a local public entity is also immune

from suit under the Tort Immunity Act where the tort in question flows from the employee. 745

ILCS 10/2–109. As such, Defendant McLean County is also immune.

However, accepting Plaintiff’s allegations as true, Defendant Barnes was not balancing

competing interests when she allegedly retaliated against Plaintiff for speaking out on matters of

public concern by limiting Plaintiff’s job duties and conveniently recommending to Defendant

Wasson that Plaintiff’s position be included in the workforce reduction shortly after she discovered

Plaintiff provided a second affidavit in Boswell’s post-conviction hearings. (ECF No. 3 at 30, 35,

85; ECF No. 17 at 12). The provision of the Whistleblower Act alleged by Plaintiff prohibits

employers from retaliating against an employee “because of the employee disclosing or attempting

to disclose public corruption or wrongdoing.” 740 ILCS 174/20.1. In this case, Plaintiff disclosed

information she allegedly believed to be illegal to the Attorney General’s office, Chief Judge Robb,

and the local police. The Seventh Circuit has held that an employer who fired an employee after

she exposed corrupt practices was not immune from retaliatory discharge under the Tort Immunity

Act, because the employer failed to establish that he had made a policy decision. See generally

Valentino, 575 F.3d. at 679. Here, Defendant Barnes has failed to establish the she made a policy

decision that resulted in a discretionary determination to eliminate Plaintiff’s position.

Accordingly, this Court dismisses Count IV against Defendants Wasson and McLean

County and declines to dismiss Count IV against Defendant Barnes.

CONCLUSION

For the reasons stated above, Defendants’ Motion to Dismiss [17] is GRANTED IN PART

and DENIED IN PART. Plaintiff may proceed on Counts I and IV against Defendant Barnes only.

Counts I, II, III and IV against Defendant Wasson, and Counts III and IV against Defendant

McLean County are dismissed without prejudice. Defendants Wasson and McLean County are

DISMISSED from this case.

ENTERED this 24th day of June, 2019.

/s/ Michael M. Mihm

Michael M. Mihm

United States District Judge