Opinion

Klaus v. County of Macoupin

Court
District Court, C.D. Illinois
Filed
Feb 6, 2020
Cited by
0 cases
Authority
More cited than 20.6%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

ROBERT KLAUS, )

)

Plaintiff, )

)

v. ) Case No. 17-3280

)

SHAWN KAHL, Sheriff of Macoupin )

County and MACOUPIN COUNTY, )

ILLINOIS, )

)

Defendants. )

OPINION

RICHARD MILLS, United States District Judge:

This is an action wherein Plaintiff Robert Klaus asserts a claim for wrongful

termination under 42 U.S.C. § 1983.

Plaintiff’s complaint also contains a state law wage claim under the Illinois

Labor Act.

Pending is the motion for summary judgment of Defendants Shawn Kahl,

Sheriff of Macoupin County, and Macoupin County, Illinois.

For the reasons that follow, that motion is allowed.

I. BACKGROUND

Introduction

Plaintiff Robert Klaus was hired by the Macoupin County Sheriff’s Office as

a corrections officer in October 1989. Shawn Kahl currently serves as the elected

Sheriff of Macoupin County. Sheriff Kahl started working in the Sheriff’s Office in

2000 as a deputy, became a detective in September 2006, was a sergeant in road

patrol and ran for sheriff in 2014.

Evan Ibberson is currently a Lieutenant Colonel in the Sheriff’s Office and

serves as the Jail Administrator.

First Amendment claim

Robert Klaus had originally worked as a corrections officer under Sheriffs

Herbert Hoover, Jim Zirkelbach, Gary Wheeler and Don Albrecht. Under Sheriff

Albrecht, there was a Jail Superintendent. Eleven corrections officers reported

directly to the Jail Superintendent. Sheriff Albrecht served for nine years until the

end of November 2014 when Sheriff Kahl was elected.

When Kahl announced he would run against Sheriff Albrecht, Albrecht

retaliated by demoting Kahl from detective, took his squad car, took his phone and

changed his work shift. Prior to the election, Kahl knew Klaus and had a civil

working relationship with him but did not see him very often. Kahl lives within two

blocks of Klaus. Kahl was aware that Klaus supported his opponent in the 2014

election. In March 2014, then-Sergeant Kahl defeated incumbent Sheriff Albrecht

in the Democratic primary.

Immediately after his primary defeat, in April 2014, Sheriff Albrecht went

from having no corrections sergeants to promoting 4 of the 11 corrections officers,

including Klaus, to sergeant and giving them substantial salary increases. The

positions were posted after the primary. Klaus applied by submitting a handwritten

resume. There was no written exam or oral interview. Klaus opines that over the

years, all past instances of promotions were politically motivated. Klaus

acknowledged that his promotion could have been politically motivated.

Klaus was approached by a co-worker in December 2014 asking that he sign

a letter stating that he had no confidence in Sheriff Albrecht and Klaus refused. It

was the union that was trying to get rid of Albrecht. The Defendants state there is

no evidence that Sheriff Kahl was aware of Klaus’s refusal or that Kahl was involved

in any efforts by the union to get rid of then-Sheriff Albrecht.

Following the primary election, Kahl (who was then a Sergeant in the

Sheriff’s Office) allegedly stated to Klaus that there was no need for sergeants to be

promoted in the jail and Klaus disagreed. Sheriff Kahl recalls speaking with Klaus

about the topic but denies ever saying that Klaus did not deserve being named a

sergeant. Kahl was sworn in as Sheriff on December 1, 2014. After Sheriff Kahl

took office, he did not demote Klaus or decrease his pay.

On December 2, 2014, Sheriff Kahl and Chief Deputy Quinn Reiher met with

Klaus after learning from other employees that Klaus allegedly told them that he had

25 years in and just wanted to skate by and do his time. Klaus claims that during the

meeting, Sheriff Kahl stated he heard that Klaus was going to sabotage him and that

he was not going to work with the new sheriff. Klaus denied making those

statements but said there was animosity against some of the guards in the corrections

department who had not supported Sheriff Kahl in the election. Sheriff Kahl recalls

telling Klaus, “This is your job, you need to do your job,” but it was by no means

any kind of reprimand.

During his deposition, Klaus testified that at one point in the December 2,

2014 meeting, Sheriff Kahl allegedly told him that if he did not comply with the

rules, Kahl would terminate Klaus. At another point of the deposition, Klaus denied

that Sheriff Kahl ever threatened to terminate him. After December 2, 2014, Sheriff

Kahl did not ever threaten to terminate Klaus. Sheriff Kahl would come into the jail

perhaps once or twice a month.

From the date that Sheriff Kahl took over in December 2014 through his

retirement, Klaus never lost any income. Klaus was never suspended during his

employment. Sheriff Kahl never terminated Klaus.

Sex offender registration and taking bond money

During the December 2, 2014 meeting, Sheriff Kahl told Klaus that he and

Sergeant Dave Chiarodo were now going to register all sex offenders. Sheriff Kahl

testified that when he was a detective, he did 95% of the sex offender registrations.

When he became sheriff, Kahl believed that the best way to handle this was to have

someone who is always at the Sheriff’s Office register sex offenders. Klaus and

Chiardo were tasked to handle sex offender registration because registration is

normally done in the morning and they were the only two daytime sergeants.

On July 20, 2015, Lt. Col. Evan Ibberson, who was the Macoupin County Jail

Administrator, sent a memo to all corrections personnel concerning procedures for

completing a Sex Offender Registration form. Sheriff Kahl sent Klaus to a sex

offender class in Jerseyville. Klaus registered sex offenders very infrequently, less

than five total, and it would take him 30-45 minutes to complete this task. Lt. Col

Ibberson helped Klaus register sex offenders when he could. Klaus never had to

work overtime because he was registering a sex offender. Klaus had to register sex

offenders for four or five months before Sheriff Kahl changed the procedure, after

which he no longer had to do it.

On February 11, 2015, Lt. Col. Ibberson issued a memo to dispatch and

corrections which changed who was to take bond money. Klaus claims he was

written up by Ibberson. The Defendants dispute he was written up on this issue.

Previously dispatchers, deputies and courthouse employees took bond money. After

February 11, 2015, corrections officers instead of dispatchers took bond money.

Deputies and courthouse employees continued to take bond money as well. In

addition to Klaus, ten other employees now had to take bond money and were

affected by this change. Klaus could not say how much extra time he might have

spent taking bond money. Klaus felt that taking bond money was another duty he

had to do that added to the time spent performing his other daily duties, such as court

visitation, mail log-in and mail log-out.

Kahl has no knowledge of any disciplinary actions taken against Klaus before

he became sheriff. Kahl has never reviewed Klaus’s personnel file. No disciplinary

action more than six months old can be used.

Written reprimand or other corrective action

On June 12, 2015, Klaus failed to put $9.91 in inmate cash into a trust account.

He was written up for this. Klaus did not consider this to be a disciplinary issue.

On July 6, 2015, Klaus forgot to take a report over to the State’s Attorney’s Office.

This did not result in a reprimand.

On July 21, 2015, Lt. Col. Ibberson gave Klaus a written reprimand after he

booked a female with warrants out of Macoupin and Montgomery County but only

collected bond money for the Macoupin County warrant and released her while there

was still an active warrant out of Montgomery County. Lt. Col. Ibberson testified

Klaus was reprimanded because an officer taking bond money must doublecheck

outstanding warrants. Normally, the warrant copy and the LEADS report from the

state will show both warrants and, given that Klaus had worked there for a long time,

he should have known to check. Klaus disagreed with the reprimand because he was

never given information on the Montgomery County warrant. Klaus did not lose

any money from the reprimand. He believed that the written reprimand had a

negative impact on his career because the reprimand was placed in his personnel file.

The Defendants dispute that the written reprimand was negative to an extent that it

would dissuade Klaus from politically supporting other candidates. Prior to this

incident, moreover, Klaus had numerous write ups over the years in his personnel

file and he was still promoted from corrections officer to sergeant.

Klaus alleges it was for dispatch to run the arrestees’ information on LEADS

and give this information to the jailor. Klaus alleges that, in the write-up over the

release of a subject with the active county warrant, it was only after the arrestee was

released that dispatch checked LEADS and informed Klaus there was a second

warrant. The Defendants dispute this assertion and claim that, according to Lt. Col

Ibberson, Klaus normally would be provided with both paperwork on the warrant as

well as the LEADS printout which would have shown both warrants and it was

Klaus’s responsibility to double check information he may have been given by

dispatchers.

A reprimand does not result in immediate termination unless it is for

insubordination, which does result in termination. Pursuant to the union contract,

progressive discipline started with a verbal reprimand, then a written reprimand, a

second written reprimand, a third written reprimand and then further action past

three write ups. Any corrective action is rolled off per the union contract once it is

six months old.

On September 21, 2015, Klaus was given a written reprimand for releasing

two people without photographing them. The need for them to be photographed

again is because they could change their appearance. The reprimand warned that a

recurrent problem may lead to suspension and/or dismissal. Klaus admitted he

agreed with the reason for the written reprimand.

Alleged verbal abuse

In early 2015, Klaus was working in the morning when inmates were trying

to escape and had tried to pound a hole in the ceiling of the shower area. Sheriff

Kahl allegedly blamed Klaus’s shift about it because they did not know or do

anything about it. At the time he learned of this incident, Sheriff Kahl allegedly told

Klaus he was a do-nothing guard and he ought to retire and go home and do nothing.

Sheriff Kahl denies making this statement. Kahl threatened Klaus with termination

over claimed statements Klaus never made. The Defendants dispute this statement.

Former Corrections Officer Robert Eskew, who did not support any candidate in the

elections, testified that Sheriff Kahl yelled at him about the incident as well.

On one occasion, Lt. Col. Ibberson allegedly told Klaus “it’s a long road, and

it’s going to be a tough haul.” Ibberson testified it was possible he said that it was

going to be a long road if they don’t see eye-to-eye a little bit better because there

was a perception that he was best friends with the Sheriff when he was not. Klaus

was told by another employee, or may have heard firsthand, that Lt. Col. Ibberson

allegedly stated that the sergeants were going to earn their pay. Klaus was offended

by that statement. On one occasion, Lt. Col. Ibberson allegedly stated to Klaus it

was not right that union members got a big raise under the union contract and

Ibberson did not get one.

Unpaid wage claim

Klaus alleges he was required to work off the clock without pay, including

having to appear for work one half hour before a shift began. The Macoupin County

Sheriff’s Department Policy Manual under Sheriff Wheeler, effective in May 2000,

contained a provision, Section 6.034, Reporting for Duty. Members shall be

punctual in reporting for duty at the time and place designated by their supervisors.

Relieving personnel shall report for duty thirty (30) minutes prior to their assigned

shifts for purposes of review. Failure to report on time for duty, without prior

notification to a supervisor, or without due cause, will be grounds for disciplinary

action and shall be deemed neglect of duty.”

While the Policy Manual was not updated during Klaus’s employment,

Section 6.034 has never been enforced by the Sheriff’s Office and Lt. Col. Ibberson

has never told any employee that they had to come in early for any reason and those

employees who did come in early would also leave early. Klaus claims that this

policy of corrections officers coming into work 30 minutes before the start of the

shift started long before May 2000. Not all of the corrections officers would come

to work 30 minutes early. Klaus never submitted a claim for overtime under Sheriff

Kahl that was denied.

There were never timecards or a timeclock to punch. If Klaus worked

overtime, he completed a time sheet.

Klaus claims that throughout his entire employment, he never got a 30-minute

lunch because he was required to perform a cell check every 30 minutes that took an

average of 8 to 10 minutes. He was never entitled to paid lunch hours or breaks

under his union contract. In February 2000, Klaus was a union steward and was part

of a meeting with a prior sheriff discussing what union membership wanted in

contract negotiations and Klaus requested that the Sheriff’s Office pay employees

for the lunch hour and breaks. Klaus ate and took breaks when he had time but

claims that he never got 30 minutes.

Klaus would take smoke breaks that could have been ten minutes long at least

every hour. He was told to fill out paperwork if he worked more than 8 hours a day

so that he would be paid for his time. Klaus filled out the form every time he worked

an extra shift or an extra hour. In August 2015, Klaus submitted a monthly time

sheet accurately identifying the overtime he earned and requesting pay for 41 hours

of overtime and he was paid for that time. Klaus never filled out an overtime slip

under Sheriff Kahl that was denied. Klaus reviewed his time sheets for September

and October 2015 listing comp time he earned and used and stated that the reports

were accurate.

Union grievances over pay issue

During his employment, Klaus was subject to a Collective Bargaining

Agreement between County of Macoupin/the Sheriff of Macoupin County and

Policemen’s Benevolent Labor Committee (CBA). Article XII of the CBA – Hours

of Work and Overtime provides in Section 1. Hours of Work, in relevant part,

“Deputies will remain on 8-hour shifts, but will begin rotating days off . . . The

Sheriff will meet and, if requested to, bargain any schedule changes with the Union

prior to making any changes to schedules. The Union shall have the right to bargain

over any significant changes to schedules. Any impasse resulting from such

bargaining will be resolved in accordance with Section 14 of the IPLRA.”

Article XII of the CBA – Hours of Work and Overtime provides in Section 2.

Overtime, in relevant part, “Overtime will be paid for all hours worked beyond the

normal work day (8, 10 or 12 hours), or beyond the normal work period of 160 hours

in 28 days. If they so desire, employees may elect to take compensatory leave time

in lieu of overtime wages, holiday premium pay and vacant shift overtime pay and

may accumulate such compensatory time up to sixty (60) hours.”

Article XXI of the CBA—Miscellaneous in Section 3. Breaks, states in

relevant part, “All employees covered by this Agreement shall receive a thirty (30)

minute dinner break which shall be taken when duty allows.” In addition, two (2)

breaks of twenty (20) minutes shall be allowed.”

Article II of the CBA – Management Rights provides, in relevant part, “Except

as specifically limited, by the express provisions of the Agreement, the Sheriff

retains all traditional rights to manage and direct the affairs of the Sheriff’s

Department in all various aspects and to manage and direct employees, including but

not limited to the following: . . . . to schedule and assign work; . . . to assign overtime;

. . . to establish, change, combine or abolish positions and the job duties of any

position in accordance with operational requirements. The Sheriff expressly

reserves the right under the agreement to exercise all management rights set forth in

Section 4 of the Illinois Public Labor Relations Act.”

Article X of the CBA – Dispute Resolution and Grievance Procedure

describes how the grievance process works and provides, in relevant part, that a

grievance is “any unresolved difference, complaint or dispute between the Employer

and the Union or any employee regarding the application, meaning or interpretation

of this agreement. The grievance procedure is subject to, and shall not conflict with,

any provisions in the Illinois Public Labor Relations Act.”

Article X of the CBA also contains in Section 7 “Steps in grievance

procedure” and provides a mandatory process by which disputes arising under the

CBA “shall be resolved.”

On August 10, 2004, Klaus brought a grievance under the CBA stating that

he had to come into work 15 minutes early. Klaus was aware that employees did

not come into work 15 minutes ahead of time and they were not disciplined.

Sheriff Gary Wheeler denied Klaus’s grievance in 2004, but Klaus chose not

to advance the grievance to step 2 because he felt that management looked down on

grievances.

On September 23, 2004, Klaus filed a grievance with Sheriff Wheeler seeking

payment of overtime for 16 days that he worked in August 2004 and came in 30

minutes early. The jail superintendent at the time, Robert Mertz, denied Klaus’s

grievance and Klaus did not take the grievance to step 2 and he was not paid for that

time.

Klaus did not file any grievances under Sheriff Kahl’s administration. He

could not recall filing any grievances under Sheriff Albrecht’s administration

regarding his pay.

On October 21, 2015, Klaus gave a grievance to his union steward Lt. Ryan

Dixon regarding payment of overtime for reporting to work 15 minutes prior to his

shift starting and taking of breaks, but he never heard anything back from the union

or Sheriff’s Office and no one in the Sheriff’s Office ever told him they were aware

of this grievance. The Defendants state that the Sheriff’s Office never received the

grievance. After learning of Klaus’s intention to file a grievance, Lt. Dixon did not

present the grievance to the Sheriff’s Office because Klaus had submitted his notice

to retire and was no longer considered a member of the union. Klaus did not file any

grievances over his pay between 2004 and October 21, 2015.

Robert Eskew’s deposition

Robert Eskew is retired from the Sheriff’s Office. He was employed from

September 23, 1992 to September 23, 2016. He was a corrections deputy working

as a corrections officer. Eskew worked with Klaus the entirety of his employment.

Eskew testified that in March 2015, he walked into the control room as Sheriff

Kahl was yelling at Klaus, screaming at him, threatening him, telling him if he did

not want to do his job he should go home and quit wasting his time. Sheriff Kahl

denies making this statement to Klaus. Both Klaus and Eskew (who did not support

any candidate in the sheriff’s election) were counseled for not noticing that inmates

tried to escape from the jail during their shift.

Klaus’s October 15, 2015 retirement

On October 15, 2015, while he was on vacation, Klaus notified Chief Deputy

Quinn Reiher that as of October 25, 2015, he would be retiring from the Sheriff’s

Office. Chief Deputy Reiher did not ask and Klaus did not give a reason for retiring.

Sheriff Kahl did not know any of the circumstances of Klaus’s retirement, does not

recall speaking with him during that process and did not do an exit interview of

Klaus.

Klaus claims he intended to work until he had put in 30 years or until full

retirement age for social security but had to retire at age 58. Dr. John Navin is Dean

and Professor of Economics at Ohio Northern University. Dr. Navin is qualified to

place a valuation on the economic loss to an individual resulting from early

retirement. Dr. Navin also gives a loss figure for unpaid work time of $50,693.17.

This did not involve any analysis or consideration of a separate overtime calculation.

The Defendants dispute the assertion and say Klaus voluntarily retired and his

alleged damages have no bearing on any of the issues in Defendants’ motion for

summary judgment.

II. DISCUSSION

Plaintiff Robert Klaus asserts claims for wrongful termination under § 1983

(Count I) and a wage claim under the Illinois Labor Act (Count II).

The Defendants move for summary judgment, alleging the § 1983 First

Amendment retaliation claim fails because Klaus did not suffer an adverse action

and was not constructively discharged. Moreover, the First Amendment activity was

not a motivating factor in any retaliatory act. The Defendants further assert Sheriff

Kahl is entitled to qualified immunity. They assert the wage claim should have been

brought through Kahl’s union contract.

Klaus asserts there are genuine issues of material fact which preclude the entry

of summary judgment.

Legal standard

Summary judgment is appropriate if the motion is properly supported

and “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The Court construes all

inferences in favor of the non-movant. See Siliven v. Indiana Dept. of Child

Services, 635 F.3d 921, 925 (7th Cir. 2011). To create a genuine factual dispute,

however, any such inference must be based on something more than “speculation or

conjecture.” See Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012)

(citation omitted). Because summary judgment “is the put up or shut up moment in

a lawsuit,” a “hunch” about the opposing party’s motives is not enough to withstand

a properly supported motion. See Springer v. Durflinger, 518 F.3d 479, 484 (7th

Cir. 2008). Ultimately, there must be enough evidence in favor of the non-movant

to permit a jury to return a verdict in its favor. See id.

First Amendment retaliation

(1)

In a First Amendment retaliation case, a plaintiff must present evidence that

(1) he engaged in constitutionally protected speech; (2) he suffered a deprivation that

would likely deter protected speech; and (3) the protected speech was a motivating

factor in the deprivation. See Harnishfeger v. United States, 943 F.3d 1105, 1112

(7th Cir. 2019). If the plaintiff meets these elements, the burden shifts to the public

employer which must show that it would have inflicted the deprivation anyway. See

id. at 1112-13. If the defendant makes that showing, “the burden shifts back to the

plaintiff to demonstrate that the proffered reason was pretextual and that the real

reason was retaliatory animus.” See Milliman v. County of McHenry, 893 F.3d 422,

431 (7th Cir. 2018).

Political affiliation is activity that is protected by the First Amendment. See

Carlson v. Gorecki, 374 F.3d 461, 464 (7th Cir. 2004). Because Sheriff Kahl knew

that Klaus supported his opponent in the 2014 election, there is no dispute that Klaus

is able to meet the first element. The Parties dispute whether Klaus suffered any

deprivation that would likely deter free speech and whether Klaus’s political support

for Sheriff Kahl’s opponent was a motivating factor in any decision by the sheriff

that could be considered retaliatory.

“A § 1983 retaliation claim does not require an adverse employment action

within the same meaning as other anti-discrimination statutes.” Hutchins v. Clarke,

661 F.3d 947, 956 (7th Cir. 2011). “To determine whether an action is sufficiently

adverse, it must present an actual or potential danger of deterring or chilling the

plaintiff’s exercise of free speech.” Graber v. Clarke, 763 F.3d 888, 899 (7th Cir.

2014).

(2)

Klaus claims he was approached by the union steward months before the

election and asked to sign a no confidence petition as to Sheriff Albrecht, whose

reelection the union opposed. He asserts this forced the employees to take a position

and that Kahl was keeping score. Klaus refused to sign. The Defendants allege Kahl

has not shown that Sheriff Kahl was aware of this proposal by the union or Klaus’s

opposition to the vote.

Klaus then put an Albrecht campaign sign in his yard. Because Kahl lived

only two blocks away in a small town, he knew Klaus supported his opponent. The

Defendants do not dispute Kahl knew Klaus supported his opponent.

Klaus acknowledges Albrecht gave him a major promotion to sergeant with a

big pay raise as a reward for his loyalty. He describes the promotion as “clearly

political” and that nothing happens in the Macoupin County Sheriff’s Department

that is not politically driven.

Klaus alleges Kahl appeared to be upset over the promotion. Kahl claims he

did not care. The Defendants allege that even if Kahl was upset by this development

(which should have concerned all Macoupin County taxpayers), Sheriff Kahl did not

demote Klaus or reduce his pay upon taking office.

Klaus further asserts Sheriff Kahl berated him in front of his co-workers,

telling him he was a do-nothing and should just go home and do nothing. The

Defendants allege Sheriff Kahl was upset and may have yelled at both Klaus and the

other deputy then on duty, Robert Eskew (who did not support any candidate in the

election), because they failed to detect inmates trying to escape from the jail.

Nothing suggests Kahl disciplined Klaus or yelled at him because of his political

support of the former sheriff.

Klaus alleges his immediate supervisor, Lt. Col. Ibberson, warned Klaus this

was going to be a long road and it would be a tough haul. Klaus says this sent a

clear message. The Defendants state that, assuming this occurred, it occurred on one

occasion over ten months. Moreover, Lt. Col. Ibberson did not recall ever making

that statement but said there were a number of misunderstandings between him and

other employees when he first became jail superintendent. Ibberson claims other

employees erroneously thought he was best friends with Sheriff Kahl. However,

Ibberson testified he did not campaign for Kahl and did not know he was going to

take the job until after Kahl was elected. Ibberson further testified he was instructed

to straighten up the jail and that’s what he did.

Klaus claims the write-ups began with each being more menacing in tone.

The final one promised suspension or discharge as the next step. There were four

write-ups in succession. This was more than he had in the previous 20 years. Klaus

asserts the Sheriff revealed his agenda when he told Klaus he was a do-nothing and

should be at home doing nothing.

The Defendants claim Klaus’s assertion about the write-ups is not persuasive.

Virtually every employer in the county warns employees who receive write-ups that

further violations may result in progressive discipline. They allege the Macoupin

County Sheriff’s Office is no different, but unlike at-will employers, union

employees in the Sheriff’s Office have the benefit of extensive progressive

discipline. This includes a verbal warning and three written warnings before

receiving even a suspension, and after six months the discipline cannot be used as a

basis for further discipline. Much of the alleged discipline that Klaus complains

about either was not discipline or it followed a rules violation. The Defendants note

that Klaus could not say how many written reprimands he received during his

employment or if there were more than five.

Klaus alleges he knew there was trouble when, soon after the election, Sheriff

Kahl came in the control room screaming at him. Co-worker Robert Eskew testified

he walked in, heard the screaming, was embarrassed over the incident and left. Klaus

claims Sheriff Kahl was conveying an ominous message—that he was a do-nothing

employee who should retire and go home where he could do nothing.

Klaus alleges this incident was unprofessional, at best, if not blatantly abusive.

No employee in a professional work environment—particularly a paramilitary

organization like the Sheriff’s Office—would expect insulting statements and such

conduct from its leader. Klaus asserts the interaction could not have served any

legitimate corrective action.

Klaus next notes that John Pickett, like Klaus, had campaigned for Albrecht.

When Pickett was in a room with other deputies and Kahl walked in soon after the

election, Pickett rose and extended his hand and told Kahl congratulations. Klaus

claims Kahl refused to shake his hand and told Pickett he was too old for the job,

training him is a waste of time and money and he would hate his job. He was told

he would work weird shifts and be on call constantly.

Klaus claims that upon seeing how Pickett was treated, the message was

clear—Kahl did not want anyone crossing him politically. This concerned Klaus as

well. Klaus heard the warning of a rough road ahead if he did not retire and believed

that trouble was ahead for him as well.

The Defendants note these statements allegedly caused Pickett to resign even

though Kahl had not been elected sheriff yet and would not take office for eight

months. Moreover, no evidence shows that Kahl knew who Pickett politically

supported or that the statements were related to his support of former Sheriff

Albrecht. Moreover, Klaus testified he did not know when Pickett left the Sheriff’s

Office and did not know whether he left voluntarily. The Defendants further claim

that because Sheriff Kahl allowed Klaus to work the shifts he wanted and sent him

for training, Kahl’s alleged statements to Pickett could not have dissuaded Klaus

from politically supporting other people.

Klaus claims his conditions of employment had changed. He was written up

for releasing a female after taking bond. Klaus says he was disciplined for not taking

bond on a charge a dispatcher failed to catch.

Klaus contends the acts became so adverse as to chill the expression of free

speech. He says he made the decision to retire under stress and the threat of

discharge. Klaus claims his work environment had become unbearable and he

reasonably concluded he was going to be fired. Each write-up became more

ominous in tone with the last threatening the next step as discharge. The Defendants

asserts the facts do not support these statements.

Klaus claims he saw that Sergeant George Griffith had been terminated and

lost his pension as part of the discharge. He says he feared the same fate awaited

him. The Defendants claim this affidavit contradicts his deposition and is irrelevant.

Griffith was terminated by Sheriff Wheeler, one of Kahl’s predecessors.

The Defendants further allege that from December 3, 2014 through Klaus’s

retirement letter on October 15, 2015, Kahl did not ever threaten to terminate Klaus,

he never lost any income, he was never suspended and Klaus did not provide a reason

why he was retiring. The Defendants claim his alleged duress from being ignored

by Sheriff Kahl twice in ten months is not actionable.

(3)

Upon reviewing the record, the Court is unable to conclude Klaus suffered a

deprivation that would likely deter protected speech. Despite the fact that Klaus was

not a supporter of Sheriff Kahl, Klaus was not demoted after receiving what he

admitted was a political promotion from the previous sheriff. The fact that Klaus

and Sergeant Chiarodo were tasked with handling sex offender registrations for

several months would not likely deter protected speech. Moreover, the Court is

unable to find it was significant that Klaus, along with a number of other employees,

had to take bond money after changes were made. It is fairly unremarkable that job

duties might change from one administration to another.

Additionally, while Klaus disagreed with the July 21, 2015 written reprimand

because he was not given information about the Montgomery County warrant, it

would not have been unreasonable for him to check outstanding warrants. More

significantly, he did not lose any money from the reprimand. Klaus had been written

up on other occasions and that did not dissuade him from supporting candidates.

The previous sanctions also did not preclude him from being promoted to sergeant.

The Court is also unable to find that the alleged verbal abuse rises to the level

to constitute a deprivation that would deter protected speech. One time that this

occurred was when inmates had tried to escape and Sheriff Kahl apparently believed

Klaus’s shift was to blame. Given those circumstances, it appears Kahl may have

had a legitimate basis to be upset. The fact that Kahl also yelled at Robert Eskew,

who did not support any candidate for sheriff, suggests that any verbal abuse was

not connected to protected speech.

The statements attributed to Lt. Col. Ibberson appear to be a case of an

individual who is part of a new administration showing who is “boss.” Statements

that “it’s a long road, and it’s going to be a tough haul” and that “sergeants are going

to start earning their pay” are relatively innocuous and the Court does not believe

they would deter protected speech. See e.g., Long v. Hammer, 727 F. App’x 215,

217 (7th Cir. 2018) (defendant’s “yelling” at plaintiff was not unlawfully retaliatory

because “simple verbal harassment” is insufficient to deter a person of ordinary

firmness from submitting grievances).

The Seventh Circuit has recognized two types of constructive discharge. One

involves when a plaintiff resigns because of discriminatory “working conditions

even more egregious than that required for a hostile work environment claim.”

Fields v. Bd. of Educ. of City of Chicago, 928 F.3d 622, 625 (7th Cir. 2019). “The

second occurs when an employer acts in a manner that would make clear to a

reasonable employee that she will be immediately fired if she does not resign.” Id.

For many of the reasons previously stated, Klaus’s constructive discharge

claim fails because he has not shown that working conditions were so intolerable

that his only choice was to quit. Klaus did not provide a reason for his retirement

and Sheriff Kahl was unaware of the circumstances of his retirement. There is

nothing in the record which suggests that Klaus had a reasonable belief he was about

to be terminated at the time he submitted his resignation.

For all of these reasons, the Court concludes that Klaus has failed to show that

he suffered an adverse action that would likely deter First Amendment activity.

The Court further finds that, even if Klaus presented sufficient evidence to

show that an adverse action occurred, he has not produced evidence that his political

support of Sheriff Kahl’s opponent was a motivating factor in any of the allegedly

adverse acts taken by the Sheriff’s Office. Moreover, the Sheriff’s Office had

reasonable explanations for any actions taken and Klaus is unable to show pretext.

To the extent any claims are directed against Sheriff Kahl in his individual

capacity, the Court finds that he is entitled to qualified immunity. Based on the

applicable case law and the undisputed facts in this case, Kahl would not have been

aware that his conduct violated a clearly established right of which a reasonable

person would have known.

(4)

Based on the foregoing, the Court concludes there are no genuine issues of

material fact and the Defendants are entitled to summary judgment on Plaintiff

Robert Klaus’s First Amendment claim. Because all federal claims are being

dismissed, the Court declines to exercise subject matter jurisdiction over the

Plaintiff’s supplemental state law wage discrimination claim. See 28 U.S.C. §

1367(c)(3).

Ergo, the Motion for Summary Judgment of Defendants Shawn Kahl and

County of Macoupin [d/e 22] is GRANTED.

The Plaintiff’s First Amendment retaliation claims are DISMISSED with

PREJUDICE.

The Court relinquishes jurisdiction over the Plaintiff’s state law claim.

The final pretrial conference set for March 24, 2020 and bench trial setting on

April 7, 2020 are Canceled.

The Clerk will enter Judgment and terminate this case.

ENTER: February 5, 2020

FOR THE COURT:

/s/ Richard Mills

Richard Mills

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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