Davis v. Village Of Hazel Crest

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WILLIAM P. DAVIS, )

)

Plaintiff, )

) Case No. 17-cv-3724

v. )

) Judge Robert M. Dow, Jr.

VILLAGE OF HAZEL CREST, )

VERNARD L. ALSBERRY, JR., )

MARY GRANT, KEVIN MOORE, )

SUSAN PATE, BENJAMIN RAMSEY, )

and SANDRA G. SLAYTON, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff William Davis (“Plaintiff”) brings suit against Defendants the Village of Hazel

Crest (“Village”), Village President Vernard L. Alsberry, Jr. (“Alsberry”), and Village Trustees

Mary Grant, Kevin Moore, Susan Pate, Benjamin Ramsey, and Sandra Slayton (collectively, the

“Trustees”) for alleged violations of federal and Illinois law arising out of the elimination of

Plaintiff’s position as Director of Communications and Public Outreach for the Village.

Currently before the Court is Defendants’ motion to dismiss the complaint for failure to state a

claim [14]. For the reasons explained below, Defendants’ motion [14] is granted in part and

denied in part. The Court grants the motion to dismiss Counts I (retaliation/wrongful discharge),

II (breach of contract/wrongful termination), and IV (procedural Due Process) as to all

Defendants. The Court grants the motion to dismiss Count III (violation of the First

Amendment) as to the Individual Defendants but denies the motion to dismiss Count III as to the

Village. This case is set for status hearing on February 27, 2018 at 9:30 a.m.

I. Background1

The Village is operated under a “Manager Form of Government” pursuant to Article 5 of

the Illinois Municipal Code, Section 2-159 (the “Code”). [14-2] at 2. Under the Code, a Village

President has no authority to appoint department heads or to hire, fire or direct Village

employees. Instead, these powers are bestowed on the appointed (not elected) Village Manager.

A Village President also does not have unilateral authority to appoint or terminate the Village

Manager. That authority is held jointly by the Village President and Village Board of Trustees.

In April 2012, the then-Village Manager, James Whigham, hired Plaintiff as the Director

of Communications and Public Outreach. Plaintiff accepted employment “in reliance on the

Code which, as a matter of public policy, prohibited political hiring and firing by the Village

President and/or the Village Board of Trustees.” [14-2] at 3. Shortly after Plaintiff accepted

employment at the Village, Alsberry became Village President.

Plaintiff alleges that during the course of his employment, Alsberry “repeatedly violated,

or attempted to violate, the Code by forcing hires or orchestrating the termination of certain

Village employees for political reasons and attempting to illegally direct and/or influence Village

employees’ activities.” Id. Plaintiff openly opposed and interfered with Alsberry’s efforts by

preventing him from forcing his preferential patronage hires at the Village. Alsberry did not

consider Plaintiff to be a part of his political team and plotted to remove Plaintiff from his

position.

On April 30, 2015, Defendants, without warning or explanation, cancelled Plaintiff’s

medical benefits. The next day, May 1, 2015, Alsberry convened a special board meeting to vote

1 For purposes of Defendants’ motions to dismiss, the Court assumes as true all well-pled allegations set

forth in Plaintiff’s complaint. See [14-2]; Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th Cir.

2017).

to terminate Plaintiff’s employment. Plaintiff alleges that this violated Section 2-159 of the

Village Code which states:

Neither the president nor the board of trustees shall direct or request the

appointment of any person to, or his removal from, office by the manager or any

of his subordinates, or in any manner take part in the appointment or removal of

officers and employees in the administrative services of the village, except as

otherwise provided by law or elsewhere in this division or this Code. Except for

the purpose of inquiry, the board of trustees shall deal with the administrative

service solely through the manager and neither the board nor any member thereof,

shall give orders to any subordinates of the manager, either publicly or privately.

[14-2] at 4.

Just prior to the special board meeting, the Village Manager, Marlo Kemp (“Kemp”)

informed the Individual Defendants that their plan to terminate Plaintiff “was illegal and should

not be done; procedurally, Defendants could not eliminate an entire department without a budget

amendment that reflected that elimination and accounted for the employees and other expenses

in the eliminated department.” Id.

During the special board meeting, Alsberry and the other Individual Defendants ignored

Kemp’s warning and terminated Plaintiff’s employment. Defendants allegedly “attempted to

cover their illegal tracks by eliminating Department 15 at the Village; if Plaintiff’s entire

department was eliminated, he was eliminated.” Id. at 5. However, Plaintiff alleges,

“Defendants never actually eliminated Department 15 from the Village budget”; Defendants

continue to pay Village expenses from Department 15; and Plaintiff’s position and salary were in

Department 11, not Department 15. Id. Immediately after the meeting, Defendants deactivated

Plaintiff’s access card, locked him out of his office, and refused to pay his salary and benefits.

Defendants also placed Kemp on administrative leave and terminated his employment. Kemp

has also filed suit against Defendants.

Plaintiff brings a four-count complaint against the Village, Alsberry, and the Trustees. In

this opinion, the Court refers to Alsberry and the Trustees collectively as the “Individual

Defendants.”

First, Plaintiff brings a state-law claim for retaliation and wrongful discharge against all

Defendants. Plaintiff alleges that only the Village Manager (Kemp) was authorized under the

Village Code to terminate his employment. Nonetheless, Plaintiff alleges that, in retaliation for

his opposition to Alsberry’s violations of the Village Code, Defendants terminated his health

insurance benefits, unlawfully terminated his employment by pretending to eliminate

Department 15, locked him out of his office, and refused to pay his salary and benefits.

Second, Plaintiff brings a state-law claim for breach of contract/wrongful termination

against all Defendants. Plaintiff alleges that the “terms of employment included” Section 2-159

of the Code (quoted above) and that he “relied upon the Code in accepting employment at the

Village.” [14-2] at 9. Plaintiff alleges that Defendants violated Section 2-159 and breached his

contractual rights by wrongfully terminating his employment.

Third, Plaintiff claims that all Defendants violated his First Amendment right to free

speech and to be free from retaliation for exercising his right to free speech. Plaintiff alleges that

he openly disagreed with Alsberry’s political hiring and firing in violation of the Code and

Alsberry’s attempts to force political “patronage” hiring in the Village. [14-2] at 11. As a

consequence, Plaintiff alleges, Defendants “targeted [him] for retaliation, including effectively

terminating [him] under the guise of ‘eliminating his department’, in violation of the First

Amendment.” Id.

Fourth, Plaintiff contends that Defendants violated his right to procedural due process by

convening a special board meeting to terminate his employment without authority and in

violation of Section 2-159 of the Code, covering up their illegal actions under the guise of

eliminating a department, without actually eliminating the department.

Currently before the Court is Defendants’ motion to dismiss Plaintiff’s complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. Legal Standard

A Rule 12(b)(6) motion challenges the legal sufficiency of the complaint. For purposes

of a motion to dismiss under Rule 12(b)(6), the Court “‘accept[s] as true all of the well-pleaded

facts in the complaint and draw all reasonable inferences in favor of the plaintiff.’” Calderon-

Ramirez, 877 F.3d at 275 (quoting Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir.

2016)). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s complaint must allege

facts which, when taken as true, “‘plausibly suggest that the plaintiff has a right to relief, raising

that possibility above a speculative level.’” Cochran v. Illinois State Toll Highway Auth., 828

F.3d 597, 599 (7th Cir. 2016) (quoting EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th

Cir. 2007). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v.

City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

III. Analysis

A. Plaintiff’s Federal Claims Against the Individual Defendants

Defendants move to dismiss Plaintiff’s federal claims against the Individual Defendants

on multiple grounds, including qualified immunity. In response to their qualified immunity

argument, Plaintiff clarifies that his federal claims are against the Individual Defendants in their

official capacities only and asserts that “[i]t is well established in Illinois that [the] qualified

immunity doctrine does not apply to official capacity claims.” [21] at 13. Grasping on to

Plaintiff’s clarification, Defendants argue in their reply brief that, since the federal claims are

being brought against the Individual Defendants in their official capacities only, those claims are

duplicative of the federal claims against the Village and, therefore, should be dismissed.

The Court agrees that Plaintiff’s federal claims against the Individual Defendants in their

official capacities are duplicative of his federal claims against the Village. A suit naming a

municipal official “as a defendant in his official capacity only” is “the equivalent of suing the

[municipality].” Jungels v. Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987); see also Walker v.

Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (“Actions against individual defendants in their

official capacities are treated as suits brought against the government entity itself.”). “Because

adding the official-capacity claim in the present situation ‘makes no practical difference,’ there is

no reason to retain [the Individual Defendants] as … part[ies] to this action.” Willis v. Bell, 726

F. Supp. 1118, 1124 (N.D. Ill. 1989) (quoting Jungels, 825 F.2d at 1129) (detainee’s civil rights

claim against police superintendent in his official capacity was duplicative of claim against city

and would be dismissed); see also Ball v. City of Muncie, 28 F. Supp. 3d 797, 802 (S.D. Ind.

2014) (section 1983 claims brought by former city employee against mayor in his official

capacity and claims against city itself were redundant and, accordingly, the official-capacity

claims against mayor individually would be dismissed as duplicative of the claims against city);

see generally Freedom Mortg. Corp. v. Burnham Mortg., Inc., 720 F. Supp. 2d 978, 992 (N.D.

Ill. 2010) (“It is well-settled that duplicative counts in a complaint may be properly dismissed.”

(internal quotation marks and citation omitted)). Therefore, the Court grants Defendants’ motion

to dismiss Counts III and IV as to the Individual Defendants.

Since it is dismissing the federal claims against the Individual Defendants, the Court

finds it unnecessary to resolve Defendants’ absolute legislative immunity argument. Defendants

make that argument as to the Individual Defendants only—apparently recognizing that the

Village “does not have the legislative immunity of its employees.” Hanania v. Loren-Maltese,

319 F. Supp. 2d 814, 824 (N.D. Ill. 2004); see also Owen v. City of Independence, Mo., 445 U.S.

622, 638 (1980) (“there is no tradition of immunity for municipal corporations”).

B. Plaintiff’s First Amendment Claim Against the Village

Defendants argue that Plaintiff’s First Amendment claim against the Village should be

dismissed because “even if the elimination of Plaintiff’s position was politically motivated, such

a decision is appropriate for a director position.” [14] at 7. As support, Defendants cite solely to

Walsh v. Heilmann, 472 F.3d 504, 506 (7th Cir. 2006), which they argue “allow[s] the removal

of high-ranking employees based upon political affiliation.” [14] at 6.

Plaintiff responds that Walsh is inapplicable because the Village functions under a

Managerial Form of Government pursuant to Article 5 of the Illinois Municipal Code, under

which the Village Manager, not the Village President, is the head of the municipal government

and has exclusive authority to appoint and remove all department heads. See [21] at 2, 11-12

(citing 65 ILCS 5/1-3-7(2)).

The Court agrees with Plaintiff that Walsh does not apply to the facts of this case. In

Walsh, the Seventh Circuit held that a hearing officer had policymaking powers and therefore

could be terminated for political reasons without violating the First Amendment, because “[i]f

the people are to choose policy at the polls, the representatives they elect must be able to make

enough changes in the bureaucracy to put the winning side’s program into effect rather than be

frustrated by a permanent officialdom with its own ideas about governance.” 472 F.3d at 506.

In this case, Plaintiff does not allege (and Defendants do not contend) that Plaintiff’s position

was a policymaking one. To the contrary, Plaintiff alleges that the Village is set up in the

managerial form of government and therefore, under Illinois’ Municipal Code, “all Director

appointments should be based on merit and fitness, not politics.” [21] at 12. Plaintiff’s First

Amendment claim against the Village therefore remains in the case.

C. Plaintiff’s Due Process Claim Against the Village

Defendants move to dismiss Plaintiff’s procedural due process claim on the basis that

Plaintiff, as “a public employee,” “has no property right in public employment which falls within

the protections of the due process clause of either the state or federal constitution.” [14] at 10

(citing Levin v. Civil Service Commission of Cook County, 288 N.E.2d 97 (Ill. 1972)).

Plaintiff responds that he has a protected interest in continued employment with the

Village to the extent set out in the Illinois Municipal Code and the Village Code, which

“prescribe[] any political firings or retribution.” [21] at 17. Plaintiff relies on Fredrickson v.

Village of Willow Springs, 2008 WL 3008822 (N.D. Ill. 2008), which, he asserts, held that “the

plaintiff’s termination in violation of the Village Ordinance was sufficient to state a procedural

due process claim.” [21] at 17.

The Court concludes that Plaintiff fails to allege a plausible procedural Due Process

claim. The Due Process Clause of the Fourteenth Amendment prohibits states from “depriv[ing]

any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, §

1. “‘To state a claim for a procedural due process violation, a plaintiff must demonstrate (1) a

cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due

process.’” Forgue v. City of Chicago, 873 F.3d 962, 969 (7th Cir. 2017) (quoting Manistee

Apts., LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016)). “To demonstrate a cognizable

property interest in [a] job” with a public employer, the employee “must be able to show that she

had some legitimate expectation of continued employment.” Meade v. Moraine Valley

Community College, 770 F.3d 680, 686 (7th Cir. 2014). “State law (here, that of Illinois) defines

the extent of [an employee’s] property interest in her continued employment.” Id. In Illinois, it

is a “well-settled rule that ‘the terms of employment must provide that termination will only be

for cause or otherwise evince mutually explicit understandings of continued employment’ in

order for there to be a property interest in employment.” Id. (quoting Cromwell v. City of

Momence, 713 F.3d 361, 364 (7th Cir. 2013)); see generally Waters v. Churchill, 511 U.S. 661,

679 (1994) (“an at-will government employee … generally has no claim based on the

Constitution at all”).

In this case, Plaintiff’s procedural due process claim is deficient because he does not

allege any facts indicating that he had a protected property interest in continued employment

with the Village. In particular, Plaintiff does not allege that he has an employment agreement

that provides for a specific term of employment (such as one year) or that allows for termination

only for cause. By contrast, in the Fredrickson case on which Plaintiff relies, the plaintiff village

clerk was allegedly terminated before the end of her appointed one-year term, and a village

ordinance provided that she was to remain in office until a successor was appointed.

Fredrickson, 2008 WL 3008822, at *9. In determining whether Plaintiff has a protected property

interest in his job, it is irrelevant whether the proper procedure was used to terminate him. As

the Seventh Circuit explained in an analogous situation, “[w]hen the claimed deprivation of

property is the loss of a job, the entitlement must be to a job, rather than just to a set of

disciplinary procedures,” in order for a plaintiff to have a viable due process claim. Campbell v.

City of Champaign, 940 F.2d 1111, 1113 (7th Cir. 1991). Therefore, the Court dismisses Count

IV of Plaintiff’s complaint against the Village.

D. Plaintiff’s Retaliation/Wrongful Discharge Claim Against the Individual

Defendants

Plaintiff concedes ([21] at 16) Defendants’ argument that the Illinois “Supreme Court has

held that the only proper defendant in a retaliatory discharge action is the plaintiff’s former

employer.” [14] at 10 (citing Buckner v. Atlantic Plant Maintenance, Inc., 694 N.E.2d 565, 567

(Ill. 1998)). Therefore, Count I of Plaintiff’s complaint is dismissed as to the Individual

Defendants.

E. Plaintiff’s Retaliation/Wrongful Discharge Claim Against the Village

Defendants move to dismiss Plaintiff’s retaliation/wrongful discharge claim based on

several provisions of the Illinois Local Government and Governmental Employees Tort

Immunity Act (“Tort Immunity Act”), 745 ILCS 10/2-103 and 745 ILCS 10/2-201.

The Court concludes that the Village is immune from suit pursuant to 745 ILCS 10/2-103

and finds it unnecessary to determine whether the Village also is immune pursuant to 745 ILCS

10/2-201. Pursuant to 745 ILCS 10/2-103, “[a] local public entity is not liable for an injury

caused by adopting or failing to adopt an enactment or by failing to enforce any law.” The

Illinois Supreme Court has held that this immunity applies even where the adoption or failure to

adopt an enactment was motivated by “corrupt or malicious motives.” Village of Bloomingdale

v. CDG Enterprises, Inc., 752 N.E.2d 1090, 1098 (Ill. 2001); see also Pouk v. Village of

Romeoville, 937 N.E.2d 800, 805 (Ill. App. 2010) (holding that “section[] 2-103] of the Tort

Immunity Act does “not contain an exception for willful and wanton conduct”). In this case,

Plaintiff alleges that Defendants terminated him by adopting an enactment—namely the

ordinance that eliminated his Director position. Therefore, under the plain language of the

immunity statute, the Village is entitled to qualified immunity regardless of the motives behind

passage of the ordinance.

Plaintiff argues that the Tort Immunity Act does not bar his claim, because Defendants’

decision to terminate him does not amount to a “determination of policy or exercise of

discretion,” as required for the Act to apply. [21] at 14 (citing Weiler v. Village of Oak Lawn, 86

F. Supp. 3d 874, 885 (N.D. Ill. 2015); Valentino v. Village of South Chicago Heights, 575 F.3d

664, 679 (7th Cir. 2009)). But the cases on which Plaintiff relies are applying section 2-201 of

the Tort Immunity Act, not section 2-103, and therefore are inapplicable. See 745 ILCS 10/2-

201 (“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”); Weiler, 86 F. Supp.

3d at 885 (“In order for an official to be entitled to immunity under section 2–201, the action that

caused the injury must be both a determination of policy and an exercise of discretion.” (internal

quotation marks and citation omitted)); Valentino, 575 F.3d at 679 (“Section 2–201 immunizes

an individual defendant only to the extent that the action he is being sued for involves both the

making of a policy choice and the exercise of discretion.”).

Defendants also argue that Plaintiff’s retaliation/wrongful discharge claim is barred by

the one-year statute of limitations that applies to retaliatory discharge claims brought against

public employers. According to Defendants, Plaintiff was terminated on May 1, 2015, but failed

to file suit until nearly two years later, on March 29, 2017. Plaintiff responds that the statute of

limitations has been tolled because he was never officially terminated by the Village Manager as

required by the Village Code.

The Court concludes that Plaintiff’s retaliation/wrongful discharge claim is barred by the

statute of limitations and must be dismissed on this ground, as well. The Tort Immunity Act sets

a one-year statute of limitations for tort claims against a government entity or its employees. 745

ILCS 10/8–101; see also Cunliffe v. Wright, 51 F. Supp. 3d 721, 731-32 (N.D. Ill. 2014)

(applying one-year statute of limitations to retaliatory discharge claim); Halleck v. County of

Cook, 637 N.E.2d 1110, 1113 (Ill. App. 1994) (same). The Court is not persuaded by Plaintiff’s

argument that the statute of limitations has been tolled due to the Village’s alleged failure to

follow the proper procedure for terminating him. Plaintiff expressly alleges in his Complaint

that the Individual Defendants “terminated [his] employment” at their May 1, 2015 special board

meeting. [14-2] at 5. At that point, Plaintiff’s injury was complete—he had been wrongfully

discharged—and the Village Manager did not need to take any action before the statute of

limitations began to run on his wrongful discharge claim. Plaintiff does not cite any case law

that calls this conclusion into doubt.

For these reasons, Count I of Plaintiff’s complaint is dismissed as to the Village.

F. Plaintiff’s Breach of Contract Claim Against All Defendants

Finally, Defendants argue that Plaintiff’s breach of contract claim must be dismissed

because Plaintiff “does not allege that there was an actual employment contract between him and

the Defendants,” but rather “argues that [Section] 2-159 of the municipal code represented

Defendants’ offer to follow certain procedures contained within the code.” [11] at 14.

According to Defendants, Section 2-159 did not create a contract between Plaintiff and

Defendants. Further, Defendants argue, to the extent that any contract was created by the former

Village Manager’s hiring of Plaintiff, the Individual Defendants could not have been parties to

that contract, because they were not in office at the time of Plaintiff’s hiring.

Plaintiff responds that his breach of contract claim should not be dismissed because an

employment contract was created when “Plaintiff accepted the definite terms of the Director

position, as set out in the State and Municipal Code, e.g., he answered to and took direction from

the Village Manager only.” [21] at 17. Plaintiff cites Pierce v. Commonfields of Cahokia Public

Water Dist., 897 F. Supp. 2d 743, 752 (S.D. Ill. 2012), for the proposition that “if the Board

appropriated funds for Plaintiff’s salary in the Village Budget, a contract was formed between

Plaintiff and the Village.” [21] at 18.

The Court concludes that Plaintiff has not pled any facts suggesting that he is a party to a

contract with the Individual Defendants. Therefore, Plaintiff’s breach of contract claim must be

dismissed as to the Individual Defendants.

Plaintiff has not alleged a plausible breach of contract claim against the Village, either.

“The required elements of a breach of contract claim in Illinois are the standard ones of common

law: (1) offer and acceptance, (2) consideration, (3) definite and certain terms, (4) performance

by the plaintiff of all required conditions, (5) breach, and (6) damages.” Wigod v. Wells Fargo

Bank, N.A., 673 F.3d 547, 560 (7th Cir. 2012). In this case, Plaintiff fails to allege that “there

was an actual employment contract between” him and the Village, or that the Village breached

any contractual obligations that it undertook when he was hired as Director. Burge v. Rogers,

2014 WL 2118739, at *2 (N.D. Ill. May 21, 2014). Instead, Plaintiff alleges that he “accepted

the definite terms of the Director position, as set out in the State and Municipal Code, e.g., he

answered to and took direction from the Village Manager only,” and that “Defendants breached

the contract by usurping the authority of the Village Manager and locking Plaintiff out of his

office.” [21] at 17-18 (emphasis added). However, “it has long been understood that statutes are

not contracts.” Pittman v. Chicago Bd. of Educ., 64 F.3d 1098, 1104 (7th Cir. 1995). As the

Seventh Circuit has explained, “[t]o treat statutes as contracts would enormously curtain the

operation of democratic government,” with statutes acting as “ratchets, creating rights that could

never be retracted or even modified without buying off the groups upon which the rights had

been conferred.” Id.

The Pierce case cited by Plaintiff is inapplicable, because the issue in that case was not

whether the plaintiff had an actual contract with the public water district (he did, for a two-year

term) but instead whether the contract was null and void under Illinois’ “prior appropriations

rule” because it was allegedly made without the water district board appropriating the necessary

funds to account for the plaintiff’s salary. 897 F. Supp. 2d at 745, 752-53. In this case, Plaintiff

alleges a breach of the Village Code—not a contract—and therefore fails to state a claim for

breach of contract. See Burge, 2014 WL 2118739, at *2 (dismissing breach of contract claims

brought by former employees of village police department, who alleged that they were

terminated in retaliation for issuing parking ticket to one of the defendants, because the

plaintiffs’ swearing of an oath to become police officers did not constitute an acceptance of

defendants’ “offer” to follow applicable regulations and plaintiffs did not “allege there was an

actual employment contract between” them and the village). Count II of Plaintiff’s complaint is

dismissed as to all Defendants.

IV. Conclusion

For these reasons, Defendants’ motion to dismiss [14] is granted in part and denied in

part. The Court grants the motion to dismiss Counts I (retaliation/wrongful discharge), II (breach

of contract/wrongful termination), and IV (procedural Due Process) as to all Defendants. The

Court grants the motion to dismiss Count III (violation of the First Amendment) as to the

Individual Defendants but denies the motion to dismiss Count III as to the Village. This case is

set for status hearing on February 27, 2018 at 9:30 a.m.

□□□

Robert M. Dow, Jr.

United States District Judge

15