Oesterlin v. Cook County Sheriff's Department

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WAYNE OESTERLIN, )

)

Plaintiff, )

) No. 14 CV 7473

v. )

) Magistrate Judge Sidney I. Schenkier

COOK COUNTY SHERIFF’S )

DEPARTMENT, SHERIFF THOMAS

DART, in his official capacity )

as Sheriff of Cook County, Illinois,and —_)

COOK COUNTY, a unit of municipal _)

government, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER!

Before us are cross-motions for summary judgment regarding the lawfulness of certain

employment actions taken against Plaintiff Wayne Oesterlin by defendants, Cook County Sheriff's

Department, Sheriff Thomas Dart, and Cook County. Mr. Oesterlin, a former Deputy Sheriff for

the Cook County Sheriff's Department, was terminated from that position for the stated reason

that he improperly used the Law Enforcement Agencies Data System (“LEADS”), in violation of

a Cook County Illinois Court Services Department General Order and the Sheriff's Department’s

Merit Board Rules and Regulations (doc. # 102: Pl. 56.1 Statement of Undisputed Fact (PSOF) ff]

27, 35). Mr. Oesterlin’s termination occurred after an Office of Professional Review (“OPR”)

‘Pursuant to an order of the Executive Committee and on the consent of the parties and 28 U.S.C. § 636(c),

on November 15, 2016, the case was assigned to this Court for all proceedings, including the entry of final judgment

(doc. # 43).

investigation report on his LEADS usage recommended to the Merit Board that he be discharged;

the Merit Board voted in September 2012 to discharge plaintiff effective December 27, 2010

(PSOF § 24; doc. 99: Defendants’ 56.1 Statement of Undisputed Fact (DSOF) { 7; doc. # 69:

Answer 27).

Plaintiff appealed that decision to the Circuit Court of Cook County, which on November

12, 2013, remanded the case to the Merit Board with instructions (doc. # 16: Pl.’s Mot. to Stay at

1). The Merit Board reaffirmed the termination decision, which was confirmed by the Circuit

Court of Cook County on April 17, 2014 (/d@.). Plaintiff then pursued parallel courses of action.

We address in some detail the procedural course that followed that termination decision, as it bears

on the decision we reach today.

On May 15, 2014, plaintiff filed a notice of appeal to the Illinois Appellate Court from the

Circuit Court’s decision Pls Mot. to Stay at 1-2). And, on September 25, 2014, plaintiff filed a

four count complaint (doc. # 1) in this Court alleging: (1) that the defendants violated his rights to

procedural and substantive due process in connection with the termination (Counts I and II); (2)

that defendants violated 42 U.S.C. § 1981 by harassing him and causing his termination in

retaliation for complaints he made “with the Sheriff's department” (Count III, Compl., { 41); and

(3) that defendants violated 42 U.S.C. § 1983 by harassing him and causing his termination

pursuant to a policy of taking adverse actions against those who report violations or assert lawful

rights (Count IV).

On January 22, 2015, the district judge then presiding in the case stayed the proceedings in

this case — at plaintiff's request — due to the pendency of the state court appeal from the order

confirming the Merit Board decision (doc. # 19). On September 30, 2015, the Illinois Appellate

Court affirmed the Circuit Court decision (DSOF 8). The stay in this case was lifted, and the

defendants moved to dismiss the complaint. On May 13, 2016, the district judge dismissed Counts

I through III (doc. # 34). The district judge dismissed Counts I and II on the ground of res judicata,

and Count III on the ground that Section 1981 does not create a private right of action against state

actors.? The district judge denied the motion to dismiss the Section 1983 retaliation claim,

explaining that based on plaintiffs allegations, he did not receive a “full and fair opportunity to

litigate this claim before the Merit Board.” Plaintiff then filed an amended complaint on June 24,

2016 (doc. # 36), which eliminated the claims dismissed by the district judge and plead only the

same Section 1983 claim that was asserted in the original complaint (First Amended Complaint at

1 n.1).

Discovery then commenced, and it has now been completed. During the pendency of

discovery, on September 23, 2016, the Illinois Appellate Court issued its decision in Taylor v.

Dart, 81 N.E.3d 1 (Ill. App. 2016), which involved an appeal from a Circuit Court ruling upholding

Merit Board decision. The appellate court held that the Merit Board was improperly constituted

beginning in May 2011 when Sheriff Dart appointed an interim member without following proper

appointment procedures. As a result, in that case, the appellate court held that the Merit Board

decision involving Mr. Taylor was void, and thus remanded the case to the Merit Board for further

proceedings. On September 27, 2017, the Illinois Supreme Court denied leave to appeal the

appellate court decision. Taylor v. Dart, 89 N.E.3d 764 (Ill. 2017).

Thereafter, on November 20, 2017, plaintiff filed his second amended complaint in this

case (doc. # 64, “SAC”). In the second amended complaint, plaintiff added allegations concerning

the Merit Board and the way in which it was constituted, but he left unaltered the Section 1983

claim and the assertions he offered in support of it (Compare First Amended Compl. {{ 43-57 and

? At no time has plaintiff sought to challenge those decisions.

SAC ff 46-60). Neither the current version of the complaint nor either of the two predecessor

versions asserts any cause of action seeking a review of the Merit Board determination in his case,

or any allegation that plaintiff made complaints outside the Sheriff's department.

Against the backdrop of this procedural history and the state of the pleadings, we now turn

to the parties’ cross motions for summary judgment. The motions have been fully briefed. For

the reasons that follow, we grant defendants’ motion for summary judgment (doc. # 80) and deny

plaintiff's motion for summary judgment (doc. # 84).

I.

The legal standards governing motions for summary judgment are well-established.

Summary judgment is appropriate where the moving party establishes that there is no genuine

issue as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue exists when “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On cross-motions for summary judgment, “all

reasonable inferences are drawn in favor of the party against whom the motion at issue was made.”

Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir. 2018). We do not “assess the credibility of

witnesses, choose between competing reasonable inferences, or balance the relative weight of

conflicting evidence.” Stokes v. Board of Educ. of the City of Chicago, 599 F.3d 617, 619 (7th Cir.

2010). That said, we are mindful that “[o]nly disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude the entry of summary judgment. Factual

disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.

IL.

In support of their motions, both parties have submitted their own Rule 56.1 statements of

material undisputed facts, and responses to the other party’s statement. “In determining what is

disputed, we focus not only on whether the parties profess to dispute a fact, but also on the evidence

the parties offer to support their statements.” Barkl v. Kaysun Corp., No. 10 C 2469, 2011 WL

4928996, at *1 n.2 (N_D. Ill. Oct. 13, 2011) (citing Zitzka v. Vill. of Westmont, 743 F. Supp. 2d

887, 899 n.2 (N.D. Ill. 2010)). “We review only those facts whose substance would be admissible

at trial under a form permitted by the Federal Rules of Evidence, although the form produced at

summary judgment need not be admissible.” Wragg v. Vill. of Thornton, 604 F.3d 464, 466 (7th

Cir. 2010). The following facts are undisputed unless otherwise noted by the Court.

Mr. Oesterlin began working as a deputy sheriff at the Skokie, Illinois courthouse in June

2003 (PSOF {ff 3, 5). In 2007, Plaintiff was trained to use the LEADS system (PSOF {ff 21, 22).

During the course of his employment at the Skokie Courthouse, Mr. Oesterlin forwarded memos

and grievances to various of his supervisors, particularly during the period March 2006 through

April 2008. Those memos and grievances alleged that other deputies were committing workplace

violations including deputies smoking on the prisoners’ dock and in the courthouse, abusive

language by supervisors, unsafe handling of firearms, altering of timesheets, illegal gambling, and

other issues (PSOF {[f 8-13).

In June 2008, Plaintiff's supervisor, Assistant Chief Louis Sbarbro, filed a Complaint

Register with OPR, alleging that plaintiff had been unlawfully using the LEADS system to run

personal identifiers (PSOF { 24).> In August 2008, plaintiff was de-deputized and transferred to

3 Specifically, plaintiff is accused of running his own personal information, such as name and address, license

plate number, firearms owner identification card, and other identifiers, through the LEADS system, to see what the

search results looked like (PSOF { 27).

the Daley Center (PSOF 9 3, 5). Plaintiff continued to make complaints thereafter. In one of

those complaints, which he made in October 2008, Mr. Oesterlin contacted the media and the FBI

with allegations about on-the-job gambling at the Skokie Courthouse (PSOF 17). This assertion

first appeared in plaintiff's 56.1 fact statement in support of summary judgment; he did not make

that assertion in any of the three versions of the complaint he has filed. This is the only time that

Mr. Oesterlin has identified that he went outside the Sheriff's department with any complaint.

In August 2010, twenty-two months later, OPR Assistant Director Patrick Murphy

expanded the scope of the investigation into plaintiffs LEADS usage to include the time period

from June 2007 to June 2008 (PSOF 4 25). Specifically, defendants accused plaintiff of violating

the Cook County Illinois Court Services Department General Order 2600 and the Merit Board

Rules and Regulations by running eleven vanity license plates on June 21, 2007 and then running

his own personal information on the system at various times between 2007 and 2008 (PSOF {ff 27,

30).

Plaintiff appeared at a hearing before the Merit Board in June 2012. During the course of

the hearing, Commissioner Hogan denied plaintiff's request for discovery related to his arguments

about retaliation and disparate treatment (PSOF {| 44).° Based on the OPR investigation, defendant

Dart recommended to the Merit Board that plaintiff be terminated (PSOF 42, DSOF 4 5). In

September 2012, the Merit Board terminated plaintiff's employment effective December 27, 2010

(PSOF 4 35, DSOF 4 5).

4 The parties do not describe the circumstances leading to plaintiff being de-deputized and transferred. They

also offer no information about his title or job duties after the transfer.

5 Plaintiff variously describes the Commissioner’s denial of discovery as related to his claims of both

disparate treatment and lack of progressive discipline (in addition to his retaliation claim) (Compare Pl. Mem. in

Support of Summ. J., pg. 9 with PSOF 44). We interpret his argument to be that he was treated differently than his

co-workers by the fact of being denied progressive discipline (and instead being immediately recommended for

termination) for the LEADS violation.

Il.

Plaintiff offers three arguments in support of his motion for summary judgment: (1) the

Merit Board’s decision to terminate him and its subsequent decision not to review its decision after

remand are void because the Merit Board was not properly constituted; (2) plaintiff was denied

due process during the hearing before the Merit Board and in the proceedings leading up to it; and

(3) plaintiff has been denied equal protection pursuant to 42 U.S.C. § 1983. Plaintiff also argues

that he is entitled to reinstatement to his previous position, with backpay, as a proper remedy for

defendants’ alleged violations of his constitutional rights. In their motion for summary judgment,

defendants argue that: (1) the Equal Protection Clause does not support plaintiffs claim for

retaliation; (2) plaintiff fails to show that his complaints about his co-workers were protected

speech; (3) plaintiff has not shown a triable issue on his Monell claim; and (4) plaintiff's argument

regarding the constitution of the Merit Board and its decisions are not properly before the Court.

We will address each issue in turn, consolidating our analysis of the issues to the extent

they overlap. We will begin with the only claims plaintiff has actually pled: his Section 1983 claim

asserting violation of equal protection under a “class of one” theory and his Monell claim. We will

then address arguments raised in the summary judgment motions, but that have not been pled and

are not part of this case.

IV.

In his Section 1983 claim, plaintiff contends that defendants initiated the OPR investigation

related to his LEADS use in retaliation for his making complaints about workplace misconduct.

This action, says plaintiff, constituted “discrimination based on retaliation” in violation of Section

1983 and the Equal Protection Clause (Second Am. Cmplt. { 54). He further claims that

defendants’ actions were taken pursuant to a policy, and thus constituted a violation of Section

1983 under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978) (SAC {J 48, 49).

Plaintiff has not demonstrated that he is entitled to judgment as a matter of law, or that there is a

triable issue under either theory.

A.

“The equal protection clause of the Fourteenth Amendment protects individuals against

intentional, arbitrary discrimination by government officials.” Lauderdale v. Illinois Dep't of

Human Servs., 876 F.3d 904, 909-10 (7th Cir. 2017). We grant summary judgment for defendants

on plaintiff's equal protection claim because that clause does not support claims for retaliation

based on general allegations of discrimination unrelated to membership in a particular class. It is

undisputed that plaintiff does not identify any protected class, such as race, sex, or age, as the basis

for his claims of discrimination. Instead, he contends that he was discriminated against as a “class

of one” when defendants singled him out for discipline for his LEADS violations in retaliation for

making complaints about co-workers.

The “class of one” theory holds that a plaintiff may show an equal protection violation

where the state intentionally treats the plaintiff differently than others who are similarly situated,

and there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000). In Olech, the plaintiff stated a class of one equal protection claim by

asserting that the Village demanded that the plaintiff grant defendant a larger property easement

than it required of her neighbors to connect her property to the city’s main water line, in retaliation

for a previous lawsuit she had filed against the Village. Subsequent cases upholding a “class of

one” have similarly related to unfair “arms-length regulation” of a private citizen where there was

aclear, objective standard against which departures, even against a single plaintiff, could be readily

assessed. Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 602 (2008).

But Engquist made it clear that the “class of one” theory of equal protection does not extend

to the public employment context. 553 U.S. at 598. There is a difference, explained the Supreme

Court, between the power of the state regulate or license, as a lawmaker,’ and the government

acting as ‘proprietor, to manage [its] internal operation.’” Jd. The state has greater leeway when

regulating its employees than it does when enforcing regulations or laws against private citizens

at large. Decisions made in the employment context necessarily involve much greater discretion;

they are “often quite subjective and individualized, resting on a wide array of factors that are

difficult to articulate and quantify.” Engquist, 553 U.S. at 604.

Mr. Oesterlin’s allegations about defendants’ actions fall squarely within the public

employee context described in Engquist. His “class of one” arose from his being (in his view)

arbitrarily singled out for discipline for violating defendants’ LEADS policies. Moreover, he

contends that this singling out was a direct result of his complaining to his superiors about various

workplace violations committed by co-workers, and that employees who did not report workplace

violations were not disciplined. And, while plaintiff contends that defendants violated the LEADS

policy themselves by failing to conduct biennial audits of compliance, that allegation does not

change the fact that the actions about which plaintiff complains are purely employment decisions

made about him, a public employee. Indeed, plaintiff does not even respond to defendants’

argument that the “class of one” theory of equal protection does not apply to public employees.

All of the cases he cites in support of his equal protection claim (Pl. Mem. in Support of Summ. J.

at 4, 7) are distinguishable because they involve non-public employee plaintiffs. Plaintiff has

directed us to no cases that accept a “class of one” theory of equal protection in the employment

context, and — in the face of contrary controlling precedent — we decline to do so here.

B.

We also deny plaintiff’s motion for summary judgment to the extent he makes a claim

pursuant to Monell. That case held that a government entity may be held liable under Section 1983

when a governmental policy, custom or practice serves to deprive any citizen of the United States

of a constitutional right. In addition to showing that defendant has a widespread policy or practice,

a plaintiff must also prove that such policy was the “motivating force’ behind the alleged injury;

that is, there must be a causal link between the municipal action and the deprivation of federal

rights. Bonds v. City of Chicago, No 16-cv-5112, 2018 WL 1316720 at *2 (N.D.IL March 14,

2018), citing Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).

As we have explained, plaintiff has failed to show, in the first instance, a triable issue on

his Section 1983 class of one equal protection claim. Thus, plaintiff’s Moneil claim likewise fails

because plaintiff cannot prove that defendants have a policy or practice that served to deprive him

of his constitutional rights.° Plaintiff cites Bless v. Cook County Sheriff's Office, 13-cv-4271,

2016 WL 958554 at *7 (March 8, 2016) for the position that a single constitutional violation by

an individual with final policymaking authority (here, Defendant Dart) is enough to support a

Moneil claim. However, that citation does not address the central problem with his Monell claim:

the failure to show a triable issue that there was a constitutional violation, thus foreclosing him

from showing a link between a policy and a constitutional violation. Therefore, we deny plaintiff

summary judgment on his Moneil claim and grant defendants’ motion for summary judgment as a

matter of law.

6 Plaintiff also says that he suffered a constitutional violation by being denied “equal process” because

defendants failed to afford him progressive discipline for his LEADS violation (Pl. Resp. to Summ. J. at 11). Other

than stating generally that he was denied progressive discipline, plaintiff provides no evidence related to this claim

and thus we decline to address it further.

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V.

The Section 1983 class of one equal protection claim and the Monell claim are the only

claims pled in the Second Amended Complaint. Nevertheless, the parties have briefed three other

matters not found in the pleadings; (1) plaintiff's assertion that defendants retaliated against him

in violation of the First Amendment; (2) plaintiff's assertion that he was denied due process in the

Merit Board proceeding; and (3) plaintiff's assertion that the Merit Board proceeding terminating

him was void and that he therefore is entitled to judgment in his favor with an award of damages

and equitable relief. We explain below why none of these matters is properly before the Court in

this case.

A.

We begin with the assertion by plaintiff in his response to defendants’ motion for summary

judgment that his termination was in retaliation for the complaints he made, in violation of the

First Amendment. To allege a retaliation claim based on violation of the First Amendment,

plaintiff must allege that (1) he engaged in speech that was protected by the First Amendment, (2)

he sufferéd some 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. Kristofek

v. Village of Orland Hills, 832 F.3d 785, 792 (7th Cir. 2016). To determine whether a public

employee’s speech is entitled to First Amendment protection, courts consider whether the

employee spoke as a citizen on a matter of public concern and whether the employee’s interest in

commenting on the matter of public concern outweighs the public employer’s interest in promoting

effective and efficient public service. Kubiak v. City of Chicago, 810 F.3d 476, 482-83 (7th Cir.

2016). In his response to defendants’ motion for summary judgment, plaintiff argues that, by

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bringing his complaints about on-the-job gambling to the media, his complaints became a matter

of public concern (Pl. Resp. to Def. Motion for Summ. J. at 9).

None of the three versions of plaintiff’s complaint identifies any complaints or grievances

he aired outside of the Sheriff’s department. To the contrary, each iteration of the complaint alleges

only complaints or grievances brought within the Sheriff’s department. Internal grievances and

complaints about employment matters cannot form the basis for a First Amendment retaliation

claim. Forgue v. City of Chicago, 873 F.3d 962, 966 (7th Cir. 2017).

We recognize that in his summary judgment papers, plaintiff now identifies one occasion

in which he publicly aired a grievance: in October 2008, plaintiff went to the media with a report

about on-the-job gambling (PSOF { 17). However, plaintiff had multiple opportunities during the

course of this four-year-old lawsuit to include that allegation in one of the three versions of the

complaint he filed. The existence of this grievance is not some piece of evidence that was solely

in the control of the defendants and that plaintiff learned about only late in discovery. Plaintiff

knew the nature of the complaints he made and to whom he made them; he alleged internal

grievances with specificity (SAC {fff 32, 33). A plaintiff is the master of his pleadings Myles v.

United States, 416 F.3d 551, 552 (7th Cir. 2005), and here plaintiff chose not to plead the kind of

statement that could support a First Amendment claim. We decline to allow plaintiff to amend his

complaint by assertions in his summary judgment papers. Anderson v. Donahoe, 699 F.3d 989,

997 (7th Cir. 2012).

Finally, even if he had pled a First Amendment retaliation claim, the summary judgment

record would warrant entry of judgment for the defendants. Plaintiff has offered no evidence that

his October 2008 complaint to the media was a motivating factor either in the OPR investigation

or the Merit Board decision. He cites no evidence that the Merit Board members who approved

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the termination recommendation knew of that complaint. Moreover, it is undisputed that the OPR

investigation and the decision to de-deputize plaintiff and to transfer him to the Daley Center

occurred prior to the time he went to the media, and the expansion of the investigation to include

his LEADS usage in 2007 did not occur until 22 months afterwards. That time lapse undermines

the inference of “suspicious timing,” which in any event is not enough to create a triable issue; that

is, the logical fallacy of post hoc ergo propter hoc (after the fact, therefore, because of the fact)

does not alone create an inference of discrimination. Hall v. Forest River, Inc., 536 F3d 615, 622

(7th Cir. 2008) (the fact that one event follows another, without more, does not create an inference

of causation).

B.

Plaintiff argues that the Merit Board’s refusal to allow certain discovery deprived him of

the ability to bring defenses at the Merit Board that (1) being disciplined for the LEADS violation

was retaliatory and (2) he was deprived progressive discipline. However, because the district judge

has already dismissed plaintiff's freestanding procedural and substantive due process claims

asserted in counts I and II of the original complaint, they are not before us. Blickenstaff v. R.R.

Donnelley & Sons Co. Short-Term Disability Plan, No. 00-C-938, 2002 WL 169320 *3 (S.D.Ind.

January 28, 2002), citing T.W. by Enk v. Brophy, 124 F.3d 893, 897 (7th Cir. 1997).

The district judge denied the motion to dismiss the Section 1983 claim, citing plaintiff's

allegations that he was denied due process. But plaintiff reads far too much into that ruling, arguing

that the ruling constitutes a finding that the Merit Board in fact denied him due process (Pl. Mem.

in Support of Summ. J. at 9). A denial of a motion to dismiss is not an endorsement of the truth of

the allegations of a complaint, which are merely assumed to be true for the purposes of the motion.

Anicich v. Home Depot U.S.A., Inc., 852 F.3d 643, 646 (7th Cir. 2017). Instead, the district judge

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cited the due process allegations merely as a basis to allow the Section 1983 claim to stand, and

not a free-standing claim (indeed, to the extent the denial of discovery rose to the level of a due

process matter, that denial came not at the hands of defendants but from the Merit Board, which is

not a party). In any event, our determination that the Section 1983 claim fails as a matter of law

subsumes any claim that discovery rulings in the Merit Board proceeding violated due process.

Cc.

We conclude with an issue that the parties raise front and center in the summary judgment

briefing: the significance and effect of the Illinois Appellate Court decision in Taylor, concluding

that the Merit Board was improperly constituted. Plaintiff contends that, as a result, the Merit

Board’s decision to terminate him is void, and because of that, he is entitled outright to be

reinstated to his former position and awarded back pay (Pl. Mem. in Support of Summ. J. at 6).

Defendants argue that the Merit Board decision is not void, but merely voidable, and that plaintiff

has missed the deadline for filing a claim to have the Merit Board rehear his case. (Def. Resp. to

Pl. Mot. for Summ. J. at 4). We disagree with both arguments.

We do agree with plaintiff that in Taylor, the Appellate Court held that the Merit Board

decision in that particular case, which was made while the Board was improperly constituted, was

void. 81 N.E.3d at 8-9. The decisions in this district considering Taylor have reached that

conclusion as well. We have found only two federal cases discussing how to address decisions

made by an improperly constituted Merit Board in the wake of Taylor v. Dart; both agree that the

prior Merit Board decision is void, and that the remedy is for the unlawful decision to “be vacated

and remanded for a hearing before a legally constituted Merit Board.” Taylor, 81 N.E.3d at 9; see

also Starchvill v. Dart, 16 C 5713, 2018 WL 3456525, (N.D.IIl. July 18, 2018); Bless v. Cook

County Sheriff's Office, 13 C 4271, 2018 WL 3474507 (July 19, 2018). In Bless, the plaintiff's

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federal court complaint included a count brought under the Illinois Administrative Review Act,

735 Ill. Comp. State. Ann. 5/3-110, asking that the district court vacate the Merit Board’s decision

as void and reinstate the plaintiff with full back pay and benefits. The district court agreed that,

based on Taylor, the Merit Board decision was void. However, instead of reinstatement with back

pay, the Court followed Illinois Supreme Court precedent and remanded the case to the Merit

Board. Bless, 2018 WL 3474597 at *3, citing Vuagniaux v. Dep't of Prof Regulations, 802

N.E.2d 1156, 1166 (Ill. 2003).

After Bless was decided, a different panel of the Illinois Appellate Court than the one which

decided Taylor addressed the validity of another termination decision made by the same

improperly constituted Merit Board. In Lopez v. Dart, 2018 IL App (1st) 17-0733-U (August 29,

2018), the Appellate Court held that the improperly constituted Merit Board’s decision was valid

pursuant to the de facto officer doctrine, which the Taylor court had declined to apply. The de

facto officer doctrine “confers validity upon acts performed by a person acting under the color of

official title even though it is later discovered that the legality of that person’s appointment or

election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995). In declining to

follow Taylor and instead holding that the Merit Board’s decision was not void, the Lopez court

differentiated between the Taylor plaintiff, who was the first to raise the issue of the improper

constitution of the Merit Board, and all of the other plaintiffs who might seek to overturn their own

Merit Board decisions in light of Taylor.

Specifically, the Lopez court explained that the de facto officer doctrine strikes the proper

balance between “the public's interest in promoting the orderly functioning of government,” and

the public's interest in uncovering and exposing “illegal appointment procedures and thereby

ensuring administrative agencies comply with the statutory mandates which govern them.” citing

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Daniels v. Industrial Commission, 775 N.E.2d 936, 945 (Ill. 2002) (McMorrow, J., specially

concurring, joined by Freeman, J.). While the public’s interest in uncovering unlawful

appointments may predominate with the original plaintiff, the Daniels court reasoned that after the

injustice is uncovered, “the public interest in preserving the validity of a large multitude of [the

agency’s] decisions takes precedence. 775 N.E.2d at 945.

We express no views as to the impact of Taylor or Daniels on Mr. Oesterlin’s assertion

that the Merit Board’s decision was void. Plaintiff has pled no claim in this case based on the

constitution of the Merit Board, and as a court of limited jurisdiction, we are not at liberty to reach

out to decide matters not before us. We therefore deny plaintiff's motion for summary judgment

seeking reinstatement and backpay because of the wrongfully constituted Merit Board, and grant

defendants’ motion for summary judgment. Any relief plaintiff might seek because of the

constitution.of the Merit Board when it decided his matter must be addressed at the state level.

CONCLUSION

For the reasons stated above, we deny plaintiff’s motion for summary judgment (doc. # 84)

and grant defendants’ motion for summary judgment (doc. # 80). This case is terminated.

ENTER:

hed —

United States Magistrate Judge

DATED: September 10, 2018

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