stating, in 18 U.S.C. § 922(g)(1) case, that “Illinois would treat Lloyd as having been ‘convicted’ during the pendency of his probation” even though “defendant . . . may upon successful completion of probation (i.e. discharge and dismissal), have the conviction expunged”
How later courts described this case
- stating, in 18 U.S.C. § 922(g)(1) case, that “Illinois would treat Lloyd as having been ‘convicted’ during the pendency of his probation” even though “defendant . . . may upon successful completion of probation (i.e. discharge and dismissal), have the conviction expunged”
- disregarding denials that “although supported by admissible record evidence, do[] more than negate its opponent’s fact statement—that is, it is improper for a party to smuggle new facts into its response to a party’s L.R. 56.1 statement of fact”
- “In light of these significant intervening events, a jury could not reasonably accept Young–Gibson’s suspicious-timing argument.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN GNUTEK,
Plaintiff,
v. Case No. 17-cv-00808
ILLINOIS GAMING BOARD, MARK Judge Martha M. Pacold
OSTROWSKI, KAREN WEATHERS,
and VINCENT PATTARA
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff John Gnutek was formerly employed as a Gaming Senior Special
Agent at the Illinois Gaming Board (IGB) and was terminated in 2015. Gnutek
filed this wrongful termination case against the IGB and individual defendants
Mark Ostrowski, Karen Weathers, Isaiah D. Vega, Vincent Pattara, and Clinton C.
Cobb. Gnutek brought claims for retaliation in violation of Title VII (Count I),
retaliation in violation of the First Amendment and 42 U.S.C. § 1983 (Count II), and
violation of the Illinois Ethics Act (Count III).
The district court dismissed the Illinois Ethics Act claim (Count III) against
the IGB and individual defendants in their official capacities and denied the motion
to dismiss in all other respects. [21]. After discovery, Gnutek voluntarily dismissed
individual defendants Cobb and Vega. [31], [33].
The remaining defendants (the IGB and individual defendants Ostrowski,
Weathers, and Pattara) now seek summary judgment on the remaining claims.
[37]. For the reasons below, defendants’ motion is granted.
BACKGROUND
The following facts are undisputed unless otherwise noted and are taken
from the pleadings (to the extent the answer admits the allegations of the
complaint), the parties’ Local Rule 56.1 statements, and filings in prior cases in this
court and in the Central District of Illinois (to the extent raised by the parties and
either undisputed or proper for judicial notice). The facts are viewed in the light
most favorable to Gnutek, the nonmovant. Hotel 71 Mezz Lender LLC v. Nat’l Ret.
Fund, 778 F.3d 593, 603 (7th Cir. 2015).
I. Factual Allegations
A. The Parties
Plaintiff John Gnutek was formerly employed by defendant IGB as a Gaming
Senior Special Agent. [25] ¶ 5.1
The IGB is an Illinois state agency that enforces certain gaming laws in the
state, including by regulating riverboat gambling (casinos) and video gaming. Id.
¶ 6.
Gnutek began his employment with the IGB in 1999 as a Revenue Special
Agent Trainee. Id. ¶ 12. Throughout the course of his employment with the IGB,
he also held the following different positions: Revenue Special Agent, Revenue
Senior Special Agent, and ultimately Gaming Senior Special Agent. Id. (Gnutek
was initially employed by the Illinois Department of Revenue. At some point,
Gnutek, like a number of other employees of the Department of Revenue, was
reclassified as an employee of the IGB.)
As a Gaming Senior Special Agent, Gnutek “was an armed peace officer and
had daily interactions with members of the public while performing his
investigations and law enforcement duties, which included performing regulatory
tasks such as internal audits and investigations, coordinating surveillance,
monitoring employees and the public for illegal activities like card counting, making
arrests, performing criminal investigations of the staff and members of the public,
processing and booking arrestees, and appearing in court.” [42] at 6 ¶ 12.
All but one of the individual defendants were in Gnutek’s chain of command,
as follows:
At all relevant times, defendant Mark Ostrowski was the Administrator of
the IGB. Id. at 2–3 ¶ 4. (He has since left employment with the IGB. Id.)
Illinois State Police (ISP) Lt. Col. Isaiah D. Vega (former defendant who was
voluntarily dismissed) served as Deputy Administrator of Enforcement for the IGB
while employed by the ISP from April 2014 to June 2015; Vega reported to
Ostrowski. [25] at 3 ¶ 9.
Defendant Vincent Pattara worked for the IGB from 1990 until his
retirement in June 2016. [42] at 2 ¶ 3. From approximately 2012 through 2014,
Pattara worked as a docksite supervisor and then worked as an operations
1 Bracketed numbers refer to docket entries and are followed by the page or paragraph number.
Page numbers refer to the CM/ECF page number.
supervisor until he retired in 2016. Id. Pattara reported to Vega from April 2014 to
June 2015. [25] at 3 ¶ 10.
ISP Sgt. Clinton C. Cobb (former defendant who was voluntarily dismissed)
performed duties for the IGB while employed by the ISP beginning in 2010. Id. at 4
¶ 11. Cobb served as Acting Casino Enforcement Supervisor for the Hollywood
Casino in Joliet from August 2013 until the fall of 2016. Id. Cobb reported to
Pattara from April 29, 2014, to June 19, 2014. Gnutek directly reported to Cobb
“only from the time [Gnutek] returned from his suspension until his termination.”
Id.2
Karen Weathers—the only defendant not in Gnutek’s chain of command—
worked for the IGB as its equal employment opportunity officer from May 2011
through December 2016. [42] at 2 ¶ 2.
B. Gnutek’s Prior Lawsuits against the IGB
In support of the retaliation claims in this case, Gnutek relies on his
substantial prior litigation history, which involved both the IGB itself and at least
two of the current individual defendants and alleged corruption in IGB personnel
decisions. The litigation history is described in more detail below—but in short:
• As the prior judge described it, it is “a history of acrimonious litigation,”
involving three federal lawsuits (two in this district and one in the Central
District of Illinois), an appeal to the Seventh Circuit, and state court
litigation. [21] at 4.
• All of this litigation was against the IGB itself.
• At least two of the current individual defendants were also involved: One of
the current individual defendants, Ostrowski (the IGB Administrator), was
named as a defendant in one of the cases, and another current individual
defendant, Pattara, was involved in the underlying events that were the
subject of litigation.
• The prior federal lawsuits involved allegations (or proposed allegations) of
corruption in IGB personnel decisions, as well as allegations of retaliation by
the IGB and its personnel for protected activity.
The specific lawsuits are as follows:
2 The parties do not clarify exactly what time period this refers to.
1. Gnutek I
On June 30, 2006, Gnutek filed a lawsuit against the IGB in the Northern
District of Illinois, alleging retaliation under Title VII. (Gnutek v. IGB, No. 06-cv-
3561 (N.D. Ill.) (“Gnutek I”)). [42] at 3 ¶ 5. Specifically, Gnutek alleged that,
because in 2004 he had complained of gender discrimination, he had not received a
position posted in 2005 for which he was the most qualified candidate. [38-6] at 5–
7. The position was enforcement operations supervisor.
The Seventh Circuit described Gnutek I as follows (in connection with a later
retaliation case by Thomas Hobgood, another IGB employee who assisted Gnutek
with the litigation): “After he had worked at the Gaming Board for a couple of years,
Hobgood applied to become an enforcement operations supervisor. Many others,
including Gnutek (who worked then for the enforcement division of the Board), also
sought the position. From this pool of applicants the Board selected Mark Stevens,
a master sergeant with the Illinois State Police, in 2005. Some employees felt that
Stevens’s selection reflected the Gaming Board’s favoritism toward the State Police.
Gnutek thought the selection process was unlawful. He sued the Gaming Board the
following year, alleging that it denied him the position of enforcement operations
supervisor in retaliation for an earlier gender bias suit.” Hobgood v. Illinois
Gaming Bd., 731 F.3d 635, 637–38 (7th Cir. 2013).
As originally filed on June 30, 2006, the Gnutek I complaint included only a
Title VII retaliation claim and named only the IGB. However, on November 3,
2006, Gnutek moved to file an amended complaint. The proposed amended
complaint added a second count under RICO against two new defendants, William
Cellini (a prominent business person) and Alonzo Monk (deputy campaign manager
to then-Governor Rod Blagojevich and former Deputy Chief of Staff to Blagojevich).
[42] at 3 ¶ 5; [38-6]. The proposed RICO claim alleged among other things that
Blagojevich, in exchange for financial and political support, allowed Cellini control
over ISP and IGB personnel decisions and placements on the Board of the Teachers
Retirement System, and that Monk and Blagojevich were both instrumental in
following through on these agreements. [38-6].
On November 16, 2006, the district court denied Gnutek’s motion to amend to
add the RICO count against Cellini and Monk. Gnutek I, No. 06-cv-3561 (N.D. Ill.),
Dkt. 21.
Gnutek then voluntarily dismissed the case (Gnutek I, in the Northern
District of Illinois) on December 20, 2006 (Gnutek I, No. 06-cv-3561 (N.D. Ill.), Dkt.
22)—but shortly afterward, on December 29, 2006, refiled the RICO claim as a
freestanding lawsuit in the Central District of Illinois (Gnutek II, discussed below).
[42] at 3–4 ¶¶ 5–6.
None of the individual defendants in the current action was named in Gnutek
I or otherwise identified in the complaint or the proposed amended complaint.
Nonetheless, Gnutek contends that while the proposed amended complaint did not
specifically reference the individual defendants named in this case, the proposed
amended complaint not only concerned Gnutek’s specific situation but also alleged
improper control by Cellini over IGB personnel decisions (in exchange for Cellini’s
financial and political support for Blagojevich), that Gnutek’s RICO lawsuit
(proposed in Gnutek I and filed in Gnutek II) received substantial publicity, and
that the Gnutek/Hobgood litigation (discussed below) focused largely on why the
IGB would have a motive to retaliate against Gnutek (and his colleague Hobgood).
[42] at 3–4 ¶ 6.
2. Gnutek II
As noted above, on December 29, 2006, Gnutek filed a second lawsuit in the
Central District of Illinois, Gnutek v. Cellini, 07-cv-2109 (C.D. Ill.) (“Gnutek II”).
[42] at 3 ¶ 6. This lawsuit alleged the RICO claim against Cellini and Monk that
Gnutek had unsuccessfully sought to add in Gnutek I. Id. As discussed above, none
of the defendants in the current action were named as defendants in Gnutek II, but
Gnutek contends that regardless, given the nature of the allegations, the lawsuit
gave the IGB and its personnel a retaliatory motive. Id.
Gnutek voluntarily dismissed Gnutek II on July 10, 2014. Id.3
3. Gnutek/Hobgood
On March 18, 2008, the IGB brought four written charges against Gnutek
and sought his discharge. [38-11]. The four charges were: “(1) receiving, removing,
and releasing official and confidential IGB background files on the director of the
Illinois State Police and an Official Action Request form for an ISP employee for
non-work purposes; (2) failing to report that other IGB employees had the same
documents; (3) attempting to access Pattara’s emails without authorization; and
(4) conducting three unauthorized audits and failing to submit required reports to
his supervisor.” [42] at 4 ¶ 7.
On March 28, 2008, the Illinois Department of Central Management Services
(CMS) approved the charges (thereby approving Gnutek’s discharge), and Gnutek
was discharged. [38] at 3 ¶ 7; [38-11]; [42] at 4 ¶ 7. CMS is a state agency that
enforces the personnel code and rules for state employees, including processing
many personnel issues for the other agencies of the state. [42] at 9–10 ¶ 25.
Agencies like the IGB typically make a decision to discipline or discharge an
employee and send a request for that discipline to CMS for approval. Id. An agency
3 The parties do not provide context for why this occurred. [42] at 3–4 ¶ 6.
cannot discharge an employee without CMS approval. Id. An employee may appeal
CMS’s decision to the Illinois Civil Service Commission.
Gnutek disputed the charges and appealed his termination to the Illinois
Civil Service Commission. [42] at 4–5 ¶¶ 7–8; [38-12]. On March 20, 2009, the Civil
Service Commission, in a 3-2 decision, found that the written charges against
Gnutek for discharge approved by CMS “ha[d] been proven,” but also concluded that
“given Gnutek’s previous performance record that he exceeded expectations as a
Revenue Senior Special Agent, lack of substantial prior discipline, and the absence
of any evidence that Gnutek gained an advantage for his actions, the unique factual
circumstances surrounding the discharge do not rise to the level which sound public
opinion recognizes as good cause for the employee to no longer hold the position.”
[42] at 5 ¶ 8; [38-12] at 2. The Commission decided that the proven charges
warranted a 90-day suspension in lieu of discharge. [38-12] at 3.4
Gnutek litigated the suspension (the Commission’s decision) in the Circuit
Court of Will County and the Illinois Appellate Court throughout 2010 and 2011.
[42] at 5 ¶ 9.
Meanwhile and relatedly, on September 19, 2008, Gnutek and another IGB
employee, Thomas Hobgood, filed in the Northern District of Illinois a lawsuit
against the IGB, the Illinois Department of Revenue (IDOR), and six individuals,
including Ostrowski (Gnutek and Hobgood v. IGB et al, No. 1:08-cv-05516 (N.D. Ill.)
(“Gnutek/Hobgood”). [42] at 5 ¶ 10; [38-14].5 Gnutek brought a First Amendment
retaliation claim against Ostrowski and four other individuals, alleging that on
November 3, 2006, he filed his proposed amended complaint (in Gnutek I) alleging
corruption at the highest levels of the state government, that in December 2006 he
spoke out publicly against corruption within the State of Illinois and within the
IGB, and that in retaliation, in December 2006, he was subjected to an unwarranted
and abusive investigation, in the fall of 2007 he was suspended from his
employment with the IDOR and the IGB, and that on or about March 27, 2008, his
employment with the IDOR and the IGB was terminated. Gnutek / Hobgood, No.
1:08-cv-05516, Dkt. 1. Hobgood brought a Title VII retaliation claim against IGB
and IDOR and a First Amendment retaliation claim against Ostrowski and four
other individuals, alleging that Hobgood assisted Gnutek with Gnutek I and the
proposed amended complaint, and in retaliation, Hobgood was investigated,
suspended, and discharged.
4 The Commission “did not find the respondent [Gnutek] to be a credible witness given his somewhat
incredulous explanations for his actions and the inconsistencies in his testimony with that of other
credible witnesses.” [38-12] at 3. Also, the two dissenting commissioners believed that Gnutek’s
actions warranted discharge from his position with the State. [38-12] at 4.
5 As noted above, defendant Ostrowski was one of the individuals named as defendants in
Gnutek/Hobgood. [38-14]. Other than Ostrowski, none of the other individual defendants in
Gnutek/Hobgood are parties to this suit.
The district court granted summary judgment for the defendants in
Gnutek/Hobgood. Both Gnutek and Hobgood appealed to the Seventh Circuit. [42]
at 5 ¶ 10.
While the appeal was pending, Gnutek settled his claims in
Gnutek/Hobgood. On February 17, 2012, the Seventh Circuit dismissed Gnutek’s
appeal. Id.; [38-15] at 21. Gnutek returned to work at the IGB on February 16,
2012. [42] at 6 ¶ 11.
As to Hobgood, the Seventh Circuit reversed the summary judgment decision
and remanded the case for trial. Hobgood v. Illinois Gaming Bd., 731 F.3d 635,
644–48 (7th Cir. 2013). The Seventh Circuit reviewed the evidence Hobgood had
presented and explained: “When viewed as a comprehensive whole, Hobgood's
evidence easily supports a reasonable inference that he was the victim of a
retaliatory witch hunt.” Id. at 644. The Seventh Circuit concluded that there was a
genuine dispute on whether defendants’ stated reasons for discharging Hobgood
were pretextual: “Taken together, [Hobgood’s] evidence creates a genuine dispute
about the sincerity of the Gaming Board’s belief—in other words, whether the
Gaming Board’s stated reasons for taking action against Hobgood were pretexts.
. . . When properly construed in Hobgood’s favor, the evidence could support a jury
finding that the defendants fixated on firing him, ignored evidence of his innocence,
and circumvented investigatory safeguards to pursue a set of baseless charges
because he had helped Gnutek sue the Gaming Board.” Id. at 647–48.
On remand, Hobgood settled his claims before trial. [38-15] at 23.
C. Traffic Incident and Illinois State Court Proceedings
Turning to the incident precipitating the current lawsuit: On May 31, 2014,
Gnutek was involved in an altercation with the driver of a pickup truck and trailer.
[42] at 6 ¶ 13. Gnutek does not dispute that he was involved in an altercation with
the truck’s driver. Id.; [43] at 11.
Gnutek and the truck’s driver both went to the Palos Heights Police
Department on May 31, 2014 (shortly after the incident), Gnutek was arrested and
charged with battery, the Palos Heights Police Department generated a police
report shortly after the May 31, 2014, incident, and Gnutek was tried in a bench
trial in state court on November 6, 2014.
Gnutek does not dispute that defendants saw the police report (generated
shortly after the May 31, 2014, incident) and the transcript of the subsequent
November 6, 2014, state court proceedings (bench trial) relatively soon after these
events (the altercation and police report, and the bench trial) occurred.
Both the police report and the bench trial transcript are relevant to
defendants’ knowledge and motives, so for those reasons they are included in this
discussion of the facts.
According to the police report (see [42] at 6–8 ¶¶ 13–16; [38-18] (police report
and complaint)):
At the time (May 31, 2014), Gnutek was a passenger in his car, which was
being driven by his teenage son. According to Gnutek, as Gnutek’s son passed the
truck, the truck’s driver threw a beer bottle at Gnutek’s car, breaking his taillight.
Both cars stopped in the road, and Gnutek exited his car and approached the
driver’s side of the truck. An altercation occurred, and Gnutek left the scene.
Gnutek went to the Palos Heights Police Department to report the incident,
including the damage to his car and the physical altercation. Gnutek informed the
police that after he exited the car, he approached the driver’s side window of the
truck to ask about information for repairing his taillight. Gnutek said that as he
was approaching, the truck’s driver, while still seated in the truck, punched Gnutek
in the face unprovoked through the open window, and when Gnutek tried to push
the driver away, the driver bit Gnutek’s hand. Gnutek said that he did not strike
the driver.
The truck’s driver also went to the Palos Heights Police Department and told
a different version of events. The driver had sustained injuries to his face and
chest; after seeing the injuries, the reporting police officer called for an ambulance.
The driver reported that he did not throw anything at Gnutek’s car; after passing
the truck, the passenger door of Gnutek’s car started opening while the car was
moving; Gnutek’s car eventually stopped in the road; the truck’s driver stopped too;
and after the vehicles stopped, Gnutek walked to the truck’s driver’s window,
pushed it down as the driver was trying to roll it up, and began punching the driver
in the face and chest. The reporting police officer noted that the injuries on
Gnutek’s hands appeared consistent with punching someone or something. Gnutek
maintained that he did not hit the driver and that the blood on the driver’s clothes
must have been from the driver’s bite to Gnutek’s hand.
Gnutek was arrested and charged with battery. [42] at 8 ¶ 16. The police
report attached photos of Gnutek’s hand injury, the truck’s driver’s injuries, and the
reported light damage to Gnutek’s car. [38-18] at 5, 7–12.
Defendants summarize the police report in their statement of facts, [42] at 6–
8 ¶¶ 13–16; in response, Gnutek either agrees without qualification, or in some
instances, while he agrees that defendants’ statements accurately summarize the
police report, he states that his “version of events is different” and that to the extent
defendants rely on the police report for the truth of the matter asserted, the report
is hearsay, [42] at 7–8 ¶ 15. However, Gnutek does not offer a different version of
events in his Local Rule 56.1 statement of additional facts. In any event, as noted
above, the police report is relevant to defendants’ knowledge and motives, not for
the truth of the matter asserted; thus under Fed. R. Evid. 801(c)(2), the report is not
hearsay, and it may be considered at summary judgment.
The same day he was arrested (May 31, 2014, a Saturday), Gnutek called his
direct supervisor at the IGB, Cobb (former defendant who was voluntarily
dismissed), and informed him of the arrest. [42] at 8 ¶ 17. Cobb informed his
supervisor, defendant Pattara, of Gnutek’s arrest. Id. Pattara, in turn, notified his
supervisors, defendants Ostrowski and Vega (former defendant who was voluntarily
dismissed). Id. at 8 ¶ 18. Gnutek was placed on administrative leave on June 2,
2014. Id. at 8 ¶ 20.
On November 6, 2014, at a bench trial in Illinois state court, Gnutek was
found guilty of battery, a Class A misdemeanor. Id. at 9 ¶ 21; [38-20] at 133-38
(bench trial transcript).
The judge specifically explained: “the police officer . . . may be the only person
in the courtroom who told the exact truth.” [38-20] at 134. The defendant is “a
professional man, a very big strong man, who certainly could inflict bodily harm on
somebody with a punch.” [38-20] at 134. The judge found that “[w]hat this comes
down to is credibility” because Gnutek and the victim offered different accounts.
[38-20] at 134. The judge found that “if in fact what I saw is correct that something
did get thrown at the car [Gnutek’s car], Mr. Gnutek hit this person he thought was
responsible twice. I think that’s what happened.” [38-20] at 135–36. The judge
found that aspects of Gnutek’s account were “incredible to me.” [38-20] at 136. The
judge said, “[w]hat I think happened here was that after it happened that Mr.
Gnutek realized, being an officer of the law based on the way I understand this or at
least somebody who identifies himself as an officer of the law, that he made a
mistake . . . .” [38-20] at 136. The judge explained, “I don’t know whether or not the
victim provoked this. Maybe he did. Maybe he didn’t. But this is so typical of
people who get involved in these arguments on the street and extract a little street
justice.” [38-20] at 136. As to Gnutek’s version, the judge found:
[T]hat he [the victim] would sit in his vehicle and throw a punch at a
guy this size [Gnutek] is incredible to me. He [Gnutek] could have
dragged him [the victim] out of the car and beat the hell out of him. The
victim in the case appears to be in his 60s. The defendant is over six
feet, is in great shape and looks like he weighs about 250 pounds.
Nobody in your right mind would take a swing at this guy while you are
sitting down. You can’t generate speed when you are sitting down.
The idea that he [Gnutek] was looking down and he got punched in the
face is not credible to me either. He had no business going back to that
[the victim’s] car. He is a law enforcement official. Somebody does
something wrong he calls the police. But for 30 seconds he lost control.
For that reason he is going to be found guilty on the charge of battery.
[38-20] at 137–38.
After the finding of guilty, the court said, “Both of you come up here,” and
had an off-the-record conversation with those people; the record does not say who
“[b]oth of you” was—the attorneys, Gnutek and the victim, all of them, or some of
them. [50] at 2 ¶ 5; [38-20] at 138.
After the off-the-record conversation, the court went back on the record and
explained that the case was going to be continued for a period of 90 days, at which
point the judge would consider a motion to vacate the guilty finding. [50] at 2 ¶ 6;
[38-20] at 138–39. The judge advised Gnutek that he needed to get a couple of
things completed, advised him to do what his attorney instructed him to do, and
said that “in three months we will see where you are.” [50] ¶ 7; [38-20] at 139.
Gnutek was required to go to counseling, pay the truck driver’s medical expenses,
and, if he did so, no conviction would be entered. [50] ¶ 3.
After the bench trial, Gnutek immediately contacted the IGB and advised the
IGB that the judge “ruled that Gnutek was guilty of battery,” but the judge “made
some type of deferred adjudication under law that Gnutek can’t explain because he’s
not a lawyer. As such, the guilty was [sic] verdict was stayed. Gnutek was ordered
to go to the Union Employee Assistance Program for anger management counseling.
Gnutek was ordered to pay [the truck’s driver] insurance co-pay and for his time off
of work in the amount of $2,000.00. The case was continued to March 11, 2015
under the condition that if Gnutek completes the counseling and pays the amount
ordered the case will be dismissed. No finding of guilty will be entered.” [50] ¶ 3;
[42-1] at 71. This information was sent by email to Weathers, Pattara, and
Ostrowski. [42-1] at 70–71.
The IGB obtained a transcript of the bench trial. [42] at 9 ¶ 22.
D. Disciplinary Proceedings and Discharge
As noted above, Gnutek was placed on administrative leave on June 2, 2014.
[42] at 8 ¶ 20; [50] at 1 ¶ 1. (This was shortly after the May 31, 2014, incident.)
On January 9, 2015 (after the November 6, 2014 bench trial), the IGB issued
a memorandum to Gnutek that “[d]iscipline is being contemplated for the following”
(i.e., included initial charges):
On Saturday, May 31, 2014, you notified Trooper Charles Cobb that you
were arrested for Battery by the Palos Police Department, due to a
physical altercation with another individual . . . . On November 6, 2014,
you appeared before Judge Michael J. Kane, and was [sic] found guilty
of Battery, a Class A Misdemeanor.” [38-23] at 2.
Your conduct towards [the individual] and the conviction of Battery
constitutes [sic] violations of the Illinois Gaming Board Employee
Handbook dated July 1, 2009, Chapter 4: Rules of Conduct, Conduct
Unbecoming an Employee and Convictions.
[38-23] at 2.
The memorandum attached the Rules of Conduct (Chapter 4 of the IGB
Employee Handbook). [38-23] at 3–5.
The Rules of Conduct contain two relevant provisions, “Convictions” and
“Conduct unbecoming an employee.” [38-23] at 4. To provide complete context for
these provisions, the court quotes them in full, emphasizing key portions:
Convictions
You must immediately notify the Deputy Administrator for the
Administrative Services Division when a conviction you incur following
your starting date of employment with the department results in
probation, a jail term, or the suspension or revocation of your driver’s
license. The requirement to notify the Deputy Administrator of
Administrative Services also applies to any offense (other than a minor
traffic violation) that results in a fine or restitution of $100 or more,
excluding court costs, and other amounts added to the fine. For purposes
of this section, “convictions” include all misdemeanors and felonies
committed as an adult for which you plead guilty, are found guilty, are
convicted, or agreed to an alternative sentencing program or pretrial
diversion program which required an admission, stipulation or finding
of guilt, including court supervision and/or probation. “Minor traffic
violation” means any offense for which the range of possible penalties
includes a fine only.
If a connection exists between your conviction or punishment and your
job duties, responsibilities, or fitness for duty, and you fail to comply
with the notification requirement set forth above, you may be subject to
disciplinary action, up to and including discharge.
Conduct unbecoming an employee
All contact with fellow employees and the public must be conducted in a
manner that will not discredit the background, character, or integrity of
any individual and will not cause discord with the public or fellow
employees, disrupt official business, or endanger public safety.
“Conduct unbecoming” an employee includes that which tends to bring
the agency into disrepute or reflects discredit upon him or her as a
member of the agency or that tends to impair the operation, efficiency, or
integrity of the agency or the employee.
[38-23] at 4 (italics added).
The January 9, 2015, memorandum notified Gnutek that a pre-disciplinary
meeting had been set for January 14, 2015. [38-23] at 2.
On January 14, 2015, the IGB held the pre-disciplinary meeting. [42] at 12
¶ 32.
On approximately January 28, 2015, Gnutek submitted a written rebuttal.
[42-1] at 68–69 (Gnutek contends, and defendants do not dispute, that the
document was received on January 23, even though it was dated January 28, [50] at
3 ¶ 11; the exact date is immaterial). The written rebuttal made the following
points in response to each of the two charges:
• On the charge of conduct unbecoming an officer, Gnutek contended that “he
did not batter [the truck’s driver] and that, while there was a confrontation,
Mr. Gnutek was defending himself. Mr. Gnutek points directly to his
testimony in the criminal proceeding. Mr. Gnutek states that it occurred
exactly as is outlined in his testimony . . . . Mr. Gnutek paid Mr. Pruim
$2,000 in restitution, completed anger management counseling and traffic
school.” [42-1] at 68.
• On the charge of being convicted, Gnutek contended: “Mr. Gnutek’s view is
that he has not been convicted. 730 ILCS 5/5-1-12 provides that a criminal
judgment occurs when there is a finding of guilt and a sentence has been
pronounced by the court. An annotated version of this provision of the
Illinois Criminal Code is attached as Exhibit 1. The transcript makes it clear
that the criminal case has been continued to March 11, 2015. As such,
Gnutek doesn’t believe that he has been convicted of anything. The case was
continued for a final ruling on a finding of conviction. Gnutek argues that he
should be placed on suspension pending judicial verdict pursuant to 80 Ill.
Admin. Code 302.785. That allows for Gnutek to be suspended, without pay,
“pending a final court determination of innocence or guilt.” [42-1] at 68.
On January 28, 2015, Gnutek wrote to Weathers to ensure that she had
received his response. [50] at 4 ¶ 13. Weathers acknowledged that she had and
indicated that Gnutek would remain on administrative leave “until the IGB
determines what discipline will be imposed.” [50] at 4 ¶ 13.
On February 2, 2015, Ostrowski sent Gnutek a letter (1) as a result of the
pre-disciplinary meeting, suspending Gnutek without pay for up to 30 days pending
the decision to discharge, effective Friday, February 27, 2015; (2) attaching the final
charges that served as the basis of the action—the same charges of conduct
unbecoming an employee and conviction, [42-1] at 64; and (3) stating that Gnutek
would be notified in writing as to the decision concerning final disciplinary action.
[42-1] at 63–64; see also [50] at 4 ¶ 14; [42] at 13 ¶ 34; [38-23] at 6.
Although the letter attaching the charges is dated February 2, 2015, [42-1] at
63, the attached charges give the date of the suspension pending discharge as
February 3, 2015, [42-1] at 64.
Within weeks, CMS approved the charges, and the discharge was effective.
Specifically, according to CMS’s documentation (the CMS Notice of the
Approval of Written Charges by the Director of Central Management Services): The
IGB’s written charges seeking Gnutek’s discharge were dated February 3, 2015, and
CMS approved those charges (and thus Gnutek’s discharge) on February 20, 2015.
[38-24] at 2.
Gnutek’s termination was effective February 27, 2015. [50] ¶ 23.
On April 29, 2015, the Illinois state court entered an order finding Gnutek
not guilty on the battery charge. Id. ¶ 24.
Besides the sequence of events above, one aspect of the disciplinary process
that the parties discuss is CMS’s role in the process. The court discusses this issue
in detail in the analysis below and ultimately concludes (for reasons explained
below) that any dispute as to CMS’s role raises no genuine dispute about pretext.
II. Procedural History
Gnutek filed this suit on January 31, 2017. [1]. He alleged claims for
retaliation in violation of Title VII against IGB (Count I), id. at 6; retaliation in
violation of the First Amendment and 42 U.S.C. § 1983 against the individual
defendants, Mark Ostrowski, Karen Weathers, Isaiah Vega, Vincent Pattara, and
Clinton Cobb (Count II), id. at 7; and violation of the Illinois Ethics Act as to the
IGB and the individual defendants (Count III), id. at 9. (Gnutek named all
individual defendants in their individual capacities, and also named individual
defendants Ostrowski and Cobb in their official capacities for the purpose of seeking
injunctive relief.)
Defendants moved to dismiss. [16]. The court granted the motion to dismiss
as to Gnutek’s claim for violation of the Illinois Ethics Act (Count III) against the
IGB and individual defendants in their official capacities and denied the motion in
all other respects (including, for Count III, the individual defendants in their
individual capacities). [21]. Later, Gnutek voluntarily dismissed defendants Cobb
and Vega. [31], [33].
The remaining defendants now seek summary judgment on the remaining
claims. [37]. For the reasons below, defendants’ motion is granted.
Thus, the remaining claims and defendants are as follows:
1. Count I, Title VII retaliation against the IGB;
2. Count II, First Amendment retaliation against Ostrowski, Weathers, and
Pattara in their individual capacities (and against Ostrowski in his official
capacity for the limited purpose of equitable relief); and
3. Count III, violation of the Illinois Ethics Act as to Ostrowski, Weathers,
and Pattara in their individual capacities.
Defendants moved for summary judgment. [37]. The case was reassigned to
this judge. [54].
DISCUSSION
I. Legal Standard
Summary judgment is proper where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). A genuine dispute as to any material fact exists if “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). The substantive law controls which
facts are material. Id.
The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex, 477 U.S. at 323.
After a “properly supported motion for summary judgment is made, the adverse
party must set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250 (citation, internal quotation marks, and footnotes
omitted). Construing the evidence and facts supported by the record in favor of the
nonmoving party, the court gives the nonmoving party “the benefit of reasonable
inferences from the evidence, but not speculative inferences in [the party’s] favor.”
White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016) (citations omitted). “The
controlling question is whether a reasonable trier of fact could find in favor of the
non-moving party on the evidence submitted in support of and opposition to the
motion for summary judgment.” Id. (citation omitted).
II. Analysis
A. Local Rule 56.1
Defendants’ reply argues that plaintiff’s response to defendants’ Local Rule
56.1 statement fails to comply with Local Rule 56.1 because it contains numerous
unsupported and extraneous factual assertions. [51] at 1–2. Defendants ask the
court to disregard paragraphs 6, 7, 10, 26, 27, 29, and 36 of plaintiff’s response to
defendants’ Local Rule 56.1 statement for failure to comply with Local Rule 56.1.
Id. at 2. Additionally, defendants point out that plaintiff’s response brief fails to
comply with the local rules because it is 22 pages long and plaintiff did not seek
leave of court to file an oversized brief. Id. at 2–3. Defendants also point out that
plaintiff’s brief on pages 3, 4, 5, 6, 16, 17, 20, and 21 cites evidence that is not
contained in the record. Id. at 3. Specifically, defendants allege that plaintiff
makes factual assertions based on deposition testimony in the Gnutek/Hobgood
lawsuit and that those factual assertions are not properly set forth in either side’s
Local Rule 56.1 statements. Id. Defendants ask that this court disregard all of
plaintiff’s factual assertions that do not comply with Local Rule 56.1. Id.
Local Rule 56.1(b) requires that a party opposing a motion for summary
judgment serve and file “a concise response to the movant’s statement” containing
“a response to each numbered paragraph in the moving party’s statement,
including, in the case of any disagreement, specific references to the affidavits,
parts of the record, and other supporting materials relied upon.”6
Additionally, a party opposing summary judgment must file “a statement,
consisting of short numbered paragraphs, of any additional facts that require the
denial of summary judgment, including references to the affidavits, parts of the
record, and other supporting materials relied upon. Absent prior leave of Court, a
respondent to a summary judgment motion shall not file more than 40 separately-
6 Local Rule 56.1 was amended in February 2021, after the parties briefed the motion for
summary judgment. The court has applied the version of the Local Rule in effect when the
parties filed their briefs.
numbered statements of additional facts. All material facts set forth in the
statement required of the moving party will be deemed to be admitted unless
controverted by the statement of the opposing party.” Local Rule 56.1(b)(3)(C).
“A district court is entitled to demand strict compliance with such rules for
responding to a motion for summary judgment . . . a court does not abuse its
discretion when it opts to disregard facts presented in a manner inconsistent with
the rules.” Fabriko Acquisition v. Prokos, 536 F.3d 605, 607–08 (7th Cir. 2008).
“When a nonmovant fails to adhere to Local Rule 56.1(b), the Court may admit the
movant’s Rule 56.1 Statement and disregard the nonmovant’s submissions.”
Prewitt v. United States, Nos. 10 C 102, 11 C 3136, 2012 WL 5381281, at *1 (N.D.
Ill. Oct. 31, 2012).
Local Rule 7.1 states: “Neither a brief in support of or in opposition to any
motion nor objections to a report and recommendation or order of a magistrate
judge or special master shall exceed 15 pages without prior approval of the court.”
Gnutek’s summary judgment briefing, [42], [43], does not comply with the
local rules. First, some responses appear to contest defendants’ statements but do
not contain specific or adequate references to the record for supporting material,
preventing the court from locating in the record any supporting material Gnutek
may have intended to cite. See [42] ¶¶ 15, 37. Second and relatedly, some
responses contain additional facts or arguments that would more appropriately
have been included in Gnutek’s statement of additional facts or summary judgment
brief. See, e.g., id. ¶¶ 5, 6, 10, 26, 27, 29, 30, 36. “It is inappropriate for a non-
movant to include additional facts, meaning facts extraneous to the substance of the
paragraph to which the non-movant is responding, in a Local Rule 56.1(b)(3)(B)
response.” Johnson v. Cnty. of Cook, Nos. 08 C 2138, 08 C 3648, 2012 WL 2905485,
at *12 (N.D. Ill. July 16, 2012).
For example, in ¶ 6, defendants recite the procedural history of the Gnutek II
litigation. That paragraph asserts that Gnutek filed Gnutek II on December 29,
2006, that he reasserted RICO allegations from Gnutek I against the same
defendants, that Gnutek amended his complaint, that none of the current
defendants were named in Gnutek II, and that plaintiff voluntarily dismissed the
case. [42] at 3 ¶ 6. None of these assertions appear particularly difficult to admit or
deny. However, instead of admitting or denying these allegations, Gnutek’s
response to ¶ 6 spans three paragraphs and contains additional factual allegations
regarding the Gnutek/Hobgood litigation. At one point, Gnutek states that “[t]o
understand the significance of Gnutek’s RICO claims one can review the deposition
testimony” of a witness in one of Gnutek’s previous lawsuits. Id. ¶ 6. He then cites
to 14 pages of deposition testimony from the Gnutek/Hobgood litigation without
specifying what exactly in that deposition testimony controverts the defendants’
factual assertions in this paragraph. Id. This paragraph is an example of a
response that does not conform to Local Rule 56.1.
Gnutek seems to suggest that he could not have complied with this court’s
local rules because defendants are mischaracterizing the record. Also, in his
response to ¶ 6, he says that “there is a lot of context missing [from defendants’
allegations]” and that “[t]his statement of fact highlights the difficulties associated
with attempting to comply with the requirements of Local Rule 56.1(b)(3) that
factual assertions be brief and straight forward [sic].” Id. ¶ 6. However, there is no
reason why Gnutek could not have included these additional statements of fact in
his own Local Rule 56.1 statement or elaborated in the briefing on how defendants
have allegedly mischaracterized the record. There is also no reason why he could
not competently dispute many of defendants’ statement of facts with adequate
citations to the record.
Third, Gnutek’s response brief [43] is also oversized at 22 pages. Plaintiff did
not seek leave of court to file an oversized brief. Additionally, as the court will
discuss more in detail where appropriate, there are portions of the brief that cite
facts not included in either side’s Local Rule 56.1 statement. “Under settled law,
facts asserted in a brief but not presented in a Local Rule 56.1 statement are
disregarded in resolving a summary judgment motion.” Perez v. Town of Cicero, No.
06 C 4981, 2011 WL 4626034, at *2 (N.D. Ill. Sep. 30, 2011).
Gnutek’s Local Rule 56.1 responses also copied and pasted the defendants’
statement of fact but inexplicably omitted the defendants’ citations to the record
that the defendants had included in their statement. Compare [38] with [42].
While this does not explicitly violate the local rules, it has made reviewing Gnutek’s
response to the defendants’ Local Rule 56.1 statement unnecessarily cumbersome.
“It is simply not a district judge’s job in summary judgment cases to sift
through the record and make the case for a party.” Hunt ex Rel. Chiovari v. Dart,
754 F. Supp. 2d 962, 980 (N.D. Ill. 2010). Thus, “where a party improperly denies a
statement of fact by failing to provide adequate or proper record support for the
denial,” the court could “deem[ ] that statement of fact to be admitted.” Greene v.
CCDN, LLC, 853 F. Supp. 2d 739, 744 (N.D. Ill. 2011). The court could also
disregard denials that contain new facts. See id. (disregarding denials that
“although supported by admissible record evidence, do[] more than negate its
opponent’s fact statement—that is, it is improper for a party to smuggle new facts
into its response to a party’s L.R. 56.1 statement of fact”). The court could
“disregard[ ] any additional statements of fact contained in a party’s response brief
but not in its L.R. 56.1(b)(3)(B) statement of additional facts.” Id.
Nonetheless, it is preferable to address the arguments on the merits. Thus,
despite the local rule issues, the court has evaluated the parties’ arguments on the
merits to the fullest extent feasible given the filings and has considered Gnutek’s
points on the merits as best the court can, short of independently scouring the
extensive record. Except as specifically noted below, the court has considered (and
has not disregarded due to local rule issues) the facts as presented by the parties.
B. Count I: Title VII Retaliation against the IGB
Gnutek asserts that the IGB unlawfully retaliated against him in violation of
Title VII due to his “history of opposing unlawful actions under Title VII.” [1]
¶¶ 32–33. The IGB argues that summary judgment is proper on this claim because
Gnutek cannot show that his termination was caused by his protected activity (i.e.,
his previous lawsuits against the IGB). [39] at 5. In response, Gnutek contends
that a jury could conclude that the altercation was not the real reason for his
termination. [43] at 11.
Title VII prohibits retaliation against employees who engage in statutorily
protected activity by opposing an unlawful employment practice or participating in
the investigation of one. 42 U.S.C. § 2000e–3(a); Lord v. High Voltage Software,
Inc., 839 F.3d 556, 563 (7th Cir. 2016). A Title VII retaliation claim requires a
showing that (1) the plaintiff engaged in statutorily protected activity and (2)
suffered an adverse employment action (3) because of that statutorily protected
activity. Lord, 839 F.3d at 563. The parties do not dispute that Gnutek engaged in
statutorily protected activity or that Gnutek suffered an adverse employment
action. [39] at 5. The parties dispute only the third element—causation.
“A [Title VII] retaliation claim requires proof of causation, which in this
context means but-for causation.” Lord, 839 F.3d at 563. “When confronted with
circumstantial evidence of a retaliatory motive, the employer may show that the
employee would have been fired even absent his complaints about harassment.” Id.
at 564. “Even if a plaintiff establishes a retaliatory motive, he must also
demonstrate that the complained of action would not have occurred without the
retaliatory motive. Retaliation does not exist if the complained of actions would
have still occurred.” Lieberman v. Budz, No. 03 C 2009, 2009 WL 1437609, at *14
(N.D. Ill. May 20, 2009).
“[A]n employer’s proffered justifications are always susceptible to attack, and
[a plaintiff] can avoid summary judgment if a material factual dispute exists on the
question of pretext.” Lord, 839 F.3d at 563. “Pretext involves more than just faulty
reasoning or mistaken judgment on the part of the employer; it is lie, specifically a
phony reason for some action.” Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th
Cir. 2008) (quotation marks omitted). “If a reasonable fact finder would be
compelled to believe the [defendant’s] explanation, then the [defendant] is entitled
to summary judgment.” Id. Put differently, “Does the record contain sufficient
evidence to permit a reasonable fact finder to conclude that retaliatory motive
caused the discharge?” Lord, 839 F.3d at 564.
In the context of a suspicious timing argument (and there is no apparent
reason why the same principle would not hold true in the context of pretext more
generally), significant intervening events can defeat any reasonable inference of
causation. See Young-Gibson v. Bd. of Educ. of City of Chicago, 558 F. App’x 694,
699–700 (7th Cir. 2014) (“In light of these significant intervening events, a jury
could not reasonably accept Young–Gibson’s suspicious-timing argument.”) (citing
Kidwell v. Eisenhauer, 679 F.3d 957, 967 (2012) (“[T]he evidence shows that
[plaintiff]’s own aberrant actions or other intervening circumstances led to the
negative responses.”); Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664,
675 (7th Cir. 2011) (same)).
Here, even construing the facts in the light most favorable to Gnutek, no
reasonable fact finder could conclude that Gnutek was discharged because of his
previous litigation against the IGB (or any possible retaliatory motive stemming
from that prior litigation). The only reasonable conclusion from the record is that
Gnutek would have been discharged on the basis of the altercation and subsequent
legal proceedings even absent his prior lawsuits against the IGB.
Gnutek contends that a jury could conclude that the IGB’s reasons for his
firing were pretextual. He points to five pieces of evidence or alleged disputes of
fact that, he argues, taken together, indicate that the IGB’s reasons for his
discharge were pretextual, and would allow a jury to so conclude (as Gnutek
describes it, “reasons why a jury could conclude that the IGB and the Individual
Defendants are simply not being truthful with their explanations and, as a result,
infer that the real reason was retaliatory,” [43] at 12):
1. “First, the Defendants have not been honest about their actions.
Knowing that CMS had to approve the discharge they falsely told CMS
that Gnutek had been convicted when he had not. Further, they are
now falsely claiming that it was actually CMS who made the decision
to terminate.” Id.
2. “Second, they have treated others who have engaged in far more
serious misconduct much less harshly and have placed individuals who
are clearly compromised in positions of significant trust.” Id.
3. “Third, they have a history of retaliation, particularly one of retaliating
against Gnutek.” Id.
4. “Fourth, they have completely failed to comply with the Illinois
Personnel Rules that govern how they are supposed to handle
individuals who have been accused of criminal activity.” Id.
5. “Fifth, the Illinois State Police declined to even conduct an
investigation into this incident.” Id.
The court addresses each of Gnutek’s five arguments below. For organization
and clarity, each of the five arguments is discussed separately. However, all the
evidence must be considered together in deciding whether Gnutek has raised a
genuine dispute that his discharge was retaliatory. Considering all the evidence as
a whole, it does not raise such a dispute and summary judgment is therefore
warranted.
Turning to the first of Gnutek’s five arguments:
Gnutek says that the defendants “have not been honest about their actions.”
[43] at 12. Specifically, Gnutek contends that defendants knew that CMS had to
approve the discharge and “falsely told CMS that Gnutek had been convicted when
he had not.” Id. Gnutek also contends that defendants “are now falsely claiming
that it was actually CMS who made the decision to terminate” rather than
defendants (IGB and its personnel). Id.
Addressing these two points in turn:
Gnutek argues that, throughout the disciplinary process, IGB, Ostrowski,
and Weathers initiated, pursued, and submitted to CMS for approval charges that
included the charge of conviction, when (according to Gnutek) defendants knew that
in fact Gnutek had not been convicted and that the charge of conviction was
unfounded. As Gnutek argues, defendants pursued the charge of conviction
throughout the process—beginning with the initial charges given in Ostrowski’s
January 9, 2015, memorandum and extending through the final charges in
Ostrowski’s February 2, 2015, letter, which IGB submitted to CMS for approval
with Ostrowski’s approval. This was so despite Gnutek’s initial email after the
bench trial and Gnutek’s written rebuttal after the pre-disciplinary meeting, both of
which explained that (in Gnutek’s view) Gnutek had not been convicted.
Effectively, Gnutek argues, Ostrowski and Weathers misled CMS into believing
that there was a conviction and obtained CMS’s approval of the discharge before the
final disposition (not guilty) occurred.
This argument is not persuasive, for various reasons.
For one, Gnutek’s argument relies on the premise that “[u]nder Illinois law,
the entry of the order on November 6, 2014, was not a conviction because no
sentence had been imposed.” [43] at 14 (citing People v. Salem, 2016 IL App (3d)
120390, ¶ 45). This premise—that the November 6, 2014, finding of guilt was not a
“conviction” under Illinois law—is debatable as a matter of Illinois law. The Illinois
Supreme Court has explained that “the word ‘conviction’ is ambiguous” and
“[d]epending on the context, the word ‘conviction’ can be reasonably construed to
mean the date of sentence, or the date on which an adjudication of guilt was
entered.” People v. Woods, 739 N.E.2d 493, 495 (2000); cf. United States v. Lloyd,
184 F.3d 695, 697–98 (7th Cir. 1999) (stating, in 18 U.S.C. § 922(g)(1) case, that
“Illinois would treat Lloyd as having been ‘convicted’ during the pendency of his
probation” even though “defendant . . . may upon successful completion of probation
(i.e. discharge and dismissal), have the conviction expunged”). The Illinois
Appellate Court case Gnutek cites, Salem, involved the definition of “conviction” for
the purposes of “impeachment of a defendant during a criminal trial,” Salem, 2016
IL App (3d) 120390, ¶ 46—not the employment context.
Second and more importantly, the charges that IGB brought did not purport
to incorporate the definition of “conviction” under Illinois law, but instead were
based on the Rules of Conduct found in Chapter 4 of the IGB Employee Handbook.
Those rules define “conviction” broadly: “For purposes of this section, ‘convictions’
include all misdemeanors and felonies committed as an adult for which you plead
guilty, are found guilty, are convicted, or agreed to an alternative sentencing
program or pretrial diversion program which required an admission, stipulation or
finding of guilt, including court supervision and/or probation.” [38-23] at 4 (italics
added). Based on the bench trial transcript, it is beyond dispute that Gnutek was
found guilty on November 6, 2014, despite the fact that the court later vacated the
finding.7 It is also undisputed that defendants obtained the bench trial transcript,
so they knew of the finding of guilt.
It is true that defendants also would have known from the bench trial
transcript that the finding of guilt could later be vacated, potentially at the next
hearing in 90 days if Gnutek complied with the conditions set by the court. And in
fact, on April 29, 2015, after Gnutek’s discharge from the IGB, the state court did
enter an order finding Gnutek not guilty on the battery charge. Nonetheless, the
definition of “conviction” in the Employee Handbook Rules of Conduct does not
exempt findings of guilt that are later vacated. Indeed, the definition specifically
incorporates alternative sentencing programs and pretrial diversion programs that
required a finding of guilt (even though any record may later be expunged, cf. Lloyd,
184 F.3d at 697–98). That language indicates that the Rules of Conduct definition
7 Although this basis is not necessary to the court’s holding since Gnutek was found guilty on
November 6, 2014, the state court’s finding of guilt also may have fallen within the separate
language about diversionary programs that required a finding of guilt in the rules’ definition of
“conviction.” [38-23] at 4 (“For purposes of this section, ‘convictions’ include all misdemeanors and
felonies committed as an adult for which you plead guilty, are found guilty, are convicted, or agreed
to an alternative sentencing program or pretrial diversion program which required an admission,
stipulation or finding of guilt, including court supervision and/or probation.”) (italics added).
was broad and covered a finding of guilt even though the finding could later be
vacated.
A broad reading of the Rules of Conduct definition is also plausible given the
employment context. The facts of this case illustrate why. Again, it is true that the
finding of guilt was later vacated, presumably after Gnutek satisfied the conditions
the judge imposed. But in making the finding of guilt, the judge found that
(1) Gnutek had “lost control” in an altercation with a member of the public and
(2) Gnutek’s version of events, to which Gnutek had testified in court, was not
credible given Gnutek’s strength relative to the victim.8 As a Gaming Senior
Special Agent, Gnutek “was an armed peace officer and had daily interactions with
members of the public while performing his investigations and law enforcement
duties, which included performing regulatory tasks such as internal audits and
investigations, coordinating surveillance, monitoring employees and the public for
illegal activities like card counting, making arrests, performing criminal
investigations of the staff and members of the public, processing and booking
arrestees, and appearing in court.” [42] at 6 ¶ 12. The IGB could reasonably
include in its employee Rules of Conduct, and could reasonably enforce, a definition
of “conviction” that encompassed the type of findings that the judge made about
both Gnutek’s role in the altercation and his credibility—even if the finding of guilt
was later vacated. (For the same reasons, the judge’s findings, about both Gnutek’s
role in the altercation and his credibility, make the separate charge that the IGB
brought and CMS approved—conduct unbecoming an officer—legitimate beyond a
doubt. For this reason alone, Gnutek cannot show a genuine dispute that the
discharge was pretextual. But, even assuming for the sake of argument that
Gnutek could survive summary judgment by showing a genuine dispute that the
conviction charge was pretextual (without a showing that the conduct unbecoming
8 Gnutek does not seriously contest the court’s findings. He admits that he was involved in an
altercation with a member of the public. [43] at 11; [42] at 6 ¶ 13. He does not appear to dispute
that this altercation was violent, resulted in injury to the other driver, and that he was arrested and
charged with battery. [42] at 7 ¶¶ 15, 16. While Gnutek’s response states, without a supporting
citation to the record, that his “version of events is different” from the version contained in the police
report, id. at 7 ¶ 15, Gnutek provides no additional statement of facts in his own Local Rule 56.1
statement contesting the allegation that he engaged in a violent altercation with a member of the
public and that this altercation resulted in injury to the other driver. In short, Gnutek effectively
admits that he engaged in a violent altercation with the other driver and presents no additional facts
contesting the court’s findings.
Even if the court’s findings were contestable (and there is no apparent reason why they
would be), the issue here is not whether the findings were correct. Rather, the issue is whether there
is any genuine dispute as to either defendants’ knowledge of the court’s findings or defendants’
motives in seeking charges against Gnutek in light of the court’s findings. There is no dispute that
defendants knew of the findings, since defendants obtained the transcript. As to defendants’
motives, for the reasons discussed in this section, the court’s findings indisputably provide a
legitimate basis for the charges and thus preclude any genuine dispute that defendants’ motives
were pretextual.
an officer charge was also pretextual), Gnutek has not identified a genuine dispute
that the conviction charge was pretextual, for the reasons discussed in this section.)
Moreover, there is no evidence that defendants misled CMS as to the state or
effect of the legal proceedings. There is a February 11, 2015, email from Weathers
to a CMS employee telling the CMS employee that “Mark O. [Ostrowski] said that
there is no final disposition document until after he is sentenced in March. I’m
attaching a copy of the criminal disposition sheet, which reflects a finding guilt [sic]
and was signed by the judge. You should have this in the packet (last page of the
court documents). Let me know[.]” [42-1] at 61.9 Gnutek argues that this email is
misleading because Weathers did not tell CMS that Gnutek told IGB (and
Ostrowski and Weathers) that ultimately he would not be convicted (as Gnutek told
IGB immediately after the bench trial and again in his written response to the
charges after the pre-hearing meeting). But the email does not support any
reasonable inference that defendants misled CMS. Rather, the email accurately
reflects the finding of guilt (which certainly occurred, based on the bench trial
transcript) and expressly conveyed that there would be no final disposition
document until after the sentencing in March.
Returning to Gnutek’s second point, Gnutek contends that there is evidence
of pretext because defendants are falsely shifting to CMS (rather than IGB and its
personnel) the initial decision to discharge. Gnutek contends that defendants are
now falsely claiming that CMS initially recommended discharge, when in fact IGB
made the initial decision. For the reasons explained below, any dispute about
CMS’s role does not raise a genuine dispute that defendants acted pretextually.
First, by way of background and as noted above, CMS is a state agency that
enforces the personnel code and rules for state employees. [42] ¶ 25. Agencies like
the IGB typically make a decision to discipline or discharge an employee and send a
request for that discipline to CMS for approval. Id. An agency cannot discharge an
employee without CMS approval. Id.
Here, defendants contend that, after compiling documents and preparing a
pre-discipline package, Ostrowski and Weathers (the IGB equal employment
opportunity officer) referred the question of how to discipline Gnutek, including
whether to discharge him, to CMS. [42] at 10 ¶ 26. (Defendants’ account of this
referral rests largely on Weathers’s and Ostrowski’s depositions, see [38] at 7–8
¶¶ 25–31 (citing portions of Exs. 2 and 4, i.e., [38-2] (Weathers Dep. Tr.) and [38-4]
(Ostrowski Dep. Tr.)).
As to the timing of this referral, defendants do not provide an exact date on
which this referral occurred; but defendants contend that “[t]his referral to CMS
9 The parties have not cited in the record a copy of the criminal disposition sheet referenced in this
email.
was made before IGB made its determination of what level of discipline to request
for Plaintiff.” [42] at 10 ¶ 26. (In defendants’ Local Rule 56.1 statement,
defendants also discuss this referral before they discuss the January 15, 2015, pre-
disciplinary meeting, perhaps implying that defendants believe the referral
occurred before the pre-disciplinary meeting.) Weathers testified at her deposition
that although typically an agency makes a request to discharge, and then CMS
reviews and approves (or does not approve) the request, here, IGB went to CMS
before IGB made a decision. [38-2] at 12 (dep. p. 38:6–22). That occurred, Weathers
testified, because “Mark [Ostrowski] wanted to have another set of eyes take a look
at it. Before coming to a determination, let’s go ahead and submit it – you know,
whatever their recommendation would be.” [38-2] at 12 (dep. p. 38:19–22).
As to what the referral involved: According to defendants, “Weathers spoke
directly to an individual at CMS who was the deputy director of labor relations at
the time and provided him with documents relevant to Plaintiff’s arrest and
employment. She did not indicate to the individual what discipline she thought was
appropriate, but asked him to look at it and tell IGB what he thought.” [42] at 10
¶ 27. Defendants further contend that “Ostrowski did not communicate with
anyone at CMS about Plaintiff’s arrest and potential discipline for the arrest at any
time before Plaintiff’s termination,” [42] at 11 ¶ 28; “Ostrowski did not have a
conclusion in mind as to what discipline was appropriate before the pre-disciplinary
history[10] on January 15, 2015,” [42] at 11 ¶ 29; and “Ostrowski opted to ask for
CMS’s opinion because he determined that an independent evaluation of the
discipline would be appropriate given Plaintiff’s prior overturned termination and
the related lawsuit,” [42] at 12 ¶ 30. According to defendants, “CMS recommended
that discharging Plaintiff was the appropriate discipline.” [42] at 12 ¶ 31.
Regardless of any CMS recommendation that (according to IGB’s version,
described above) may have occurred before IGB decided to seek discharge, the IGB’s
final written charges seeking Gnutek’s discharge, as well as CMS’s formal approval
of the IGB’s written charges, occurred in February 2015. Specifically, Ostrowski’s
letter to Gnutek transmitting the final written charges was dated February 2, 2015,
[42-1] at 63, and the attached written charges gave February 3, 2015, as the date of
the suspension pending discharge, [42-1] at 64. And, according to CMS’s
documentation (the CMS Notice of the Approval of Written Charges by the Director
of Central Management Services), the IGB’s written charges seeking Gnutek’s
discharge were dated February 3, 2015, and CMS approved those charges (and thus
Gnutek’s discharge) on February 20, 2015. [38-24] at 2.
Gnutek disputes IGB’s account (described above) of IGB seeking an advance
recommendation from CMS. In Gnutek’s view, IGB and its leadership and
personnel (Ostrowski and Weathers) were determined to discharge Gnutek no
matter what; Gnutek disputes that CMS made a recommendation to discharge
10 This appears to refer to the pre-disciplinary meeting.
before IGB (Ostrowski and Weathers) had made a decision to discharge.
Specifically:
• Gnutek contends that “[t]here is no documentation in the record to suggest
that information was forwarded to CMS before a decision to discharge had
been made by the IGB.” [42] at 10 ¶ 26. However, Weathers testified at her
deposition that, in seeking the advance recommendation, given the proximity
between her office and CMS’s office, she probably would have hand delivered
a packet with relevant information to CMS. [38-2] at 12 (dep. p. 39:20–
41:15).
• Gnutek also points to an email dated February 18, 2015, from Weathers to a
CMS employee in which Weathers asks the CMS employee for an update on
Gnutek’s discharge packet so that she can share it with Ostrowski. [42-1] at
61.11 Gnutek asks, “[i]f Ostrowski and Weathers knew beforehand that CMS
was automatically going to terminate, why would they write this email?” [42]
at 10 ¶ 26. Gnutek argues that “[t]he suggestion that it was CMS who made
the recommendation is misplaced.” Id. But as explained above, the formal
approval process did not occur until February 2015; IGB sent the final
written charges to Gnutek around February 2, 2015 and CMS approved the
charges on February 20, 2015. Thus, the timing of these emails is fully
consistent with defendants’ timeline, in which IGB consulted with CMS
sometime in advance of the formal approval process but then went through
the formal process in February. For the same reason (IGB’s having consulted
with CMS in advance is fully consistent with IGB’s and CMS’s also
conducting the formal process in February), a statement to the Illinois
Department of Human Rights by John Terranovo, Deputy Director of Labor
Relations for CMS, that the process begins when an agency comes to CMS
with a disciplinary discharge packet, [42] at 11 ¶ 27; [42-1] at 34, also raises
no inconsistency with defendants’ timeline.
• Gnutek has no documentation to suggest that Ostrowski communicated with
anyone at CMS about Gnutek’s arrest and potential discipline for the arrest
at any time before Gnutek’s termination, but does point out that there were
communications between Weathers and CMS and that those inquiries were
based upon Ostrowski’s requests. It is true that emails reflect that Weathers
was communicating with CMS and keeping Ostrowski informed. [42-1] at 61.
11 Similarly, emails between Ostrowski and Weathers on February 18 and 19, 2015 reflect Ostrowski
and Weathers discussing the status of CMS’s decision. Those emails reflect Ostrowski asking
Weathers, “Any word from CMS?”, Weathers responding that she “spoke with CMS, and [a particular
CMS employee] signed off (approved) on the discharge request, and it is now being reviewed by one
of the labor attorneys. I’m expecting a final decision by Tuesday . . . . I’ll keep you posted,” and
Ostrowski responding “Ok thanks.” [42-1] at 60.
While this demonstrates personal involvement by Ostrowski, it does not raise
a genuine issue as to Ostrowski’s motives.
In short, if defendants are right that they sought an advance
recommendation from CMS, then there is no evidence of pretext.12 If Gnutek is
right that defendants did not seek an advance recommendation from CMS, then
that establishes at most that defendants followed typical procedures (as they clearly
did in February 2015 with the IGB issuing the final written charges and CMS then
approving the charges); no reasonable inference of pretext could be drawn.
The court now addresses the remaining four arguments by Gnutek.
In the second argument, Gnutek contends in his brief opposing summary
judgment that “[o]ther individuals who were in significant positions of trust and
responsibility were treated differently.” [43] at 16. He claims that “[i]n the
Gnutek/Hobgood litigation much was made of two instances of individuals who had
significant roles in the IGB whose integrity is clearly compromised.” Id. at 16–17.
He then details two instances of individuals who he claims had committed worse
offenses and suffered less serious consequences than discharge. Id. He supports
these assertions with direct citations to deposition testimony from the
Gnutek/Hobgood litigation. Id. However, this portion of Gnutek’s brief does not
cite either his or defendants’ Local Rule 56.1 statement and presents facts that are
not asserted in either statement. Compare [43] at 16–18 with [42].
Again, “[u]nder settled law, facts asserted in a brief but not presented in a
Local Rule 56.1 statement are disregarded in resolving a summary judgment
motion.” Perez, 2011 WL 4626034 at *2. This rule is not a mere technicality;
rather, if these additional facts had been presented in a statement of additional
undisputed facts, that would have allowed defendants a proper opportunity to
respond and properly presented the dispute or alleged dispute for the court. Since
this portion of the brief does not comply with Local Rule 56.1, and the presentation
directly hindered defendants’ ability to respond and the court’s ability to assess the
issue on the basis of a properly developed record and arguments, the court
disregards the factual assertions related to these other individuals. There is no
properly presented evidence that other individuals were treated differently by the
IGB so as to suggest that Gnutek’s firing was retaliatory.
12 Gnutek does not argue that seeking an advance recommendation from CMS would itself show
pretext. Rather, Gnutek disputes that IGB sought such a recommendation from CMS and argues
that IGB made the decision first. Even if Gnutek had argued that seeking an advance
recommendation from CMS would show pretext, there is no reason to credit such an argument.
Gnutek has not identified any law, rule, or policy prohibiting IGB from seeking such a
recommendation.
Third, Gnutek argues that “[t]here has been a pervasive history of retaliation
at the IGB – particularly as it relates to Gnutek.” [43] at 18. He relies on the
Seventh Circuit’s decision in Hobgood v. Illinois Gaming Bd., 731 F.3d 635 (7th Cir.
2013), and argues that the “Hobgood decision demonstrates that there was
tremendous hostility directed at the RICO lawsuit and a jury in this case could
certainly see that and find that hostility played a sizeable role in the decision to
terminate Gnutek.” [43] at 19.
Of course, Gnutek’s significant history of highly contentious litigation against
the IGB (in which Gnutek first alleged Title VII retaliation and then alleged
corruption at the highest levels of state government, including at the IGB itself but
extending beyond the IGB) is a reason to consider carefully whether summary
judgment is indeed warranted. In many hypothetical sets of circumstances,
different from the circumstances here, that significant litigation history could very
well warrant denying summary judgment, as in Hobgood.
But this particular record presents the potentially rare circumstances where
despite the very significant litigation history, no reasonable juror could find
retaliation. Unlike in Hobgood, here there was not only a significant litigation
history but also a significant intervening event (or events)—the altercation, bench
trial, and finding of guilty on the battery charge (including the court’s specific
findings as to both Gnutek’s role in the altercation and his credibility). As noted
above, in the context of a suspicious timing argument, significant intervening
events can defeat any reasonable inference of causation. See Young-Gibson, 558 F.
App’x 694, 699–700 (7th Cir. 2014) (“In light of these significant intervening events,
a jury could not reasonably accept Young–Gibson’s suspicious-timing argument.”)
(citing Kidwell v. Eisenhauer, 679 F.3d 957, 967 (2012) (“[T]he evidence shows that
[plaintiff]’s own aberrant actions or other intervening circumstances led to the
negative responses.”); Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664,
675 (7th Cir. 2011) (same)). That is the case here.
Gnutek appears to be suggesting that his litigation history with the IGB is
a dispositive fact warranting the denial of summary judgment. However, Gnutek
cannot avoid summary judgment here solely by relying on his prior litigation
history with the IGB and the Hobgood decision—he must competently present
evidence in this lawsuit raising a material dispute of fact regarding the IGB’s
motives in discharging him in this instance. Gnutek has not pointed to any
evidence indicating that he was fired because of his litigation history against the
IGB rather than his conduct in engaging in a violent physical altercation with a
member of the public and the judge’s findings as to role and credibility.
Fourth, Gnutek contends that “[b]y initially placing Gnutek on
administrative leave and not on a suspension pending judicial verdict the IGB and
the Individual Defendants violated protocol and policies.” [43] at 19. Specifically,
Gnutek claims that the defendants deviated from the Illinois Personnel Rules—
rules promulgated by the Director of CMS.
The Personnel Rules contain separate provisions addressing (1) “Suspension
Resulting From Arrest or Criminal Indictment/Suspension Pending Judicial
Verdict,” 80 Ill. Admin. Code 302, Section 302.785, and (2) “Administrative Leave,”
80 Ill. Admin. Code 302, Section 302.795.
Section 302.785, “Suspension Resulting From Arrest or Criminal
Indictment/Suspension Pending Judicial Verdict,” provides:
a) The arrest or criminal indictment of any employee may be
grounds for suspension if the arrest or indictment and facts in
support of either made known to the Director [of CMS]:
1) resulted from an employee’s conduct in the course of
employment duties, including a failure to perform such
duties, or
2) occurred on or proximate to State premises and as a result
of the employee’s conduct thereon, or
3) raises reasonable doubt concerning the employee’s
suitability for continued State employment in the present
assignment or position.
b) The Director shall under the circumstances set forth above, at the
request of an agency, suspend an employee, without pay, pending
a final court determination of innocence or guilt.
c) The following shall control the suspension pending judicial
verdict:
1) An affected employee may be in jail, free on bond or in some
other similar status at the time the suspension is imposed.
2) The arrest or indictment of an employee shall be for State
or Federal criminal or civil charges, or charges brought in
a foreign country, which raise reasonable doubt concerning
the employee’s suitability for continued employment in the
current position. Traffic violations are not sufficient cause
for suspension except where the employee temporarily
loses driving privileges if the license is a requirement for
work as contained in the job description or position
classification specification.
3) Any proposed Suspension Pending Judicial Verdict
requires approval by the Agency head or designee and will
include a complete and detailed statement of the reason(s)
for the suspension and a copy of any official document, such
as charges, indictment or arrest record, which supports the
suspension.
4) Such suspension shall have no designated expiration date,
depending on the length of the initial judicial process. The
suspension ends with the return of the employee to work,
discharge or termination of employment. The Director
shall notify the agency of the status of the suspension 12
months after the suspension is granted and each 12 months
thereafter for the agency to determine the continuing
validity of the suspension. This suspension will not be
continued while the employee appeals an initial guilty
verdict through higher courts.
5) A suspension pending judicial verdict will be submitted to
the Director for approval and service. An approved
Suspension Pending Judicial Verdict will be served on the
employee in person or by certified mail, return receipt
requested, to the employee’s latest address of record. It will
be the responsibility of the employee to notify the agency of
any change of address.
6) Upon a finding of not guilty or the dismissal of the charges
for any reason the employee, upon application, will be
restored to the same or similar position classification in the
agency and work location held at the time the suspension
was issued. A similar position classification shall include:
A) the same position classification with different
duties;
B) a successor position classification; or
C) a different position classification having related
requirements and duties and the same salary or
wage assignment.
7) The employee may or may not be entitled to back pay
depending upon the circumstances surrounding a finding
of not guilty or a dismissal of the charges. The Director
shall make a final determination with respect to whether
back pay shall be granted.
Section 302.795, “Administrative Leave,” provides:
a) With the approval of the Director of Central Management
Services, an agency head may relieve an employee from duty
when extraordinary circumstances and the best interest of the
agency and the State of Illinois will be served in doing so.
b) Circumstances warranting this leave must be of an extraordinary
nature and are limited to those situations where no alternative
means, such as suspension or temporary reassignment of an
employee, will adequately protect the best interest of the agency
and the State of Illinois.
c) Duration of an administrative leave shall be no longer than
necessary to protect the best interest of the agency and the State
of Illinois. The leave shall initially be for no longer than 60
calendar days, but may be extended for additional periods of time,
not to exceed 60 days each, so long as necessary to protect the best
interest of the agency and the State of Illinois.
d) Administrative leave shall not be used as an alternative to
Suspension Pending Decision on Discharge or Suspension
Pending Judicial Verdict pursuant to Section 302.710 and Section
302.785 of this Part.
e) Administrative leave shall not be allowed in lieu of vacation, sick
leave, personal business leave or any other type of paid or unpaid
leave when the other leave is appropriate, nor shall
administrative leave be used to circumvent rules governing limits
on other leaves available to an employee.
f) The agency will immediately provide the affected employee
written notice of the administrative leave, and the agency will
also immediately report any administrative leave to the
Department of Central Management Services.
Gnutek argues that he was improperly placed on administrative leave
instead of suspension pending judicial verdict. He argues that the Rules make it
clear and mandatory that “when an employee is arrested and that arrest and/or
prosecution creates questions as to that employee’s ability to perform his job duties,
he is to be placed into the status of suspension pending judicial determination.”
[43] at 20; see Section 302.785(a)(3)-(b). He contends that the Rules expressly
prohibit using administrative leave as an alternative to suspension pending judicial
verdict. See Section 302.795(d). He argues that if he had properly been placed on
suspension pending judicial verdict rather than administrative leave, he would have
had an automatic right to be reinstated on a finding of not guilty (see Section
302.785(c)(6)). Ultimately, he argues, a jury could conclude that defendants’
“deviation from the clear rules . . . was intended as a way to harm Gnutek’s
prospects of returning to work and infer a retaliatory intent as a result.” [43] at 21.
Defendants respond that the Illinois Administrative Code gives the CMS
Director the discretion and authority to decide to place an employee on either
administrative leave or suspension pending judicial determination. [51] at 12
(citing Sections 302.785(a)-(c)(6), 302.795(a)). It is true that both sections refer to
approval by the Director. See Section 302.785(c)(5), 302.795(a). However, that is
also true of the charges that resulted in discharge. Just as the mere fact that CMS
approves charges (initiated by the IGB) would not preclude a reasonable inference
of retaliation by the IGB (so long as that inference has a basis in the record), so too
the mere fact that CMS approves either administrative leave or suspension pending
judicial determination (after initiation by the IGB) would not preclude a reasonable
inference of retaliation by the IGB (again, so long as that inference has a basis in
the record).
But here Gnutek has identified no basis in the record for such an inference.
Gnutek’s response to defendants’ statements of fact and statement of additional
facts, [42], cites Gnutek’s written rebuttal to the charges where he suggested that
he be placed on a leave of absence pending a judicial determination, [42] at 15 ¶ 12,
but does not cite record evidence on how or why the particular decision was made to
place Gnutek on administrative leave versus suspension pending judicial
determination. Gnutek’s brief cites Weathers’s deposition and says: “Karen
Weathers was asked about the reason for this decision and why Gnutek wasn’t
placed on a suspension pending judicial determination. While she acknowledges
that the issue was likely discussed between her, Ostrowski, Pattarra [sic] and Vega,
she has no real explanation as to why they deviated from the Personnel Rules. Her
testimony was that they just needed to remove Gnutek ([Defendants’] Exhibit 2,
Karen Weathers dep., p. 20-21).” [43] at 20 n.9. Citing Weathers’s deposition
directly in the brief (and in a footnote), as opposed to in the statement of facts,
violates Local Rule 56.1; thus, the court could disregard this evidence. Even if the
court were to consider this evidence, Weathers’s testimony was that there was
probably a discussion or conversation about that decision, but she did not recall
those communications, [38-2] at 7–8 (dep. p. 20:7–20:22). Any inference of
retaliatory intent from that testimony would not be reasonable but speculative.
Defendants also point to an email the day of the altercation and arrest, in which
Ostrowski responded in the affirmative to a question whether for similar incidents
in the past, he had placed IGB agents on administrative leave. [42-1] at 49.
Further, Gnutek does not explain why, just as he was charged not only with
conviction but also with conduct unbecoming an officer under the Employee
Handbook Rules of Conduct, IGB (if CMS approved) could not have placed him on
administrative leave in response to the underlying altercation (as opposed to
placing him on suspension pending judicial verdict in response to the arrest). In the
end, Gnutek’s argument amounts to citations to provisions of the Personnel Rules
without properly presented, nonspeculative record evidence of how the decision was
actually made in this case (or how the rules are actually applied in practice by
either IGB or CMS, which promulgates the rules). Without any evidence of the sort,
there is no genuine dispute for the jury and any inference of retaliation would be
purely speculative.
Finally, Gnutek argues that summary judgment is warranted because “[t]he
Illinois State Police concluded that no investigation was warranted.” [43] at 21. He
points out that “[i]n Hobgood the Seventh Circuit made a point of outlining the fact
that the IGB pursued him even after the Illinois State Police had stopped its
investigation.” Id. Gnutek’s brief alleges that “Vega, an employee of the Illinois
State Police assigned to the IGB, submitted the IGB’s concerns to the Illinois State
Police for investigation (Gnutek App. 49). On October 17, 2014, the Illinois State
Police closed their investigation and refused to process the matter any further
(Gnutek App. 74).” Id.
These facts were not included in either Gnutek’s or the defendants’ Local
Rule 56.1 statements, so the court could disregard them. Even if the court were to
consider these facts, Gnutek’s reliance on Hobgood is again unpersuasive. In
Hobgood, the IGB had asked the Illinois State Police (ISP) to investigate charges
that Hobgood had illegally recorded an IGB employee while assisting Gnutek with
his RICO lawsuit, and the ISP found no evidence to substantiate the allegations
against Hobgood, 731 F.3d at 638–39, yet the IGB continued to pursue the
allegations; “Ostrowski advocated an even more expansive set of charges, including
a charge for illegally recording [the IGB employee], despite the State Police finding
that no evidence supported the charge,” id. at 640. Here, unlike in Hobgood, the
ISP did not state that they found no evidence to substantiate the allegation of
battery. Rather, the ISP wrote to Ostrowski (in the October 17, 2014, letter that
Gnutek cites closing the investigation) that “[p]ursuant to our agreement, DII [the
ISP’s Division of Internal Investigation] will refer this matter back to your agency to
be investigated as you deem necessary. DII will take no further action on the
matter.” [42-1] at 74 (emphasis added). And at the time of the October 17, 2014,
letter by the ISP (after the police report but before the bench trial), it could hardly
be said that there was no evidence to substantiate the allegation of battery.
For these reasons, no reasonable juror could conclude that Gnutek’s
termination was retaliatory. Summary judgment is granted for the IGB on
Gnutek’s Title VII retaliation claim.
C. Count II: First Amendment Retaliation against Ostrowski,
Weathers, and Pattara in Individual Capacities
Gnutek asserts Count II, First Amendment retaliation, against individual
defendants Ostrowski, Weathers, and Pattara in their individual capacities (and
against Ostrowski in his official capacity for the limited purpose of equitable
relief).13 He contends that the “Individual Defendants have engaged in a retaliatory
witch hunt against Gnutek because he has spoken out on matters of public concern”
in violation of the First Amendment, and he seeks damages. [1] ¶¶ 43–45.
To make out a prima facie case of retaliation, a public employee must show
that “(1) his speech was constitutionally protected; (2) he has suffered a deprivation
likely to deter free speech; and (3) his speech was at least a motivating factor in the
employer’s actions.” Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012). As
with the Title VII retaliation claim, the parties dispute only the last element—
causation.
At summary judgment, the plaintiff “must produce evidence that his speech
was at least a motivating factor—or, in philosophical terms, a ‘sufficient
condition’—of the employer’s decision to take retaliatory action against him.” Id. at
965. “After the plaintiff makes that showing, ‘the burden shifts to the defendant to
show that the harm would have occurred anyway.’” Milliman v. County of
McHenry, 893 F.3d 422, 430 (7th Cir. 2018) (quoting Thayer v. Chiczewski, 705 F.3d
237, 251–52 (7th Cir. 2012)). “Once a defendant produces evidence that the same
decision would have been made in the absence of the protected speech, the burden
shifts back to the plaintiff to demonstrate that the proffered reason was pretextual
and that the real reason was retaliatory animus.” Thayer, 705 F.3d at 252. “At the
summary judgment stage, this means a plaintiff must produce evidence upon which
a rational finder of fact could infer that the defendant’s proffered reason is a lie.”
Id. (quoting Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir. 2011)).
Plaintiff argues that the causation standards for Title VII and First
Amendment retaliation claims are different. [43] at 9. He alleges that a First
Amendment claim requires only a showing that protected conduct “was a
substantial or motivating factor in the decision, not ‘but-for’” causation.” Id.
However, as the cases cited above demonstrate, after a plaintiff makes a showing
that his speech was at least “a motivating factor” in the employer’s decision, the
13 Since Ostrowski has left the IGB, the request for equitable relief (reinstatement) may be moot.
But the parties have not briefed this issue. In any event, summary judgment is warranted on the
claim.
defendant bears the burden of showing that the same decision would have been
made in the absence of the protected speech. Thayer, 705 F.3d at 252. Once the
defendant makes that showing, the plaintiff bears the burden of demonstrating that
the employer’s proffered reason was pretextual. Id. at 252–53.
Here, with respect to the actions of defendants Weathers and Pattara,
Gnutek cannot make out a prima facie case that his previous speech was a
motivating factor leading to his termination.
Weathers was not involved in Gnutek’s prior litigation against the IGB.
Weathers testified that she was not familiar with the existence or substance of
Gnutek’s prior litigation, although she was aware that there had been a prior
lawsuit related to his previous discharge. [42] at 13 ¶ 36. Gnutek’s response to the
defendants’ statement of facts agrees that Weathers testified she lacked knowledge
regarding the previous lawsuits but asserts, without a record citation, that
“Gnutek’s complaints were published in newspapers across the State of Illinois” and
so “[t]he suggestion that [Weathers] would not have been aware of the litigation is
not plausible.” Id. However, since defendants properly put forward evidence about
Weathers’s lack of knowledge, the burden is on Gnutek to identify specific evidence
in response, and here the response amounts to speculation.
For Pattara, defendants’ statement of facts states that Pattara was aware of
Gnutek’s lawsuits involving IGB; he knew that one involved a claim that Gnutek
was not paid the same amount as a female agent and that one involved an
individual named Monk, but he “was not aware of Plaintiff’s RICO claim.” Id. at 13
¶ 37. Gnutek disputes this statement with the citation “See Gnutek sworn
statement,” but does not provide a record citation for the sworn statement, so
defendants’ statement is deemed admitted. Id.
Aside from these claimed disputes Gnutek raises in his response to
defendants’ Local Rule 56.1 statements—the presentation of which is deficient for
the reasons given above—Gnutek does not provide any other statements of
additional fact in his own Local Rule 56.1 statement of additional facts that would
suggest that Weathers or Pattara were motivated to terminate Gnutek based on his
prior litigation against the IGB. Gnutek has therefore not properly presented any
evidence that could lead a reasonable juror to conclude that Gnutek’s prior
litigation was a motivating factor in either Weathers’s or Pattara’s actions leading
to his termination.
It is true, as noted in the factual background earlier in the opinion, that
Pattara was involved in the underlying events that were the subject of litigation in
Gnutek/Hobgood; as noted above, one of the four 2008 IGB charges that Gnutek
challenged in Gnutek/Hobgood was a charge of attempting to access Pattara’s
emails without authorization. But even if Gnutek had made a prima facie showing
against Pattara (for the reasons just noted, based on Gnutek’s sworn statement, or
for any other reason), the claim against Pattara could not proceed for the same
reasons discussed immediately below with respect to Ostrowski (significant
intervening events). The same would be true for any claim against Weathers; even
if Gnutek had made a prima facie showing against Weathers, the claim against
Weathers could not proceed for the same reasons discussed immediately below with
respect to Ostrowski.
Ostrowski was a named defendant in the Gnutek/Hobgood litigation. [38-
14]. Here, that might have been enough to allow a reasonable juror to conclude that
Gnutek’s previous litigation activity was a motivating factor for Ostrowski’s actions
in terminating Gnutek, absent the significant intervening events discussed above—
the altercation, bench trial, and finding of guilty on the battery charge (including
the court’s specific findings as to both Gnutek’s role in the altercation and his
credibility). However, for the reasons discussed above with respect to the Title VII
claim, these were significant intervening events. They offer so compelling a
justification for Ostrowski’s actions that they bring this particular record within the
potentially rare set of circumstances where there is no reasonable inference that
Ostrowski acted out of retaliation. For the same reasons the Title VII retaliation
claim fails, Gnutek has not raised a genuine dispute where a reasonable jury could
decide that Ostrowski’s reasons for terminating Gnutek were pretextual.
Summary judgment is granted for the individual defendants on Count II,
First Amendment retaliation.
D. Count III: Violation of Illinois Ethics Act against Ostrowski,
Weathers, and Pattara in Individual Capacities
Gnutek contends that his prior litigation history is protected activity under
the Illinois Ethics Act and that the individual defendants retaliated against him for
“speaking out on matters protected by the Ethics Act.” [1] ¶¶ 49, 52. Gnutek brings
this claim as to Ostrowski, Weathers, and Pattara in their individual capacities.
The Illinois Ethics Act states, as relevant: “An officer, a member, a State
employee, or a State agency shall not take any retaliatory action against a State
employee because the State employee does any of the following: (1) Discloses or
threatens to disclose to a supervisor or to a public body an activity, policy, or
practice of any officer, member, State agency, or other State employee that the
State employee reasonably believes is in violation of a law, rule, or regulation.”
5 ILCS 430/15-10(1). The Act further provides: “A violation of this Article may be
established only upon a finding that (i) the State employee engaged in conduct
described in Section 15-10 and (ii) that conduct was a contributing factor in the
retaliatory action alleged by the State employee. It is not a violation, however, if it
is demonstrated by clear and convincing evidence that the officer, member, other
State employee, or State agency would have taken the same unfavorable personnel
action in the absence of that conduct.” Id. § 15-20.
“Although the Ethics Act is a state statute and its interpretation is a matter
of state law, the Illinois Supreme Court and Illinois appellate courts have not
interpreted the provisions of the Ethics Act . . . . When there is an absence of
Illinois case law interpreting an Illinois statute, a court may look for guidance to
federal cases interpreting an analogous federal statute.” Hosick v. Chicago State
Univ. Bd. of Trustees, 924 F. Supp. 2d 956, 974 (N.D. Ill. 2013). Hosick analyzed the
anti-retaliation provision of the Illinois Ethics Act as analogous to Title VII’s anti-
retaliation provision. See id.; cf. Costello v. BeavEx Inc., No. 12 C 7843, 2013 WL
2156052, at *2 (N.D. Ill. May 17, 2013) (“However, if there is an absence of Illinois
decisions dealing with a particular labor law issue, federal decisions dealing with a
substantially similar law, while not controlling, may be helpful and relevant.”
(internal quotation marks omitted)). Under this approach, if an employee makes
out a prima facie case of retaliation, the employer must demonstrate that the same
action would have taken place even in the absence of the protected conduct. Hosick,
924 F. Supp. 2d at 976.
This approach is consistent with the plain text of the Illinois Ethics Act. The
Act provides that there is no violation “if it is demonstrated by clear and convincing
evidence that the officer, member, other State employee, or State agency would
have taken the same unfavorable personnel action in the absence of that conduct.”
5 ILCS 430/15-20. Of course, at the summary judgment stage, the evidence must be
viewed through the lens of the summary judgment standard; in other words, the
question is not whether the showing described in the statute has definitively been
made, but whether there is a genuine dispute of material fact warranting a jury
trial on the issue.
Here, again, the altercation with a member of a public by an armed peace
officer, the bench trial, and the finding of guilty on the battery charge (including the
court’s specific findings as to both Gnutek’s role in the altercation and his
credibility) so compellingly justified defendants’ actions that they clearly and
convincingly demonstrate that Gnutek would have been discharged regardless of his
prior litigation. For the same reasons the Title VII and First Amendment
retaliation claims cannot proceed, Gnutek has not raised a genuine dispute
regarding the reasons for his termination. A reasonable juror could only conclude
that Gnutek’s discharge was due to his conduct in engaging in a violent altercation
with a member of the public and the subsequent court findings.
The defendants also argue that the Illinois Ethics Act claim against them is
barred by sovereign immunity. [39] at 11. However, the prior judge already
determined that sovereign immunity barred an Illinois Ethics Act claim against the
IGB but not the individual defendants in their individual capacities. [20]. The
court declines to address this issue again.
Summary judgment is granted on Count III as to Ostrowski, Weathers, and
Pattara in their individual capacities. This count was previously dismissed as to
the IGB and the individual defendants in their official capacities. [21]. Thus, the
grant of summary judgment as to the individual defendants in their individual
capacities results in the dismissal of the rest of Count III.14
CONCLUSION
Summary judgment is granted for the IGB on Count I and the individual
defendants on Counts II and III. There are no remaining claims or defendants. The
case is dismissed with prejudice. Final judgment will enter.
Date: January 19, 2022 /s/ Martha M. Pacold
United States District Judge
14 Plaintiff states in a footnote that “Defendants do not seek summary judgment as to
Vega.” [43] at 1 n.1. However, plaintiff moved to voluntarily dismiss Vega from this action,
and Vega was dismissed accordingly on July 6, 2018. [33]. The other individual defendant,
Charles Cobb, was also voluntarily dismissed on June 13, 2018. [31]. Thus, the court’s
decision does not address those two former defendants.