# Len v. Secretary of State of Illinois

> District Court, S.D. Illinois · May 18, 2021

URL: https://www.frixlaw.com/law-library/cases/10153625

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** May 18, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10153625

## How later opinions describe it (automated extraction)

- affirming a 12(b)(6) dismissal of a former fire inspector’s Section 1983 due process claim where the plaintiff alleged post-termination hearing officers were biased against him because the Illinois Administrative Review Act provided adequate remedies
- explaining that “it is not the task of this [federal] court to enforce in every procedural detail the elaborate requirements of [state law]”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

APRIL LEN, )
)
Plaintiff, )
)
vs. ) Case No. 3:19 -CV-00742 -MAB
)
SECRETARY OF STATE OF ILLINOIS, )
ET AL, )
)
Defendants.

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:
Plaintiff April Len brings this suit pursuant to 28 U.S.C. § 1983 for adverse
employment actions beginning in March 2017 when she was employed by the State of
Illinois Secretary of State (“SOS”) until June 2018 when she was fired (Doc. 43). Presently
before the Court is Defendants Randy Blue, Michael Mayer, and Jay Morgan’s second
motion, and supporting memorandum, to dismiss (Docs. 44, 45). For the reasons set forth
below, the motion to dismiss will be granted.
Factual and Procedural Background
Plaintiff filed her complaint on July 9, 2019 pursuant to 42 U.S.C. § 1983 for issues
related to her employment with and termination from the Office of the Illinois Secretary
of State (“SOS”) (Doc. 1). On December 23, 2019, Defendants filed a motion, and
supporting memorandum, to dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6) (Docs 18, 19). Plaintiff filed her response on April 23, 2020,
where she attempted to include more details of the timeline of events leading up to and
after her firing, but none of these details can be found within the complaint (See generally

Doc. 30). Defendants filed a motion for leave to file supplemental authority on April 24,
2020, which Plaintiff did not oppose (see Docs. 31, 32). In their motion for leave,
Defendants argued that a recent Seventh Circuit case, Vargas v. Cook Cnty Sheriff’s Merit
Bd., is applicable to the present matter as it affirms a motion to dismiss a plaintiff’s due
process claims brought pursuant to 42 U.S.C. §1983 in a similar employment termination
case (Doc. 31). See Vargas v. Cook Cnty Sheriff’s Merit Bd., 952 F.3d 871 (7th Cir. Mar. 11,

2020).
On September 16, 2020, the Court granted Defendants’ motion to dismiss,
dismissing Plaintiff’s claims against the Secretary of State of Illinois and the State of
Illinois with prejudice (Doc. 38). The Court dismissed Plaintiff’s other claims against the
remaining three individual Defendants without prejudice, and allowed Plaintiff leave to

file her first amended complaint. Plaintiff filed her amended complaint on November 5,
2020 (Doc. 43). Soon after, Defendants filed their motion and supporting memorandum
to dismiss (Docs. 44, 45). Plaintiff filed a response to the motion to dismiss on January 8,
2021 (Doc., 47).
The amended complaint details that on or around March 8, 2017, a phone call was

placed to the SOS that triggered an investigation into Plaintiff and her continued
employment (Doc. 43, pp. 2-3).1 Plaintiff had been employed by the SOS since 2000 and,
at this time, she was employed as a Public Service Supervisor for the Department of

Driver Services (Doc. 43). On March 21, 2017, Defendant Randy Blue, employed by the
Office of the Inspector General (“OIG”), and a non-party investigator, Megan Morgan,
interviewed Plaintiff and Plaintiff provided a written statement to them that same day
(Id. at pp. 2-3). On March 30, 2017, Plaintiff provided an additional written statement to
the investigators (Id. at p. 3). On April 19, 2017, the SOS Inspector General forwarded a
summary of his office’s investigation into Plaintiff’s conduct to Stephen Roth, the SOS

Director for the Department of Personnel (Id.).
Over a year later, on May 11, 2018, Plaintiff received written notice that the SOS
was suspending her, pending discharge. This letter contained a statement of charges (Id.).
In response, Plaintiff submitted a rebuttal letter to the SOS on May 16, 2018 (Id.). On May
25, 2018, Plaintiff and her union representative participated in a “pre-discharge” hearing

via telephone (Id.). On June 1, 2018, Plaintiff received written notice that the SOS was
terminating her from her position, effective the same day, and notifying her that she
could appeal to the Merit Commission (Id.).
Plaintiff was represented by an attorney during the Merit Commission hearing (Id.
at p. 4). At some point before the hearing, Plaintiff and her attorney requested copies of

the documents being used by the SOS at the hearing (Id. at p. 4; Doc. 45, p. 3). Plaintiff

1 In considering a motion to dismiss, the court construes the complaint in the light most favorable to the
plaintiff, accepts as true all well-pleaded facts, and draws all possible inferences in the plaintiff’s
favor. E.g., Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation omitted).
received the documents “minutes before” the hearing began and upon a brief review,
Plaintiff and counsel discovered several emails between Defendants Randy Blue, Michael

Mayer (Director of Driver Services with the SOS), and other administration staff about
Plaintiff (Id. at p. 4).
Plaintiff discovered that these emails included “biased and unprofessional
behavior” that indicated coordinated efforts between the investigative and authoritative
parties to terminate her (Id. at p. 4).2 For example, around November 15, 2017, Defendant
Jay Morgan, regional manager, emailed an employee in driver services asking if there

was “any word” on Plaintiff because he thought “she was leaving” (Id. at p. 6).3 On July
25, 2018, Megan Morgan (non-party who helped investigate Plaintiff) exchanged emails
with Ellen Sfikas (assistant general counsel for the SOS) about Plaintiff, in which Ms.
Sfikas stated, “She’s a loony bird,” in reference to Plaintiff (Id.).
On November 14, 2018, the SOS Merit Commission adopted the Hearing Officer’s

Proposal for Decision and terminated Plaintiff from her position with the SOS (Doc. 54,
p. 5). Plaintiff argues she was never given a true opportunity to be heard during the
investigation, pre-discharge telephone conference, or post-discharge Merit Commission
Hearing (Doc. 43, p. 7).

2 Although Plaintiff cites to these emails in her amended complaint, they were not attached to the
complaint and do not appear to be in the record.

3 This appears to be the only place Defendant Jay Morgan is mentioned in facts section of the complaint.
See Doc. 43.
Legal Standard
A motion to dismiss under Rule 12(b)(6) addresses the legal sufficiency of the
plaintiff’s claim for relief, not the merits of the case or whether the plaintiff will ultimately

prevail. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); Gibson v.
City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In reviewing a motion to dismiss, the
court must construe the complaint in the light most favorable to the plaintiff, accept as
true all well-pleaded facts, and draw all possible inferences in the plaintiff’s
favor. E.g., Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation omitted). The

complaint will survive the motion to dismiss only if it alleges facts sufficient to “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff does not need

“detailed factual allegations,” but must plead more than “labels and conclusions” and “a
formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.
Determining whether a complaint plausibly states a claim for relief is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. The structure outlined here for the complaint will ensure

that the defendant receives “fair notice of what the ... claim is and the grounds upon
which it rests.” Twombly, 550 U.S. at 1959.
Discussion
In their second motion to dismiss, Defendants argue that Plaintiff has not alleged
facts to support her due process claim, as she has not alleged inadequate pre- and post-

deprivation procedures (Doc. 45, p. 4). Defendants argue that since Plaintiff has not
properly alleged her first due process claim, her other claims fail, as she has not properly
alleged proof of a constitutional violation, which is required for her failure to intervene
(Count II) and conspiracy (Count III) claims (Id. at p. 9). Finally, since Plaintiff has failed
to properly plead that she has suffered a constitutional violation, Defendants argue the

Court should decline to exercise supplemental jurisdiction over the state claims (Counts
IV-V) (Id. at p. 10). Defendants are correct that Plaintiff’s success at this stage hinges on
her due process claim, so the Court will begin its analysis there.
I. Plaintiff’s due process claim under 42 U.S.C. §1983
Defendants argue in their second motion to dismiss, as they did in their first, that

Plaintiff has not adequately alleged pre- or post-deprivation procedures and, therefore,
cannot maintain her due process claim under §1983 (Doc. 19, pp. 6-8; Doc. 45, pp. 4-9).
Plaintiff disagrees, asserting that she has sufficiently stated a due process violation under
42 U.S.C. §1983, as she has described biased pre- and post-deprivation procedures that
amounted to “sham” opportunities, depriving Plaintiff of her due process rights

throughout the employment termination process (Doc. 47)
Public employees have a property interest in continued employment and it is well-
established that they may not be deprived of that interest without notice and an
opportunity to be heard. See Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 538-41
(1985); Carmody v. Bd. Of Trs. Of Univ. of Ill., 747 F.3d 470, 476 (7th Cir. 2014). In general,

“the right to some kind of prior hearing is paramount.” Bd. of Regents v. Roth, 408 U.S.
564, 569-70 (1972). Prior to termination, or “pre-deprivation,” the public employee must
be provided with notice of the proposed deprivation, a statement of reasons, and an
opportunity to be heard in response. Bradley v. Vill. Of Univ. Park, 929 F.3d 875, 882 (7th
Cir. 2019), citing Bd. of Regents, 408 U.S. 564 ; Perry v. Sindermann, 408 U.S. 593 (1972). State
and local governments can add additional procedural protections, outlined by local

ordinances or state statutes, but non-compliance with these additional protections does
not automatically equate to a federal due process violation. Bradley, 929 F.3d at 883;
Schultz v. Baumgart, 738 F.2d 231, 236 (7th Cir. 1984) (explaining that “it is not the task of
this [federal] court to enforce in every procedural detail the elaborate requirements of
[state law]”).

The exact type of process due depends on the nature of the private interest at
stake, the risk of decisional error, and the government’s interest. Matthews v. Eldridge, 424
U.S. 319, 335 (1976). To determine what sort of process is due, the Seventh Circuit has
explained, “‘the Supreme Court has distinguished between (a) claims based on
established state procedures and (b) claims based on random, unauthorized acts by state

employees.’” Leavell v. Illinois Dep't of Nat. Res., 600 F.3d 798, 804 (7th Cir. 2010) (citing
Rivera–Powell v. New York City Bd. Of Elections, 470 F.3d 458, 465 (2d Cir.2006) (internal
citations omitted)).
In her amended complaint, Plaintiff does not describe issues with established state
procedures; rather, the gravamen of her complaint is that certain individuals who

investigated her throughout the discharge process, some of whom are named Defendants
and some who are not, tainted the entire process through their own biases, violating her
constitutional rights. Plaintiff explains, “[t]hat taint fundamentally affected the reports
subsequently generated and the testimony subsequently offered so that the entirety of
the proceedings that occurred relied upon the tainted investigation and reports” (Doc.
47, p. 6). Therefore, any pre-deprivation hearings were meaningless because the

information presented was biased and skewed to make it easier to fire her. It follows,
Plaintiff argues, that the post-deprivation procedures are also inherently inadequate
because they depend on the original biased investigation (Doc. 47, pp. 6-7). Essentially,
Plaintiff was only provided with “sham” opportunities to be heard that deviated from
the appropriate procedures from start to finish in her termination, thereby violating

Plaintiff’s constitutional rights (Id. at p. 5).
Plaintiff describes that her rights were violated through random and unauthorized
acts by state actors. Leavell, 600 F.3d at 804. Generally, when a state official deprives a
person of her property through a random, unauthorized act4 that departs from state law,
the federal due-process guarantee requires only that the state provide an adequate post-

4 The Seventh Circuit analyzed what constitutes a “random, unauthorized act” in employment cases such
as the present matter. See Vargas.,952 F.3d at 875 (7th Cir. 2020). There, the Seventh Circuit outlined that
biased Merit Board decisions constitute these sorts of “random, unauthorized” acts that depart “from state
law.” Id.
deprivation remedy. Simmons v. Gillespie, 712 F.3d 1041, 1044 (7th Cir. 2013).5 The
Seventh Circuit has described various situations where state actors have departed from

state law and yet, there is no federal violation because there are sufficient post-
deprivation remedies. In other words, “random, unauthorized acts are, after all,
inherently unpredictable, so a plaintiff can prevail on a due-process claim…only if state
law fails to provide an adequate post deprivation remedy.” Vargas, 952 F.3d at 871 (citing
Simmons, 712 F.3d at 1044); see also Michalowicz v. Village of Bedford Park, 528 F.3d 530, 535
(7th Cir. 2008). The Seventh Circuit has also held that the Illinois Administrative Review

Act provides constitutionally adequate post-deprivation remedies for public employees
to challenge these sorts of disciplinary decisions where public employees depart from
state law. Vargas, 952 F.3d at 875 (citing Cannici v. Village of Melrose Park, 885 F.3d 476, 480
(7th Cir. 2018)). The Illinois Administrative Review Act establishes that aggrieved
employees should seek state-court review of final administrative rulings. See 735 ILL.

COMP. STAT. 5/3-101 et seq. Therefore, the question before the Court is whether Plaintiff
has properly alleged in her amended complaint that the post-deprivation remedies are
deficient and, therefore, she must seek redress through this Court as opposed to state

5 While the Court’s analysis focuses on post-deprivation remedies, the parties seem to agree that Plaintiff
received notice and an opportunity to be heard prior to her termination (even though Plaintiff contends the
process was tainted and biased). The parties agree that Plaintiff was provided with notice that the SOS was
suspending her pending discharge on May 11, 2018 (Doc. 43, p. 3). This notice contained a statement of
charges that provided the reasoning for her possible discharge (Id.). The parties agree Plaintiff had two
hearings. The first, which occurred on or around May 25, 2018, was conducted via telephone conference
and Plaintiff was joined by her union representative (Id.). The second was an appeal hearing in front of the
Merit Commission, where she was represented by an attorney, to tell her side of the story (Id. at pp. 3-4).
court. See Doherty v. Cty. of Chicago, 75 F.3d 318, 323 (7th Cir. 1996) (“Where state law
remedies [to random and unauthorized conduct] exist, a plaintiff must either avail herself

of the remedies guaranteed by state law or demonstrate that the available remedies are
inadequate.”).
Here, Plaintiff does not directly address whether state-court review is an
inappropriate or unavailable option for her to seek review of the Merit Commission’s
decision and her entire termination process; rather, she only includes one line stating that
exhaustion is not a prerequisite to §1983 actions (Doc. 47, p. 6, citing Patsy v. Bd of Regents

of State of FL, 457 U.S. 496 (1982)). Plaintiff’s argument misses the mark, as precedent does
not dictate a party must exhaust state remedies prior to filing a federal lawsuit; rather,
precedent requires the plaintiff to demonstrate that the post-termination remedies as
outlined by the Illinois Administrative Review Act fail to provide an adequate post-
deprivation remedy in order to bring suit in federal court, which Plaintiff has failed to

demonstrate.
In their motion to dismiss, Defendants argue a series of cases including one case,
in particular, is analogous to the present matter—Vargas v Cook Cnty Sheriff’s Merit Bd.,
952 F.3d 871 (7th Cir. 2020). In Vargas, the Seventh Circuit upheld a district judge’s order
dismissing that plaintiff’s due process claim. The plaintiff was part of a group of

employees who were discharged from their employment by a Merit Board whose
membership violated state law. The Seventh Circuit held that even though the Merit
Board’s membership violated state law, this, and their decisions, did not automatically
trigger violations of federal due process; rather, these sorts of biased decisions are viewed
as the random and unauthorized acts that depart from state law and federal due process

only required that the state provide an adequate post-deprivation remedy. Vargas, 952
F.3d 871 at 875 (citing to Simmons, 712 F.3d at 1044) (affirming dismissal under 12(b)(6)
for a case in which the plaintiff did not show how the state court’s decision caused him
injury, thereby showing how this post-deprivation remedy was insufficient; rather, the
plaintiff only argued that the state court decision was not favorable enough to
him); Michalowicz, 528 F.3d at 535 (affirming a 12(b)(6) dismissal of a former fire

inspector’s Section 1983 due process claim where the plaintiff alleged post-termination
hearing officers were biased against him because the Illinois Administrative Review Act
provided adequate remedies). The Seventh Circuit in Vargas once again recognized that
the Illinois Administrative Review Act contains an adequate post-deprivation remedy for
public employees to challenge these sorts of random and unauthorized departures from

state law in disciplinary decisions. See also Cannici, 885 F.3d at 480 (collecting cases).
The Court does not see how the present case is any different from Vargas and the
cases before it. Plaintiff has failed to cite to a single case in her brief to support her
contention that this case is different than Vargas. Plaintiff contends that her situation is
factually different from that of the Vargas plaintiff because the investigation leading up

to her termination was biased rather than just experiencing a biased hearing. But even so,
Plaintiff has still alleged that state actors deviated from state law, which requires the
Court to analyze whether the post-deprivation remedy of seeking state-court
intervention, as outlined repeatedly by the Seventh Circuit, is constitutionally deficient.
Defendants highlight that Plaintiff has not asserted facts to demonstrate she availed

herself of the immediate post-deprivation procedure, which is to seek state judicial
review pursuant to the Illinois Administrative Review Law 735 ILCS 5/3-101 et seq. (Doc.
19, p. 7).
Additionally, the parties agree that Plaintiff received notice and an opportunity to
be heard prior to her termination, even though they disagree as to whether this
opportunity was meaningful. Even so, this key agreement differentiates Plaintiff’s case

from those where dismissal was not appropriate because there was no notice and no
opportunity to be heard. See Bradley, 929 F.3d 875 (reversing dismissal of a former police
chief’s Section 1983 due process claim in which plaintiff alleged termination of his
employment without notice and a hearing). As such, Plaintiff has not demonstrated how the
pre- and post-deprivation remedies are deficient in order for this Court to properly hear

her case and, therefore, dismissal is proper at this time.
II. Plaintiff’s Other Claims
In addition to her due process claim, Plaintiff also asserts failure to intervene
(Count II) and conspiracy (Count III) claims under 42 U.S.C. §1983, as well as two state
claims (Counts IV and V). To plead a failure to intervene claim, a plaintiff must

demonstrate that the defendants (1) knew that a constitutional violation was committed,
and (2) had a realistic opportunity to prevent it. Gill v. City of Milwaukee, 850 F.3d 335, 342
(7th Cir. 2017). To prevail on a conspiracy claim, “the plaintiff must show that (1) the
individuals reached an agreement to deprive him of his constitutional rights, and (2)
overt acts in furtherance actually deprived him of those rights.” Daugherty v. Page, 906

F.3d 606, 612 (7th Cir. 2018) (citing Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015)).
Put differently, the plaintiff must “show an underlying constitutional violation” and
“demonstrate that the defendants agreed to inflict the constitutional harm.” Hurt v. Wise,
880 F.3d 831, 842 (7th Cir. 2018). The Court has concluded that Plaintiff failed to state a
due process claim; therefore, she has failed to demonstrate an underlying constitutional
violation to maintain these two claims. These claims will also be dismissed with

prejudice.
Plaintiff’s last two claims are state-law based claims. When the claims supporting
federal jurisdiction drop out of the case, the usual practice is to relinquish jurisdiction
over any remaining state-law claims. Vargas, 952 F.3d at 876, citing RWJ Mgmt. Co. v. BP
Prods. N. Am., Inc., 672 F.3d 476, 480–81 (7th Cir. 2012). As such, the Court will dismiss

these claims without prejudice. Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.
1999) (“[I]t is the well-established law of this circuit that the usual practice is to dismiss
without prejudice state supplemental claims whenever all federal claims have been
dismissed prior to trial.”).
CONCLUSION

Defendants’ motion to dismiss is GRANTED. Plaintiff’s Count I (due process),
Count II (failure to intervene), and Count III (conspiracy) are DISMISSED with
prejudice. Plaintiff’s Count IV (intentional infliction of emotional distress) and Count V
(civil conspiracy), also referred to as Plaintiff’s state-law claims, are DISMISSED without
prejudice. The Clerk of Court is DIRECTED to enter judgment in favor of Defendants

and close this matter on the Court’s docket.
IT IS SO ORDERED.
DATED: May 18, 2021
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153625. Public record. Not legal advice.