Bagley v. Blagojevich

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1389

C OLLEEN B AGLEY, et al.,

Plaintiffs-Appellants,

v.

R OD R. B LAGOJEVICH, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 3:05-cv-3156—Richard Mills, Judge.

A RGUED O CTOBER 22, 2010—D ECIDED M AY 2, 2011

Before K ANNE, T INDER, and H AMILTON, Circuit Judges.

T INDER, Circuit Judge. A group of former captains from

the Illinois Department of Corrections (IDOC) sued state

and union officials alleging that the defendants unlaw-

fully punished them for seeking to organize with a rival

union. One of the defendants is former Illinois Governor

Rod Blagojevich. Much of the litigation below, which

began in June 2005, focused on plaintiffs’ efforts to de-

pose Governor Blagojevich. After a series of motions and

2 No. 10-1389

rulings, the district court found the Governor immune

from deposition pursuant to legislative immunity and

later granted summary judgment to the Governor and

the remaining defendants. We affirm the district court’s

rulings.

I. Background

When Governor Blagojevich assumed office in Janu-

ary 2003, the state faced a $5 billion budget deficit, or 10%

of the state’s budget. A Blagojevich campaign plank

promised to reduce costs and layers of management in

state government. Thus, to reduce the budget gap and

fulfill a campaign promise, Blagojevich administration

officials required state agencies in early 2003 to find

efficiencies in their organizational structures with the

goal of saving money.

A. Blagojevich officials focus on the Illinois

Department of Corrections.

Part of the administration’s review targeted eliminating

management positions in IDOC. Governor Blagojevich’s

deputy chief of staff Julie Curry (an appellee) was re-

sponsible for about fifteen state agencies, including

IDOC. In April 2003, IDOC’s high security facilities main-

tained a twelve-level rank structure. The relevant posi-

tions up the twelve-layered chain of command were cor-

rectional officers, sergeants, lieutenants, captains, ma-

jors/chiefs of security, superintendents, and assistant

No. 10-1389 3

wardens. At about the same time, IDOC employed 217

captains, 40 majors, and 42 superintendents. Captains

performed a variety of supervisory jobs, including that of

a “shift commander.” Captains performing “shift com-

mander” duties did exactly what the title suggests—they

took command of a shift at a facility. Shift commanders

reported to the facilities’ chiefs of security or higher up

the chain of command. Facilities generally maintained

three shifts, but some facilities had more than three

captains. One facility had 28 captains, but only one

captain could command an individual shift at a time. The

following diagram represents IDOC’s command structure

at the time.

4 No. 10-1389

The American Federation of State, County and Municipal

Employees (AFSCME), Council 31 represented about

37,000 Illinois state employees, including about 10,000

IDOC employees. AFSCME contributed $125,000 to

Blagojevich’s primary campaign and $250,000 to his

general election campaign. AFSCME’s RC-6 bargaining

unit represented IDOC officers, sergeants, and other

security employees. AFSCME’s CU-500 bargaining unit

represented lieutenants. The captains were not repre-

sented. In 2000, the captains began meeting with Illinois

State Employees Association (ISEA) representatives. In

2002, ISEA initiated attempts to organize the captains.

In March 2003, AFSCME petitioned to have the captains

become part of the CU-500 bargaining unit. ISEA inter-

vened to block AFSCME and filed its own petition in

April 2003.

In early 2003, Curry began working with James Under-

wood (an appellee and IDOC personnel director starting

in February 2003) and Nancy Bounds (IDOC personnel

director but only until June 2003) to identify positions to

eliminate or consolidate, including captains, chiefs of

security, superintendents, and assistant deputy directors.

Curry believed eliminating captains consolidated IDOC

management and saved about $17 million annually.

Governor Blagojevich proposed a state budget in

March 2003 that did not fund the captain position. Yet

eliminating the captains would not happen until June 30,

2003, the day before the proposed budget became effec-

tive on July 1, 2003.

Curry told AFSCME officials in an April 17, 2003,

meeting that Governor Blagojevich would eliminate the

No. 10-1389 5

captain position. But on May 23, 2003, the Illinois General

Assembly passed a budget that included $17.3 million

in funding for the captain position. The Blagojevich

administration issued a press release on June 4, 2003,

declaring that the Governor would veto various budget

items, including funding for “Corrections’ Captains”

because he could not ask the public “to cover the cost

of middle management we just don’t need.” Governor

Blagojevich formally vetoed the line item funding the

captain position on June 4, 2003. IDOC eliminated the

position on July 31, 2003.

But the process of eliminating the captain position

began earlier. A plan for layoffs, dubbed the June 30

Layoff Plan, anticipated reassigning the captains’ duties

to other positions up and down the chain of command.

This plan anticipated giving captains the following

options: demotion to another position in state govern-

ment; demotion to correctional officer within their

current facility; or being laid off. Meanwhile, AFSCME

opposed offering the captains lower-ranking IDOC posi-

tions, particularly that of lieutenant (right below captain).

Earlier that year, IDOC received permission to fill 122

lieutenant spots. AFSCME officials made it quite public

that IDOC should not offer the position “to people

outside the bargaining unit” and that 700-plus AFSCME

members had passed an exam making them eligible for

the position. A newspaper article quoted the Governor

saying that AFSCME appeared “concerned that most of

these captains happen to be Republicans and that they

shouldn’t be hired. . . . They should be able to reapply

for other positions in state government and we don’t

6 No. 10-1389

care what political party they come from.” AFSCME filed

a grievance on May 28, 2003, complaining that IDOC

violated the collective bargaining agreement (CBA) by

offering lieutenant spots to the former captains.

AFSCME’s complaint failed in arbitration.

Meanwhile, eliminating the captains did not make

the work performed by the captains go away. On June 17,

2003, IDOC created a new position called “shift com-

mander.” Shift commanders performed at least one of the

functions carried out by captains: they commanded shifts.

Employees with the title major/chief of security and

superintendent (the two positions above captain) took

some of the shift commander positions and IDOC pro-

moted 55 of the former captains to fill the remaining spots.

The following diagram represents IDOC’s revised com-

mand structure.

No. 10-1389 7

Budgetary reasons kept the state from giving IDOC

permission to fill all shift commander positions. So IDOC

temporarily assigned some lieutenants to serve as shift

commanders. Operational needs prevented IDOC from

eliminating all superintendent positions and reassigning

those individuals as shift commanders. Of the remaining

former captains, 83 became lieutenants; 64 became correc-

tional officers; 5 became youth supervisors; and 10 were

laid off. Since 2003, Illinois has agreed to an ISEA-repre-

sented bargaining unit of shift commanders. Former

captains taking lieutenant positions became part of

AFSCME’s CU-500 bargaining unit. For purposes of

determining seniority, the CU-500 CBA provides (em-

phases supplied):

8 No. 10-1389

Seniority shall, for the purpose of layoff and recall,

be continuous service as currently defined and

administered by the Rules of the Director of Cen-

tral Management Services. Seniority for all other

purposes shall be the continuous length of service

in the affected employee’s classification, except that

employees employed in the CU-500 bargaining

unit as of July 1, 1989, shall have his/her length

of service prior to July 1, 1989, whether continuous

or not, in his/her affected classification counted

toward his/her seniority.

Because the former captains assumed a different classifi-

cation, IDOC gave them seniority based on their demotion

date. Former captains demoted to the lowest rank of

correctional officer were another matter. Officers were in

AFSCME’s RC-6 unit. The CBA determining seniority

for the RC-6 unit differed slightly and perhaps—de-

pending how it is interpreted—meaningfully (emphases

supplied):

Seniority for RC-6 and 9 shall, for the purposes

stated in this Agreement, consist of the length of

service of an employee with their department in an

AFSCME bargaining unit(s), except when a previ-

ously excluded position enters a bargaining unit

pursuant to labor board procedures, seniority

for an employee in that position shall consist of

the employee’s total length of service with their

department.

IDOC initially gave captains demoted to officer

seniority credit for time previously spent in the

No. 10-1389 9

bargaining unit. AFSCME opposed giving the former

captains credit. Some existing RC-6 bargaining unit

members would lose seniority. Seniority determined

bidding rights for shifts, days off, promotions, and the

order of layoffs. AFSCME maintained that the language

from the RC-6 CBA barred persons entering the RC-6

bargaining unit from receiving seniority credit for past

service in the unit. AFSCME argued that the phrase

“length of service” actually meant “length of continuous

service.” IDOC refused to accept AFSCME’s position so

AFSCME filed a grievance on July 22, 2003. The grievance

went to the state’s Central Management Services (CMS)

for resolution. Before arbitration, CMS determined that

the state’s position was not viable. AFSCME and

IDOC agreed on November 18, 2003, to stipulate that

the captains demoted into the RC-6 unit would receive

seniority based on “their length of the continuous

service . . . beginning with their most recent return to

the RC-6 AFSCME bargaining unit.”

B. Some former captains sue state and union officials.

A group of former captains sued current and former

Illinois officials (including Governor Blagojevich and

Curry) in their individual and official capacities

and AFSCME officials in their individual capacities on

June 24, 2005, alleging that the defendants unlawfully

retaliated against them for seeking to unionize with

ISEA. Plaintiffs alleged that defendants violated 42 U.S.C.

§ 1983 by removing them from their positions as

captains and depriving the demoted captains of their

10 No. 10-1389

seniority in retaliation for their exercise of their First

Amendment rights.

Much of the litigation focused on plaintiffs’ attempts

to depose the Governor. On February 27, 2007, the state

defendants sought a protective order to block plaintiffs

from deposing Governor Blagojevich on grounds that it

would just “disrupt a busy public official who should not

be taken away from his work.” R. 46 (citing among other

cases Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999)).

State defendants maintained that it would never

be appropriate to depose the Governor but argued that

it was particularly inappropriate unless plaintiffs iden-

tified “a particularized need” that could not “be satisfied in

a less burdensome manner.” Plaintiffs opposed the motion

on March 15, 2007, arguing that Governor Blagojevich was

not immune from testifying because evidence established

that he had evidence explaining the captain position’s

elimination. Plaintiffs cited the state’s initial disclosures

stating that Blagojevich had “knowledge concerning his

own actions and thought process, but Defendants object to

any discovery from the Governor without there being a

showing that the Governor has personal knowledge of the

subject matter at issue in the case;” the AFSCME defen-

dants’ initial disclosure that Governor Blagojevich would

have discoverable information regarding the “[d]ecision to

eliminate position of captain;” the administration’s June 4,

2003, press release announcing the line item veto of the

captain position’s funding; and a January 13, 2004, state-

ment by the Governor saying why it was necessary to

eliminate “all these high-level positions that” did not

help IDOC “work better.” Plaintiffs argued that

No. 10-1389 11

Blagojevich’s stated reasons for eliminating the captain

position were pretextual and thus, to prove their claim,

they had “to inquire into the ‘thought process’ of the

Governor in making this decision.”

The magistrate judge denied the state defendants’

request on March 28, 2007, because plaintiffs showed

that it was likely that Governor Blagojevich possessed

“relevant information, such that requiring him to sit for

deposition would be reasonable.” The state defendants

objected on April 10, 2007, and advanced a new argu-

ment that the Governor was entitled to legislative im-

munity from suit and discovery. The state defendants

argued that the complaint’s basis was Governor

Blagojevich’s line-item veto because plaintiffs’ evidence

that Blagojevich participated in the decision was the

press release and interview about the veto. Plaintiffs

responded on April 26, 2007, citing the initial disclosures

and the press release and interview regarding the elim-

ination of IDOC positions as evidence that Governor

Blagojevich had relevant evidence, and argued that

defendants waived legislative immunity by failing to

raise the issue earlier. Plaintiffs also argued that legisla-

tive immunity did not prohibit discovery and that leg-

islative immunity is properly raised in a motion to dis-

miss. The district court adopted the magistrate

judge’s opinion in its entirety on May 10, 2007, allowing

plaintiffs to depose Governor Blagojevich. The court did

not address legislative immunity. See Bagley v. Blagojevich,

486 F.Supp.2d 786, 787 (C.D. Ill. 2007).

But that was hardly the end of the legislative

immunity battle. What happened next frames the case

12 No. 10-1389

for purposes of review. On one side, the state attempted

to block Governor Blagojevich’s deposition by arguing

that he was a busy public official who could only be

deposed if the former captains showed a particularized

need. The state defendants were only partially success-

ful. Although the court rejected the “particularized need”

standard, the court did require plaintiffs to show “that

there is some reason to believe that the deposition will

produce or lead to admissible evidence.” R. 49 (quoting

Hobley v. Burge, No. 03 C 3678, 2007 WL 551569, at *2 (N.D.

Ill. Feb. 22, 2007) (unpublished)). On the other side,

after the former captains showed that it was likely the

Governor possessed “relevant information, such that

requiring him to sit for deposition would be reason-

able,” the state argued that the former captains’ evidence

showing that Blagojevich possessed relevant informa-

tion was based on actions protected by legislative im-

munity. Government officials are entitled to legislative

immunity when their actions “stripped of all consider-

ations of intent and motive” are legislative. Bogan v. Scott-

Harris, 523 U.S. 44, 55 (1998). Courts first look at

whether the action took place “in the sphere of legitimate

legislative activity.” Id. at 54 (quoting Tenney v. Brandhove,

341 U.S. 367, 376 (1951)). Although not mandatory, courts

may also look beyond the government officials’ “formal

actions to consider whether the ordinance was legisla-

tive in substance.” Bogan, 523 U.S. at 55.

On May 30, 2007, Governor Blagojevich moved for

reconsideration and for a protective order regarding his

deposition. The Governor argued that plaintiffs based

No. 10-1389 13

their lawsuit on his veto and that the district court did

not address legislative immunity. Blagojevich argued

that legislative immunity shielded him from testifying

“about the motive and/or rationale for his legislative

veto, which directly implicates a legislative immunity

defense and discovery bar.” Blagojevich also argued that

with the Illinois General Assembly in session, deposing

him would be inconvenient. Blagojevich supplemented

this motion on June 19, 2007, asking the district court

to strike the deposition notice plaintiffs submitted on

June 13, 2007. Plaintiffs responded on June 19, 2007,

arguing that Governor Blagojevich improperly raised

“legislative immunity” because he failed to raise it

when he first opposed the deposition. Plaintiffs argued

that legislative immunity is an affirmative defense,

that evidence suggested that the Governor’s decision

to eliminate the captain position before his veto was

administrative, not legislative, and that the case in-

volved Governor Blagojevich’s motivations in the deci-

sion regarding the former captains’ seniority. Governor

Blagojevich replied June 21, 2007, noting that the state

defendants did not mention legislative immunity in

their December 16, 2005, answer “because there were

no allegations of legislative acts in the Complaint.”

Governor Blagojevich filed an emergency motion for

a protective order on Friday, June 22, 2007, asking for

a stay of his deposition that plaintiffs scheduled for

Monday, June 25, 2007. Blagojevich argued that the dep-

osition notice was improper because plaintiffs issued

it while the motion to reconsider was pending, with short

notice during a legislative session, and without con-

14 No. 10-1389

firming defense counsel’s availability. That same day,

plaintiffs responded and the district court denied

Blagojevich’s motions to reconsider and for a protective

order. But the court ruled separately on Governor

Blagojevich’s emergency motion for a protective order,

staying the deposition due to the “difficulty scheduling

the deposition.” The court also directed the parties to

contact the magistrate judge to schedule the deposition.

The parties conferred on June 28, 2007, agreeing not to

conduct the deposition until the legislative session ended

in “probably late August, 2007.” Blagojevich’s counsel

advised that “he may be seeking a protective order

or other relief on the scope of Governor Blagojevich’s

deposition or otherwise based upon privilege.”

On July 25, 2007, Governor Blagojevich renewed his

efforts to block his deposition. He argued that legislative

immunity barred plaintiffs from deposing him on the

captain position’s elimination and that in the alternative

his deposition should be delayed because of his govern-

ment position. On August 7, 2007, Governor Blagojevich

moved to dismiss the complaint against him pursuant

to legislative immunity. He argued that eliminating

the captain position was legislative, that the plaintiffs

wanted to hold him liable for a budgetary decision,

and that the inquiry was based on his “thought process.”

On August 8, 2007, Curry sought a protective order to

limit her deposition’s scope pursuant to legislative im-

munity (excluding IDOC’s budget proposals, the captain

position’s funding, and the veto). Plaintiffs responded

September 24, 2007, arguing that the budget changes “were

not merely legislative in nature” because others were

No. 10-1389 15

placed into positions to perform the same work and that

no one performed a budget analysis. Plaintiffs argued

that Governor Blagojevich’s actions preceding the

captain position’s elimination were “outside the scope

of legislative immunity.” Plaintiffs cited the governor’s

meetings during “budget negotiations which involved

negotiations outside the legislative process.” Plaintiffs

argued that these “meetings were being held in order

for the Governor to appease contributors to his cam-

paign.” Plaintiffs opposed the motion to dismiss on

grounds that legislative immunity, if applicable, did not

shield Governor Blagojevich from liability on the

seniority aspect of their claim.

On December 7, 2007, the court denied Blagojevich

and Curry’s motions. Because defendants answered

plaintiffs’ complaint, the court converted the motion to

dismiss to a motion for judgment on the pleadings.

The court found “[w]ithout a doubt” that the veto was

legislative procedurally, but nothing on the complaint’s

face suggested that the veto was substantively legisla-

tive. Yet the court also found that nothing on the face of

the complaint suggested that the decision to deny

seniority to the former captains “was accomplished in

the form of a legislative act.” The court refused to decide

whether legislative immunity applied as a testimonial

privilege because defendants did not provide sufficient

evidence that legislative immunity applied to their

actions. The court also noted that neither party provided

evidence explaining whether the shift commanders

were merely renamed captains. If the shift commanders

were renamed captains, the court said the veto would

16 No. 10-1389

be administrative. Bagley v. Blagojevich, No. 05-3156,

2007 WL 4302434 (C.D. Ill. Dec. 7, 2007).

Governor Blagojevich renewed his protective order

motion on January 23, 2008, again on grounds of legisla-

tive immunity. Blagojevich provided evidence on

whether the shift commanders were simply renamed

captains. He argued that the shift commanders had

additional responsibilities and that the timing of the

shift commander position’s creation suggested that it

was not simply a renamed captain. The Governor also

argued that his deposition would not produce evidence

concerning the seniority decision and thus he should not

be deposed on that matter due to his government posi-

tion. On January 25, 2008, Curry renewed her motion for

a protective order limiting her deposition’s scope. Plain-

tiffs responded April 14, 2008, arguing that the shift

commander position was simply a renamed correc-

tional captain, and that at the very least, a question of

fact precluded a legislative immunity finding. Governor

Blagojevich filed a renewed motion for judgment on

the pleadings on May 22, 2008, pursuant to legislative

immunity.

On October 22, 2008, the court granted Governor

Blagojevich and Curry protective orders pursuant to

legislative immunity. The court did not determine

whether shift commanders were renamed captains

because it found that the plaintiffs’ evidence showed

that “the elimination of the captain position had prospec-

tive implications . . . and . . . [had] the traditional hall-

marks of legislative action.” The court prohibited

No. 10-1389 17

plaintiffs from seeking discovery from Curry on the

IDOC budget, the legislation defunding the captains, and

the analysis of the budgetary effects of the position’s

elimination. The court also found that plaintiffs failed

to present evidence suggesting that Governor Blagojevich

participated in the seniority decision and decided

that deposing Governor Blagojevich would be improper.

The court also converted the motion on the pleadings

to a motion for summary judgment and deferred its

ruling until the parties had an opportunity to present

more evidence. Bagley v. Blagojevich, No. 05-3156, 2008

WL 4724310 (C.D. Ill. Oct. 22, 2008).

The court granted Governor Blagojevich summary

judgment on February 20, 2009, based on its finding

that legislative immunity shielded him from liability.

The court also found that plaintiffs failed to present

evidence connecting Governor Blagojevich to the sen-

iority decision. Bagley v. Blagojevich, No. 05-3156, 2009

WL 426399 (C.D. Ill. Feb. 20, 2009).

The AFSCME defendants filed for summary judgment

on February 26, 2009, and the remaining state defendants

did the same on February 27, 2009. The state defendants

argued that there was no evidence of a causal relation-

ship between plaintiffs’ union activities and the alleged

retaliatory actions. The state defendants argued that

the captain position was eliminated to reduce manage-

ment layers, that the CBA language drove the seniority

decision, and that there was no evidence of improper

motive or knowledge of plaintiffs’ alleged protected

activities. The AFSCME officials argued that their

18 No. 10-1389

actions related to the former captains’ seniority were

protected by various immunity doctrines, and alterna-

tively, that they did not act under color of state law to

deprive the former captains of their First Amendment

rights.

In a September 1, 2009, response to the summary judg-

ment motions, plaintiffs acknowledged:

. . . that if Governor Blagojevich’s actions are en-

titled to legislative immunity, all of the other

defendants are entitled to immunity as to [the

issue of eliminating the captain position]. Given

that the Court has already granted the motions by

concluding that qualified immunity has been

established, this issue has previously been dis-

posed of. As such, the only issue remaining for

this Court to decide is whether there is sufficient

evidence from which a jury could conclude that

the defendants retaliated against the Plaintiffs

by eliminating their seniority.

Plaintiffs reasserted their disagreement on legislative

immunity but recognized that the law of the case doc-

trine closed the issue. Plaintiffs argued that defendants

agreed to read the word “continuous” into the CBA to

deny the former captains seniority; that Curry spoke

with the person making the seniority decision; that an

AFSCME official spoke to an administration official;

and that the history of AFSCME and ISEA’s battle to

represent the captains suggested that the AFSCME offi-

cials’ actions were retaliatory. Plaintiffs alleged that

AFSCME used its campaign contributions to influence

No. 10-1389 19

the state officials’ decisions related to the former cap-

tains’ seniority.

The district court granted the remaining defendants

summary judgment on January 15, 2010. The court found

that plaintiffs failed to show evidence of a conspiracy

between AFSCME officials and the Blagojevich admin-

istration. Although the court found that the immunity

doctrines did not apply to the union officials, the court

found that plaintiffs failed to present sufficient evidence

linking the AFSCME officials to state action. The court

found that its prior legislative immunity determination

as to Governor Blagojevich and Curry did not affect the

other state and AFSCME defendants’ liability as to the

captain position’s elimination. Yet the plaintiffs “unsuc-

cessfully attempted to tie the Court’s earlier decision

regarding Blagojevich’s immunity to all Defendants.”

Bagley v. Blagojevich, 685 F.Supp.2d 904, 911 (C.D. Ill. 2010).

The court noted:

The fact that a governor enjoys legislative immu-

nity for making a line item veto in a budget bill

does not necessarily mean that lower level execu-

tive branch officials enjoy the same immunity. In

addition, the Plaintiffs’ statement that all of the

other Defendants are immune is broad enough

to include the AFSCME Officials as well.

The Plaintiffs have attempted to put words into

the mouth of the Court. The Court’s determination

regarding the immunities enjoyed by former

Governor Blagojevich and Curry are each separate

determinations, compartmentalized from the rest

of the case and the rest of the Defendants. Immu-

20 No. 10-1389

nity is not automatically imputed to other Defen-

dants.

The Plaintiffs have thrown up their hands on the

matter of the elimination of the Captain Position.

They have not responded to the State Officials’

contentions on this claim, and they have not made

any alternative arguments. The Plaintiffs have

made no effort to effectively argue their case.

Instead, they point out an earlier disagreement

they had with the Court that is not necessarily

controlling on the issue.

Because plaintiffs failed to respond to the state offi-

cials’ arguments on the remaining issues, the court found

that they waived the issue “by making no real argument on

the claim.” Id. The court went on to find that plaintiffs

failed to present evidence of a causal link between the ISEA

organizing activities and the seniority decision. The court

found that the interpretation of the CBA “was not objec-

tively unreasonable,” id., and that there was not enough

evidence that state officials influenced the seniority

decision. Plaintiffs filed a timely appeal from the final

judgment entered in favor of all of the defendants.

II. Standard of Review

We review a district court’s grant of summary judg-

ment de novo. Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602

F.3d 845, 849 (7th Cir. 2010). Summary judgment is ap-

propriate “if 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.

No. 10-1389 21

P. 56(a). “A genuine issue of material fact arises only if

sufficient evidence favoring the nonmoving party exists

to permit a jury to return a verdict for that party.”

Egonmwan, 602 F.3d at 849 (quoting Faas v. Sears, Roebuck &

Co., 532 F.3d 633, 640-41 (7th Cir. 2008)). We construe

facts favorably to the nonmoving party and grant the

nonmoving party “all reasonable inferences” in its favor.

Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010) (citing

Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010)).

Although this is a § 1983 case alleging retaliation for

the plaintiffs’ union-organizing activities, the former

captains argue that summary judgment should be

granted “quite cautiously in employment discrimination”

cases because issues of intent and motivation are “inher-

ently fact driven.” The former captains cite Sarsha v. Sears,

Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993), where

we noted that the summary judgment standard “is

applied with added rigor in employment discrimination

cases, where intent and credibility are crucial issues.”

In Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396

(7th Cir. 1997), we clarified the propriety of summary

judgment when intent is an issue in employment cases.

We noted that language in some cases implied “that

because intent is a critical issue in employment discrim-

ination cases, summary judgment is unlikely to be ap-

propriate.” Id. (citing Wolf v. Buss (Am.) Inc., 77 F.3d 914,

918 (7th Cir. 1996); Sarsha, 3 F.3d at 1038, 1042; Holland

v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1312-13

(7th Cir.1989)). We explained that “there is not a separate

rule of civil procedure governing summary judgment in

22 No. 10-1389

employment discrimination cases.” Wallace, 103 F.3d at

1396. The cases indicating the importance of intent

mean that “courts should be careful in a discrimination

case as in any case not to grant summary judgment if

there is an issue of material fact that is genuinely con-

testable, which an issue of intent often though not

always will be.” Id.

We explained the “added rigor” phrase further in

Alexander v. Wisconsin Department of Health & Family

Services, 263 F.3d 673, 681 (7th Cir. 2001) (footnote omitted):

Although it is understandable how one might

infer from our regular use of this phrase that we

meant to communicate a more stringent standard

to be used in reviewing employment cases, the

original use of this phrase indicates that it was

merely included to stress the fact that employment

discrimination cases typically involve questions of

intent and credibility, issues not appropriate for

this court to decide on a review of a grant of sum-

mary judgment. Thus, regardless of our inclu-

sion of the phrase “added rigor” in prior cases,

we review a district court’s decision to grant

a motion for summary judgment on a claim in-

volving issues of employment discrimination as

we review any case brought before this court

involving the review of a grant of summary judg-

ment.

As we held in Alexander, our review of the district court’s

grant of summary judgment in this case is no different

from any other case. If a genuine dispute as to a material

No. 10-1389 23

fact exists, such as intent, summary judgment is inap-

propriate. But that genuine dispute must be supported

by “sufficient evidence . . . [to permit] a jury to return

a verdict for” appellants. Egonmwan, 602 F.3d at 849

(quoting Faas, 532 F.3d at 640-41).

III. Analysis

At oral argument, the former captains’ counsel argued

that Governor Blagojevich’s actions after his veto did not

constitute legislative action; rather, such actions are

administrative. Yet at the district court the former cap-

tains’ targeted the line-item veto and the seniority deci-

sion as Governor Blagojevich’s alleged retaliatory

acts. At times the former captains alleged that actions

before the line item veto constituted administrative

actions and the parties disputed whether the “shift com-

mander” position was merely a renamed captain. Yet

the former captains never tied Governor Blagojevich

to any alleged retaliatory action that happened before

or after the veto.

Early in discovery, the evidence the former captains

cited tying Governor Blagojevich to the captain posi-

tion’s elimination consisted of a press release an-

nouncing the veto and an interview on eliminating

IDOC positions. The former captains cited this evidence

because the Governor tried to block his deposition

by arguing that his high-ranking public official status

justified requiring plaintiffs to show that deposing

him would lead to admissible evidence. See Stagman, 176

F.3d at 994-95 (holding that the court did not abuse its

24 No. 10-1389

discretion in finding that deposing Illinois’s attorney

general “would serve no useful purpose”); Olivieri v.

Rodriguez, 122 F.3d 406, 409-10 (7th Cir. 1997) (noting

that busy officials “should not have to spend their time

giving depositions in cases arising out of the performance

of their official duties unless there is some reason to

believe that the deposition will produce or lead to ad-

missible evidence”). And the former captains defeated

Governor Blagojevich’s initial attempts to avoid his

deposition because of the evidence tying him to the

veto. The magistrate judge found on March 28, 2007, that:

. . . Governor Blagojevich is likely to possess rele-

vant information, such that requiring him to sit

for deposition would be reasonable. . . . Plaintiffs

allege that the Governor was either the ultimate

decision maker or at least personally involved in

the decision to eliminate the correctional captain

position. As support, Plaintiffs have provided

the Court with a June 4, 2003 press release from

the Office of the Governor, in which the Governor

personally takes credit for the decision to elim-

inate the correctional captain position, as well as a

newspaper article containing similar comments.

Bagley v. Blagojevich, No. 05-3156, 2007 WL 951921, at *3

(C.D. Ill. Mar. 28, 2007). The district court expressly

adopted the magistrate judge’s opinion in its entirety

on May 10, 2007, denying Governor Blagojevich’s initial

effort to block his deposition. See Bagley, 486 F.Supp.2d

at 787.

The former captains did not show how Governor

Blagojevich participated in the decision to fill some of

No. 10-1389 25

the former captains’ responsibilities with shift com-

manders or any other post- or pre-veto actions that

could be construed as administrative. And the former

captains do not appeal the lower court’s decision that

Blagojevich’s high-ranking public official status justifies

requiring plaintiffs to show that he was “likely to possess

relevant information, such that requiring him to sit for

deposition would be reasonable.” Id. at 789. Because of

this posture, we proceed to determine whether the

district court erred in finding that legislative immunity

covered Governor Blagojevich’s veto. Deciding whether

legislative immunity covers post- or pre-veto acts would

be irrelevant because the former captains did not pre-

sent evidence that Governor Blagojevich partic-

ipated in those decisions.

As for the remaining defendants, the former captains

fail to acknowledge that the district court’s decision

granting legislative immunity to Governor Blagojevich’s

veto (and Curry’s involvement) did not relate to the

other defendants’ involvement in the position’s elimina-

tion. As argued by the former captains’ counsel at oral

argument, the post-veto actions may not be legislative;

rather, decisions such as creating a new position may

be administrative and unprotected by legislative immu-

nity. But the former captains fail to explain why the

district court erred in finding that they waived the

issue related to the non-Blagojevich defendants “by

making no real argument on the claim.” Indeed, the

former captains’ response to the non-Blagojevich defen-

dants’ motions for summary judgment acknowledges

“that if Governor Blagojevich’s actions are entitled to

26 No. 10-1389

legislative immunity, all of the other defendants

are entitled to immunity as to” the captain position’s

elimination. Thus, the former captains pin their case

against the non-Blagojevich defendants’ participation in

the position’s elimination on overturning the court’s

legislative immunity decision. See Reply Br. of Pls’-Appel-

lants at 1 (“This case presents largely a narrow question:

‘is a line item veto by a Governor per se entitled to leg-

islative immunity?’”)

A. Legislative immunity

Our discussion of whether legislative immunity covered

the veto starts with the Supreme Court’s unanimous

Bogan decision.1 “Absolute legislative immunity attaches

to all actions taken ‘in the sphere of legitimate legisla-

1

We acknowledge that there is an argument regarding whether

state officials generally, and Governor Blagojevich in par-

ticular, are entitled to claim legislative immunity pursuant to

federal common law or state law, which in this case would

be Illinois law. Compare Empress Casino Joliet Corp. v. Blagojevich,

Nos. 09-3975 & 10-1019, ___ F.3d ___, 2011 WL 710467, at *7-9

(7th Cir. Mar. 2, 2011), partially vacated on unrelated grounds

by Amended Order Granting Rehearing En Banc (Apr. 13, 2011),

with id. at *18-22 (Posner, J., dissenting) (citing Jorgensen v.

Blagojevich, 811 N.E.2d 652 (Ill. 2004)). We do not comment on

that issue other than to note that the former captains did not

argue that Illinois law applied to the issue of legislative im-

munity and appear content with having the issue decided

under federal law as they do not raise any state law issues

on appeal and appear to have never raised the matter before

the district court.

No. 10-1389 27

tive activity.’ ” 523 U.S. at 54 (quoting Tenney, 341 U.S.

at 376). Whether an action is legislative “turns on the

nature of the act, rather than on the motive or intent of

the official performing it.” Id. Legislative acts include

signing and vetoing bills because they are “integral steps

in the legislative process.” Id. at 55 (citing Edwards v.

United States, 286 U.S. 482, 490 (1932); Smiley v. Holm,

285 U.S. 355, 372-73 (1932)).

In Bogan, an administrator of a city’s health and

human services department received a complaint that an

employee temporarily under her supervision “made

repeated racial and ethnic slurs about her colleagues.” 523

U.S. at 46. As the administrator prepared to fire the

employee, the employee “used her political connections

to press her case with several state and local officials.”

Id. The city council held a hearing and accepted a settle-

ment where the employee was suspended without pay

for 60 days, but the city’s mayor later substantially

reduced the punishment. Id. at 47. As the charges

against the employee pended, the mayor prepared a

budget that froze salaries and eliminated 135 positions

because of an anticipated reduction in state assistance.

Id. The budget also eliminated the administrator’s depart-

ment, of which she was the only employee. Id. The

council adopted the proposal and the mayor signed

the bill, eliminating the administrator’s position. Id.

The administrator sued the city, its mayor, and other

city officials, alleging that her position’s elimination

“was motivated by racial animus and a desire to

retaliate against her for exercising her First Amend-

28 No. 10-1389

ment rights in filing the complaint.” Id. A jury found the

city, its mayor, and another official liable because the

administrator’s speech was a substantial or motivating

factor in her position’s elimination. Id. at 47-48. The

First Circuit affirmed the judgment against the mayor

and the official, holding that the positions’ elimination

was not legislative because the mayor and the official

individually targeted the administrator and “treated

her differently from other managers.” Id. at 54 (quoting

Scott-Harris v. City of Fall River, 134 F.3d 427, 441 (1st Cir.

1997)).

The Supreme Court reversed. The Court held that

“[w]hether an act is legislative turns on the nature of the

act, rather than on the motive or intent of the official

performing it. The privilege of absolute immunity ‘would

be of little value if [legislators] could be subjected to the

cost and inconvenience and distractions of a trial upon

a conclusion of the pleader, or to the hazard of a judg-

ment against them based upon a jury’s speculation as

to motives.’ ” Bogan, 523 U.S. at 54 (quoting Tenney, 341

U.S. at 377). A defendant acts “in a legislative capacity

even though he allegedly singled out the plaintiff for

investigation in order ‘to intimidate and silence plaintiff

and deter and prevent him from effectively exercising

his constitutional rights.’ ” Id. at 55 (quoting Tenney, 341

U.S. at 371). The Court “stripped . . . considerations of

intent and motive” and examined whether the actions

were legislative. Id. at 55.

Bogan first looked at whether the acts were “in form,

quintessentially legislative.” Id. The Court had “little

No. 10-1389 29

trouble concluding that they were.” Id. Introducing,

voting, and signing into law a budget were “formally

legislative” actions even though an executive official (the

mayor) introduced and signed the budget. Id. The

mayor’s actions “were legislative because they were

integral steps in the legislative process.” Id.

That almost ended the matter. But the Court addressed

the plaintiff’s request “to look beyond petitioners’

formal actions to consider whether the ordinance was

legislative in substance.” Id. The Court noted that it

did not need to “determine whether the formally legisla-

tive character of petitioners’ actions is alone sufficient

to trigger legislative immunity because here the ordi-

nance, in substance, bore all the hallmarks of tradi-

tional legislation.” Id. “The ordinance reflected a discre-

tionary, policymaking decision implicating the bud-

getary priorities of the city and the services the city

provides to its constituents.” Id. at 55-56. The action

involved “the termination of a position, which, unlike

the hiring or firing of a particular employee, may have

prospective implications that reach well beyond the

particular occupant of the office.” Id. at 56. The city coun-

cil’s elimination of the department was an action “in a

field where legislators traditionally have power to act.” Id.

(quoting Tenney, 341 U.S. at 379).

The parties’ briefs indicate that we should apply the

two-part test even though Bogan does not explicitly

require an inquiry into the action’s substance. We

will examine the action’s substance because it helps

illuminate what actions are included “in the sphere of

30 No. 10-1389

legitimate legislative activity.” Id. (quoting Tenney, 341

U.S. at 376).

To determine whether an act is legislative in form,

courts look at whether the defendants acted pursuant to

constitutional or statutory procedures. See State Emps.

Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 90-91 (2d Cir.

2007) (concluding that it was unclear whether the alleged

actions were “integral steps in the statutory budget

process”); Gallas v. Supreme Court of Pa., 211 F.3d 760,

774 (3d Cir. 2000) (“In addition, the act must be ‘pro-

cedurally’ legislative, that is, passed by means of estab-

lished legislative procedures.” (quoting Ryan v. Burlington

Cnty., N.J., 889 F.2d 1286, 1291 (3d Cir. 1989))); Macuba v.

Deboer, 193 F.3d 1316, 1321 (11th Cir. 1999) (examining

a county code to determine whether a board of commis-

sioners had authority to take the action that formed a

basis of the claim). Bogan asks whether the actions “were

integral steps in the legislative process.” 523 U.S. at 55.

Without a doubt, the act of vetoing a line item in a bill

constitutes an “integral” step in Illinois’s “legislative

process.” Illinois’s Constitution gives the state’s governor

authority to exercise a line-item veto over appropriation

bills. Ill. Const. art. IV, § 9(d) (“The Governor may reduce

or veto any item of appropriations in a bill presented

to him.”). Bogan also recognized that a governor’s

vetoing of a bill is part of the legislative process. 523 U.S.

at 55 (citing Smiley, 285 U.S. at 372-73). The former

captains do not expressly acknowledge that Governor

Blagojevich’s veto was legislative in form; rather they

forfeit this point by failing to argue it in their opening

No. 10-1389 31

brief. State appellees’ opening brief raises appellants’

forfeiture, Br. of State Defs’-Appellees 25, and appellants’

reply brief does not challenge this. See generally Reply

Br. of Pls’-Appellants 1-10. Thus, we conclude that Gov-

ernor Blagojevich’s action in vetoing the provision

funding the captain position was legislative in form.

This could be the end of the discussion. Yet like the

Supreme Court in Bogan, we will look at the action’s

character to determine whether the action substan-

tively “bore all the hallmarks of traditional legislation.”

523 U.S. at 55. Bogan explained that eliminating posi-

tions qualifies as legislative in substance if it reflects “a

discretionary, policymaking decision implicating the

budgetary priorities of the [government] and the services

the [government] provides to its constituents.” Id. at 55-56.

The decision to eliminate a position is “unlike the hiring

or firing of a particular employee” because eliminating

positions “may have prospective implications that

reach well beyond the particular occupant of the office.”

Id. at 56.

Our precedent supports the distinction between the

firing of an employee and the elimination of a position. In

Nisenbaum v. Milwaukee County, 333 F.3d 804, 808 (7th Cir.

2003), we held that Bogan kept “state and local officials

[from being] mulcted . . . on account of introducing, voting

for, or signing legislation.” Thus, legislative immunity

attached to a county executive’s role of “transmitting

a budget” from the department of public works to the

county board, which enacted the budget, eliminating

the plaintiff’s position. Id. In Strasburger v. Board of Ed-

32 No. 10-1389

ucation, Hardin County Community Unit School District

No. 1, 143 F.3d 351, 355 & n.1 (7th Cir. 1998), we noted

that a school board’s dismissal of an employee through

a reduction in force due to low class enrollments and

the need to “conserve funds” could justify legislative

immunity for the board members under Bogan, but

the board members failed to raise the defense.

Legislative immunity claims are not successful when

the action relates to the firing of a specific individual

rather than the elimination of positions. In Baird v. Board

of Education for Warren County Unit School District No. 205,

389 F.3d 685, 696 (7th Cir. 2004), legislative immunity

did not attach to a school board’s termination of a

principal for reasons cited in an evaluation. The board

argued that the individual board members were

immune because the actions taken to fire the employee—

such as “the determination of rules and procedures,

participation in the pre-termination hearing and in-

dividual decisions to” fire the employee—were legisla-

tive acts. Id. But we found that the activities were not

“taken in the sphere of legitimate legislative activity”

because they involved an employee’s termination, which

was an administrative act. Id. (quoting Bogan, 523 U.S.

at 54).

Other circuits apply the same distinction between

actions that involve the elimination of positions for

policy reasons (legislative actions) and actions that

result in an individual’s termination for reasons that

relate to that individual (administrative actions). In

Bryant v. Jones, 575 F.3d 1281, 1306 (11th Cir. 2009), an

No. 10-1389 33

official developed a budget that eliminated an em-

ployee’s position. The employee alleged that the budget

proposal was “an artifice for what was in fact a retaliatory

personnel decision.” Id. at 1303. The court held that

“[u]nlike the termination of an individual employee,

the elimination of a public employment position ‘may

have prospective implications that reach well beyond

the particular occupant of the office.’ ” Id. at 1306

(quoting Bogan, 523 U.S. at 56). A “decision to abolish

the position” and prepare the budget proposal “is

properly construed as embodying a policy decision

with prospective implications.” Id. at 1306-07. Even though

the “facts obviously suggest an improper motive,” id. at

1307, the court held that a “claim of an unworthy purpose

does not destroy the privilege.” Id. (quoting Tenney,

341 U.S. at 377). Thus, the court refused to consider the

official’s intent or motive in preparing the budget. Bryant,

575 F.3d at 1307.

In Baraka v. McGreevey, 481 F.3d 187, 199 (3d Cir. 2007),

the court granted legislative immunity to a governor

who signed, and a state arts council’s chairperson who

advocated for, legislation eliminating the plaintiff’s

position. The plaintiff, the state’s poet laureate, created “an

outcry” after reading a poem that the governor said

implied that “Israelis had known about the September 11

terrorism attacks.” Id. at 194 (quoting a statement from

the governor’s spokesperson). The court held that the

actions were substantively legislative because the law

“eliminated the position of poet laureate, a position

that was legislatively created. Eliminating the position

34 No. 10-1389

of poet laureate constitutes the type of ‘policy-making’

that traditional legislation entails, and the actions here

were substantively legislative.” Id. at 199 (citing Gallas,

211 F.3d at 774). The officials’ motive and intent were

“immaterial to whether certain acts [were] entitled to

legislative immunity.” Id. at 200 (citing Bogan, 523 U.S.

at 54-55). Consistent with this distinction, Fowler-

Nash v. Democratic Caucus of the Pennsylvania House of

Representatives, 469 F.3d 328, 340 (3d Cir. 2006), held

that because the alleged actions “did not reach beyond

a single employee,” and did not eliminate a position

“thereby affecting future employees,” the defendants

were not acting legislatively when they terminated the

plaintiff. The decision “did not rely on any broad con-

sideration of policy, neither was it directed to creating

a new policy.” Id. The situation was “a textbook example

of a legislator performing an administrative function.” Id.

Governor Blagojevich’s elimination of the captain’s

position through his budget proposal and his line item

veto substantively attempted to reduce management

positions in order to save money. Perhaps the Governor

harbored secret motives, but motives do not matter

in determining whether the action is legislative. See

Bogan, 523 U.S. at 54 (“Whether an act is legislative turns

on the nature of the act, rather than on the motive or

intent of the official performing it.”); Tenney, 341 U.S. at

377 (“The claim of an unworthy purpose does not

destroy the privilege.”). Governor Blagojevich’s veto

targeted cutting costs and eliminating management

positions. Nothing in the record suggests that the

Governor targeted particular employees; rather, he tar-

No. 10-1389 35

geted the positions. Thus, Governor Blagojevich’s line-

item veto was substantively a legislative act and not

administrative.

The former captains argue that state officials did not

perform a budgetary analysis or determine whether

“there was any financial benefit to eliminating” the

captain position. Yet state officials believed they could

save $17 million a year by eliminating 200-plus captain

positions and reduce the total number of IDOC positions

by 162. Governor Blagojevich also explained in a press

release that the decision to eliminate the captain

position was an attempt to reduce “the cost of middle

management we just don’t need.”

The former captains argue that the creation of “a

nearly identical position” after the captain position’s

elimination shows that the decision was administrative.

This contention lacks citation to the record and is a mere

assertion without details supporting the conclusion.

Failure to “show how any evidence in the record tends

to support such a claim” generally results in a waiver

of the argument. Judson Atkinson Candies, Inc. v. Latini-

Hohberger Dhimantec, 529 F.3d 371, 384 (7th Cir. 2008). Yet

the former captains’ opening brief’s fact section details

the issue sufficiently for us to address this contention

because this case demonstrates how this was not a one-for-

one replacement of disfavored employees with more

favored individuals to do the same work.

Some responsibilities overlapped and some former

captains performed duties similar to the shift com-

manders, but not to a degree that the reorganization

36 No. 10-1389

was not prospective. The reorganization reduced the

command structure from twelve to ten positions,

merging major/chief of security, superintendent, and

captain positions into a single major/shift commander

position. Assistant wardens of operations took over

many of the duties performed by the majors/chiefs of

security. The shift commanders also started to regularly

command shifts as the high number of captains at

certain facilities kept captains from regularly com-

manding shifts. This reorganization “reflected a discre-

tionary, policymaking decision implicating the budgetary

priorities” of the government. Bogan, 523 U.S. at 55. The

veto terminated “a position, which, unlike the hiring

or firing of a particular employee,” had “prospective

implications that reach well beyond the particular occu-

pant of the office.” Id. at 56. This elimination of a posi-

tion is “a field where legislators traditionally have

power to act,” id. (quoting Tenney, 341 U.S. at 379), and

plaintiffs have not shown us why this case is otherwise.

The former captains cite Canary v. Osborn, 211 F.3d 324

(6th Cir. 2000), in arguing that we should look closely

at Blagojevich’s actions to determine whether they bore

the “hallmarks of traditional legislation.” In Canary, an

assistant principal sued school board members after

they demoted him. See 211 F.3d at 327-28. The board

members claimed legislative immunity protected their

decision. Id. at 328. On appeal, the Sixth Circuit affirmed

the finding that the board members were not entitled to

legislative immunity because the record did not indicate

that they made the decision for budget reasons. See id.

at 330. The record indicated that the action was not a

No. 10-1389 37

position’s elimination because the board assigned others

to fill the plaintiff’s old position and to fulfill his former

job duties. See id. at 330-31. Canary is distinguishable

from this case in an instructive manner: it involved the

replacement of an individual with other individuals

with the same title or duties. Here, the individuals in

the “shift commander” position took up additional re-

sponsibilities and the action reorganized and streamlined

IDOC’s command structure.

The former captains also cite Acevedo-Garcia v. Vera-

Monroig, 204 F.3d 1 (1st Cir. 2000), in arguing that Gov-

ernor Blagojevich’s decision targeted “individuals cur-

rently employed as Captains.” In Acevedo-Garcia, a

group of current and former city employees sued the

city, its mayor, and others under 42 U.S.C. § 1983,

alleging they were fired or that their work conditions

were made worse for political reasons. See 204 F.3d at 4.

Two ordinances eliminated positions (almost all af-

filiated with the disfavored party) and detailed layoffs.

See id. at 5. The defendants asserted legislative immu-

nity. See id. at 4. The First Circuit affirmed the district

court’s rejection of immunity because the replacement

of the employees with politically connected workers

and the political harassment did not reflect a dis-

cretionary policymaking decision. See id. at 8. The

political discrimination was not “prospective” and

did not “reach well beyond the particular occupant of the

office.” Id. (quoting Bogan, 523 U.S. at 56). Rather, it

“targeted specific individuals affiliated with” the

disfavored party. Id.

38 No. 10-1389

Acevedo-Garcia is distinguishable from this case

because the record does not indicate that the state

officials eliminated the captain position because of

political allegiances. The closest the record comes to

indicating that the former captains’ politics were

involved is Governor Blagojevich’s statement that ap-

parently AFSCME was “concerned that most of these

captains happen to be Republicans and that they

shouldn’t be hired.” This quote does not indicate that

a belief as to the former captains’ political affiliation

drove the state officials’ decision because in the very

next part of the quote the Governor says that the

former captains “should be able to reapply for other

positions in state government and we don’t care what

political party they come from.” And 55 of the former

captains were promoted to shift commander. Of the

other former captains, 83 took lieutenant positions, 64

took correctional officer positions, and 10 accepted

layoffs. Governor Blagojevich’s veto did not target in-

dividuals; rather, it targeted a broad category of em-

ployees who held the same position, not for the employ-

ees’ political allegiances, but to reduce layers of manage-

ment.

Because we find that Governor Blagojevich’s veto was

legislative, we also hold that the district court did not

abuse its discretion in blocking the Governor’s deposi-

tion and limiting Curry’s deposition. In Dombrowski v.

Eastland, 387 U.S. 82, 85 (1967) (per curiam), the Court

held in dismissing a civil suit that legislative immunity

protected legislators engaged in legislative actions “not

only from the consequences of litigation’s results but

No. 10-1389 39

also from the burden of defending themselves.” In

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502-03

(1975), the Court held that civil actions force legislators

to “divert their time, energy, and attention from their

legislative tasks to defend the litigation. Private civil

actions also may be used to delay and disrupt the leg-

islative function.” The court reaffirmed “that once it is

determined that” a legislator is “acting within the ‘legiti-

mate legislative sphere’ the Speech or Debate Clause is

an absolute bar to interference.” Id. (quoting Doe v.

McMillan, 412 U.S. 306, 314 (1973)). In Supreme Court of

Virginia v. Consumers Union of the United States, Inc., 446

U.S. 719, 731-32 (1980) (citations omitted), the Court held

that although separation of powers “justifies a broader

privilege for Congressmen than for state legislators” the

Court generally equates “the legislative immunity to

which state legislators are entitled under § 1983 to

that accorded Congressmen under the Constitution.”

We see no reason why the immunity protecting the Gov-

ernor from liability for his veto (and Curry to the extent

of her involvement in the veto) would not also pro-

tect them “from the burden of defending themselves,”

Dombrowski, 387 U.S. at 85, for their actions “ ‘in the sphere

of legitimate legislative activity.’ ” Id. (quoting Tenney,

341 U.S. at 376).

The former captains cite Rowland, 494 F.3d at 71, in

arguing that the court should decide whether legislative

immunity applied after more discovery. In Rowland, the

court upheld the denial of a motion to dismiss, which

the defendants based partially on legislative immunity.

See id. at 76. The court held that additional discovery

40 No. 10-1389

was “necessary to determine whether defendants’ acts

were indeed procedurally legislative under Bogan.” Id.

at 90. Yet Rowland held that the district court erred in

focusing on “defendants’ motives when concluding that

discovery was warranted.” Id. Rowland also required

discovery to determine whether the actions in ques-

tion were substantively legislative. 494 F.3d at 92. The

pleadings only alleged that the employees were fired “for

illegal reasons,” not that their positions’ budget lines

were eliminated. Id.

The former captains also cite Jaggers v. City of Alexandria,

No. 08-5213, 2009 WL 233244, at *5 (6th Cir. Feb. 2, 2009)

(unpublished) for its holding that legislative immunity

could not be determined on a complaint’s face. There, a

city council rejected plaintiffs’ development plan. The

developers sued the city and the council members under

42 U.S.C. § 1983. See id. at *2. The council members

moved to dismiss on legislative immunity grounds. Id.

The court held that nothing in the record established

that the development plan’s rejection was legislative

and not “managerial or administrative.” Id. at *5. Although

the council members had authority to disapprove

of development plans, there was “no allegation or evi-

dence . . . establishing that the [legislative] procedures”

were the procedures used “rather than their managerial

or administrative powers.” Id. Thus, discovery was neces-

sary to determine whether these actions were legislative.

See id. The court also held that discovery was necessary

to determine whether the actions were substantively

legislative, or that the “decision evidenced broad-

based policy decisions.” Id.

No. 10-1389 41

The former captains claim that additional discovery

is necessary to determine whether Blagojevich acted

legislatively. But the former captains do not explain

how deposing the Governor (or Curry more extensively)

would lead to such evidence. Rowland does not give the

former captains an automatic right to depose Governor

Blagojevich; rather Rowland requires additional dis-

covery when the pleadings do not explain how the

alleged action was performed. 494 F.3d at 92 (“Plaintiffs

do not allege in their amended complaint that

defendants ‘terminat[ed] the budget lines’ that would

have funded their positions or that defendants elim-

inated the positions through other means.” (citation

omitted)). We know how the Governor’s actions con-

tributed to the captain position’s elimination: Governor

Blagojevich vetoed legislation funding the position.

As noted above, the former captains failed to present

evidence connecting Blagojevich to other actions

and waived arguing that the other non-Blagojevich de-

fendants participated in the captain position’s elimina-

tion in non-legislative capacities. Procedurally, Governor

Blagojevich vetoed the captain position’s funding

pursuant to his state constitutional authority. Substan-

tively, the evidence shows that the veto of the captain

position’s funding was pursuant to a broad-based policy

targeting certain positions believed unnecessary. Both

Rowland and Jaggers also involved motions to dismiss

and are thus materially different from this case where

the parties had ample opportunities for discovery on

whether the captain position’s elimination was an ad-

ministrative or legislative act.

42 No. 10-1389

The district court did not err in finding that legislative

immunity protected Governor Blagojevich’s veto of the

captain position’s funding, nor did it err in finding that

the former captains waived their claim against the other

non-Blagojevich defendants “by making no real argu-

ment on the claim.”

B. Seniority Decision

The former captains raise three areas of evidence to

support their argument that the district court improperly

found that there was insufficient evidence of causation

on whether the seniority decision was retaliatory: (1) that

state officials agreed to read the CBA language in contra-

vention to what it says in an effort to punish the

former captains; (2) that AFSCME officials’ contact with

a Blagojevich administration official and Curry’s con-

versations with a CMS official suggest that defendants

influenced the seniority decision; and (3) that the

district court ignored the battle between AFSCME and

ISEA over representing the captains.

When IDOC eliminated the captain position, 64 former

captains took correctional officer positions. AFSCME

opposed giving seniority credit to the former captains for

the time the former captains spent in the officer’s RC-6

bargaining unit. AFSCME argued that the RC-6 CBA

determined seniority based on their “continuous length

of service,” even though the CBA does not include the

word “continuous” in explaining the seniority calcula-

tion. The RC-6 CBA states (emphasis supplied):

No. 10-1389 43

Seniority for RC-6 and 9 shall, for the purposes

stated in this Agreement, consist of the length of

service of an employee with their department in an

AFSCME bargaining unit(s), except when a previ-

ously excluded position enters a bargaining unit

pursuant to labor board procedures, seniority for

an employee in that position shall consist of the

employee’s total length of service with their depart-

ment.

IDOC refused to change its plans so AFSCME filed a

grievance that proceeded to CMS. CMS determined that

the state’s position was not viable. AFSCME and IDOC

entered an agreement on November 18, 2003, that stipu-

lated that the former captains demoted into the RC-6 unit

would receive seniority based on “their length of the

continuous service . . . beginning with their most recent

return to the RC-6 AFSCME bargaining unit.” The former

captains allege that state and AFSCME officials agreed

to read “continuous” into the CBA to harm them.

Yet the agreement to read “continuous” into the CBA

language was not so unreasonable as to suggest an

attempt to harm the former captains. The language

taken as a whole suggests that “length of service” essen-

tially means “continuous length of service” because

the same provision calculates another group of employ-

ees’ seniority based on “the employee’s total length of

service with their department.” Without reading the

term “continuous” into the first category, the term “total”

in reference to the second category becomes redundant.

The former captains also do not contest that the provi-

44 No. 10-1389

sion has been interpreted to read “continuous length of

service” in previous situations. The AFSCME defendants

also presented evidence that AFSCME proposed the

provision to prevent non-bargaining unit employees

moved back into the unit from receiving prior service

credit. Previously, existing members were laid off

because they accrued less total seniority than former

management employees. Plaintiffs’ only argument

against this evidence is that the agreement’s “clear lan-

guage” contradicts this reading. The provision’s alleged

clarity aside, plaintiffs do not contest AFSCME’s rea-

sons for proposing the provision.

That the provision governing the seniority calculation in

the CU-500 bargaining unit (covering lieutenants) includes

the phrase “continuous” does not control the reasonable-

ness of the interpretation of the RC-6 CBA language. The

CU-500 CBA states (emphasis supplied):

Seniority shall, for the purpose of layoff and recall,

be continuous service as currently defined and

administered by the Rules of the Director of Cen-

tral Management Services. Seniority for all other

purposes shall be the continuous length of service in

the affected employee’s classification, except that

employees employed in the CU-500 bargaining

unit as of July 1, 1989, shall have his/her length of

service prior to July 1, 1989, whether continuous or

not, in his/her affected classification counted

toward his/her seniority.

The CU-500 CBA seniority calculation turns on the

phrase “continuous,” while the RC-6 CBA seniority

No. 10-1389 45

calculation turns on the phrase “total.” The RC-6 CBA

determines seniority on whether the employee’s length of

service is either “the employee’s total length of service” or

simply “the length of service of an employee.” The CU-500

CBA determines seniority by either the length of service

“whether continuous or not” or “the continuous length

of service.” That two contracts use different words

to delineate the seniority calculation—and that CMS

eventually agreed with an interpretation favoring

AFSCME—does not provide sufficient evidence that

reading the CBA language in AFSCME’s favor was an

effort to harm the former captains.

The former captains cite a meeting AFSCME official

(and appellee) Henry Bayer had with Blagojevich’s chief

of staff Alonzo Monk to discuss the seniority issue. Bayer

testified that the issue was “a very, very hot issue for us”

because “these people were going to be coming into

our bargaining unit and bringing in seniority, which

might potentially enable them to bump one of our mem-

bers who has weekends off.” Bayer’s deposition sug-

gests that he met with Monk to protect the interests of

existing AFSCME members. Nowhere does Bayer indicate

that he met with Monk to punish the former captains.

Bayer also testified that CMS chief counsel for labor

relations Nancy Pittman made the decision on how to

interpret the CBA and that he could not get Curry

to change the administration’s position on the seniority

issue.

The former captains point to Curry’s acknowledg-

ment that she spoke to Pittman about the grievance as

46 No. 10-1389

evidence that CMS did not act independently. But

nothing about Curry’s testimony suggests that she influ-

enced Pittman. Curry said she talked to Pittman about

the grievance to get information about the case’s

progress and the ultimate decision. Curry testified that

Pittman resolved the grievance on her own and “on the

merits of the case.” The former captains argue that if

CMS acted independently, Curry would have had “no

reason” to talk to CMS. The former captains overstate a

meeting’s significance. As deputy chief of staff, Curry

oversaw a review of Illinois agencies’ organizational

structures. Curry worked with IDOC personnel directors

in 2003 to identify IDOC positions to eliminate and con-

solidate. There are many reasons for Curry to meet with

Pittman but there is no evidence that Curry met

with Pittman to influence her decision.

The former captains only briefly mention their claim

against the AFSCME officials. Because the former

captains sued the AFSCME officials in their individual

capacities, the former captains had to prove that the

AFSCME officials were “willful participant[s] in joint

action with the State or its agents.” Dennis v. Sparks, 449

U.S. 24, 27 (1980); accord Lugar v. Edmondson Oil Co., 457

U.S. 922, 937 (1982) (holding that a person could be a

state actor “because he has acted together with or has

obtained significant aid from state officials”).

AFSCME and ISEA’s competition to represent the

captains is not sufficient evidence that the AFSCME

officials’ communications with state officials regarding

the seniority issue were retaliatory. The former captains

No. 10-1389 47

argue that AFSCME “went as far as to file intervention

petitions seeking to represent the Captains” demonstrating

“the history of the battle over who would represent the

Captains.” But the former captains do not cite evidence

that a desire to harm the former captains motivated

the AFSCME officials. The evidence indicates that

AFSCME officials acted to protect existing members. The

former captains’ reply brief argues that a quid pro

quo existed because AFSCME’s financial support of

Blagojevich’s campaign meant that it “wanted some-

thing in return.” We can reasonably infer that AFSCME

expected something in return for its campaign contribu-

tions, but that alone does not reasonably lead to the

inference that what AFSCME officials wanted in return

was retaliation against the former captains.

The former captains allege that the AFSCME officials

“engaged in a conspiracy with the State Officials” based

on Bayer’s communications with state officials and “the

resolution of the union grievance against” the former

captains. Communications with state officials and a com-

plaint’s resolution against the former captains but in

favor of existing AFSCME members is not sufficient

evidence to demonstrate a conspiracy. The former

captains fail to cite any evidence suggesting that a desire

to punish the former captains motivated the AFSCME

officials’ actions. The AFSCME officials’ communications

with state officials and the resolution of the grievance

in AFSCME’s favor certainly suggest that the AFSCME

officials attempted to influence state officials, and per-

haps their efforts caused the state officials to resolve

the grievance in their favor. But that is where the reason-

48 No. 10-1389

able inference ends. The former captains failed to show

that a genuine dispute exists regarding the AFSCME

officials’ intent in influencing state officials.2

IV. Conclusion

We A FFIRM the district court’s judgment.

2

Because we find that the AFSCME officials’ conduct did not

constitute state action, we do not address the AFSCME offi-

cials’ arguments that they are immune under the Atkinson

doctrine, see Atkinson v. Sinclair Ref. Co., 370 U.S. 238, 247-49

(1962), or the Noerr-Pennington doctrine. See United Mine

Workers of Am. v. Pennington, 381 U.S. 657, 670 (1965); E. R.R.

Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,

140-45 (1961).

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