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GANNON v. DALEY

April 27, 1983

JOHN GANNON, VICTORIA SIERRA, WESLEY SPRAGGINS, OSCAR NIEVES AND BRENDA PERRY, PLAINTIFFS,
v.
RICHARD M. DALEY, INDIVIDUALLY AND AS STATE'S ATTORNEY OF COOK COUNTY, ILLINOIS, RICHARD DEVINE, INDIVIDUALLY AND AS FIRST ASSISTANT STATE'S ATTORNEY OF COOK COUNTY, ILLINOIS, AND COOK COUNTY, ILLINOIS, A BODY POLITIC, DEFENDANTS.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

MEMORANDUM OPINION

In this lawsuit brought under 42 U.S.C. § 1983 (1976) plaintiffs claim that they were fired from their jobs as administrative assistants employed by the State's Attorney of Cook County, Illinois, because of their political affiliation, in violation of their rights under the first amendment*fn1 and the rule of Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Pending before the court is defendants' motion for summary judgment.

Each of the five individual plaintiffs was affiliated with the Republican party. Each was active in the 1980 re-election campaign of the incumbent State's Attorney of Cook County, Bernard Carey, who was a Republican. State's Attorney Carey lost the election, and defendant Richard M. Daley, a Democrat, was elected and became State's Attorney in December, 1980. In early 1981, each of the plaintiffs was fired.

Defendants claim that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law under Fed.R.Civ.P. 56 for three reasons. First, as a matter of law the court should rule that plaintiffs were not fired because of their political affiliation; second, even if plaintiffs were fired because of their political affiliation, they occupied positions where political factors could constitutionally be used as a basis for employment decisions; and third, that defendants have a qualified immunity from suit which operates as a complete defense to this action.

I

Plaintiffs claim they were fired for political reasons as part of the patronage system in Cook County under which supporters of successful candidates are rewarded with jobs and opponents are punished by losing their government jobs.*fn2 The parties are in essential agreement that plaintiffs must prove that their political affiliation and activities were a substantial factor in their dismissals. If they do, the burden shifts to defendants to prove by a preponderance of the evidence that they would have reached the same decisions as to plaintiffs' employment even in the absence of plaintiffs' political affiliation and activities.*fn3

Defendants claim that the record does not raise an issue of fact as to whether plaintiffs were fired because of their political affiliation. The record shows that plaintiff John Gannon ("Gannon") worked under State's Attorney Carey as a supervisor of clerical services. Deposition of John Gannon 38. Around the time State's Attorney Daley took office, a decision was made by Michael O'Mara ("O'Mara"), who had been an administrator under State's Attorney Carey, to transfer Gannon to the so-called "IV-D unit", which handles marital and child support matters. Deposition of Michael O'Mara 5, 32. In the IV-D program, Gannon's duties were mostly clerical, which made him by his own admission one of the highest paid members of the clerical staff. Deposition of John Gannon 67-70; see also Deposition of Michael O'Mara 81.

During the first months of the new administration, the new first assistant State's Attorney, defendant Richard Devine ("Devine"), conducted a review of the non-legal personnel of the office. Affidavit of Richard Devine ¶ 4. Devine concluded that Gannon was a vastly overpaid and under-productive employee and decided to fire him. Id. ¶¶ 6-7. State's Attorney Daley approved Devine's decision, Affidavit of Richard Daley ¶ 6, and Gannon was fired.

Defendants claim that these facts indicate that Gannon has failed to raise an issue of fact regarding the reasons for his firing.*fn4 However, Gannon has adduced a number of additional facts. For one thing, Gannon is former State's Attorney Carey's brother-in-law. Affidavit of John Gannon ¶ 5. Moreover, Gannon casts doubt on the allegation that his job performance justified his transfer and subsequent termination by submitting Mr. Carey's affidavit which states that Gannon's performance was satisfactory. Affidavit of Bernard Carey.*fn5 Most important, Gannon submits evidence that politics were a factor in his dismissal. After Gannon's dismissal, Devine sent a letter to Gannon's counsel in which he observed that Gannon was not protected from political firings under the decree entered in Shakman v. Democratic Organization of Cook County, No. 69 C 2145 (N.D.Ill. Jan. 20, 1981).*fn6 A trier of fact would be entitled to conclude that the reason Devine alluded to the Shakman decree in his letter was that political considerations did play a role in Gannon's firing. If they did not, Gannon's exemption from the decree's protections would be irrelevant and there would have been no reason for Devine to mention it in the letter. In addition, Gannon's counsel claim Devine told them that Gannon was not fired for any disciplinary reasons but simply because the Shakman decree permitted State's Attorney Daley to put his "own people" in positions such as Gannon's. Affidavit of Edward R. Theobald ¶ 7; Affidavit of Robert V. Boharic ¶ 7.*fn7 Devine admits that he alluded to the Shakman decree at the meeting. Deposition of Richard Devine 138.*fn8

Finally, the report made of Gannon's exit interview by a personnel supervisor indicates that the reason for his termination was not job performance but "change in administration." Plaintiffs' Ex. E.*fn9 A trier of fact might interpret this phrase to refer to Gannon's political affiliation.

The evidence that defendants justified Gannon's firing with reference to the Shakman decree and a "change in administration" creates an issue of fact as to whether Gannon was fired for political reasons.

However, plaintiffs have testified that they were told that political considerations entered into their terminations. For example, plaintiff Wesley Spraggins testified that he was told by Glen Carr ("Carr"), an attorney bureau chief for the State's Attorney, that "there were going to be a number of changes made because [plaintiffs], in fact, had supported or were known to be Republicans." Deposition of Wesley Spraggins 25.*fn10 Soon thereafter, Spraggins and the others were fired. Carr then told him that plaintiffs "were terminated because we were in the wrong political party." Id. at 35. Similarly, Carr told plaintiff Victoria Sierra "your firings and the closings were political in nature." Deposition of Victoria Sierra 92. Carr told plaintiff Brenda Perry and three witnesses,

  I really guess they must have considered you a
  threat and let you go anyway, but I want you to
  know I really wanted to see you stay, but
  sometimes that's the way it goes in politics.

Deposition of Brenda Perry 80-81. Plaintiff Oscar Nieves was told by Irene Hernandez, a Daley supporter and a Commissioner of Cook County, that he would lose his job if he did not support State's Attorney Daley in his election campaign. Deposition of Oscar Nieves 54.

In addition, the termination interview reports for these plaintiffs indicate that the reason for their termination was "change in administration" or "administrative changes" rather than "reduction in force" ...


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