The opinion of the court was delivered by: Nordberg, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the court on the motions of the
defendants to dismiss the plaintiff's complaint for failure to
state a claim under Federal Rules of Civil Procedure 12(b)(6).
Plaintiff's complaint seeks damages and specific performance
pursuant to 42 U.S.C. § 1983. For the reasons set forth
below, the motions are denied.
The plaintiff, Timothy Augustine, was an employee of the Office
of the Secretary of State of Illinois at the State Drivers
License facility on Elston Avenue in Chicago. At all times
relevant to this case, the defendants were employed as follows:
James Edgar was Secretary of the State of Illinois; Christopher
Mariades was Director of Personnel at the Office of the
Secretary of State; and William Logan was Director of the
Driver Services Department of the Office of the Secretary of
On or about January 29, 1981, plaintiff Augustine's name and
picture were broadcast on the evening news report of a local
television station. He was alleged to have been a part of a
scheme to receive bribes from driver education schools to
obtain driver's licenses.
The next day, Augustine was informed by the Office of the
Secretary of State that he was suspended for 29 days without
pay, pending an investigation by the Office of the Secretary of
State into Augustine's failure to adhere to policies and
standards in the examination of driver's licenses. Prior to the
end of the suspension period, Augustine was informed that he
was discharged from employment at the Office of the Secretary
of State, to be effective on the final day of his suspension.
At the time of the discharge, press releases were issued to the
media from the Office of the Secretary of State. The releases
indicated that the plaintiff Augustine had failed to administer
a vision test and a written examination to an individual.
Defendant Edgar repeated the charge against Augustine in press
The defendants argue several bases to dismiss the plaintiff's
complaint for failure to state a claim on which relief can be
granted. Federal Rules of Civil Procedure 12(b)(6). Defendants
contend that: 1) no constitutional right of the plaintiff has
been violated by defendants conduct; 2) as state officials,
they are immune from liability, if any; 3) there is a lack of
sufficient personal involvement by the defendants on which to
base liability; and 4) the action is actually one against the
State of Illinois and is therefore barred by the Eleventh
Amendment of the Constitution. Defendants contend in the
alternative that the remedy of reinstatement is inappropriate.
The guidelines to be used to consider a motion to dismiss are
clear. A complaint should not be dismissed for failure to state
a claim unless it appears that the plaintiff can prove no set
of facts in support of his claim that would entitle him to the
relief requested. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct.
1079, 1081, 31 L.Ed.2d 263 (1972); Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The
United States Court of Appeals for the Seventh Circuit stated:
"Under the Federal Rules of Civil Procedure, it is well
established that, on a motion to dismiss, a complaint must be
construed in the light most favorable to the plaintiff, the
allegations thereof taken as true; and if it appears reasonably
conceivable that at trial the plaintiff can establish a set of
facts entitling him to some relief, the complaint should not be
dismissed." Mathers Fund, Inc. v. Colwell, 564 F.2d 780, 783
(7th Cir. 1977).
PROTECTED CONSTITUTIONAL INTEREST
Defendants contend that the injury the plaintiff has allegedly
suffered is not one protected by the Constitution and therefore
a claim is not stated under 42 U.S.C. § 1983. To support
their contention, defendants attempt to distinguish cases which
hold that such an injury does state a claim.
In several landmark decisions the United States Supreme Court
has addressed the issue of discharge from state employment
coupled with defamatory remarks about the discharged employee
as a violation of an individual's constitutional interest. In
Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33
L.Ed.2d 548 (1972), the Court recognized that a state's
discharge or refusal to rehire an individual coupled with a
charge which reflects negatively on that individual's
reputation can violate that individual's liberty interest which
is protected by the Fourteenth Amendment. Id., 408 U.S. at
573, 92 S.Ct. at 2707. The Court in Roth distinguished the
facts of the case before it and described a set of facts which
would state a cognizable constitutional claim:
The State in declining to rehire [the plaintiff], did not
make any charge against him that might seriously damage his
standing and associations in the community. It [the state]
did not base the non-renewal of his contract on a charge, for
example, that he had been guilty of ...