The opinion of the court was delivered by: Foreman, Chief Judge:
This matter is before the Court on defendant's Motion for
Summary. Judgment (Document No. 24). On March 1, 1985, plaintiff
brought this action under 42 U.S.C. § 1983 claiming the
defendants, Governor James Thompson and individual members of the
Illinois Racing Board, denied him of his right to exercise his
political beliefs as guaranteed under the first amendment, and
that defendants denied him of his due process rights under the
fourth amendment by discharging him from his job.
In their motion for summary judgment, the defendants contend
that the qualified immunity doctrine shields them from the
plaintiff's § 1983 claim, and that the plaintiff has failed to
state a claim upon which relief may be granted. In support of
these contentions, the defendants make a two-tiered argument.
First, the defendants state that Mr. Cox's termination from
employment was a failure to rehire or hire him and not a
discharge. Second, the defendants contend that it is not a
violation of the constitution to fail to hire or to fail to
rehire an individual because of his or her political affiliations
or beliefs, and, therefore, the plaintiff has not stated a claim
upon which relief may be granted. Alternatively, defendants argue
that, even if the Court finds that a government official violates
a constitutional right by failing to rehire an individual for
political reasons, this right is not "clearly established" and,
therefore, the qualified immunity doctrine protects the
defendants from liability in this case.
The plaintiff argues that the Court should deny the motion for
summary judgment for two reasons. First plaintiff contends that
the qualified immunity doctrine does not apply in this case
because the rights asserted by the plaintiff are clearly
established constitutional rights. Second plaintiff contends that
the classification of his termination as a dismissal, a failure
to rehire, or as a failure to hire creates a question of material
fact. Therefore, this Court should deny the motion for summary
Summary judgment is appropriate only where the record shows
that "there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56. The party moving for a summary judgment has the
burden of establishing the lack of a genuine issue of material
fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th
Cir. 1984). The Court must view the evidence, and the reasonable
inferences to be drawn therefrom, in the light most favorable to
the party opposing summary judgment. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
To create a question of act, an adverse party
responding to a properly made and supported summary
judgment motion must set forth specific facts showing
that there is a genuine issue for trial. . . . A
party may not rest on mere allegations or denials of
his pleadings; similarly, a bare contention that an
issue of fact exists is insufficient to raise a
Posey v. Skyline Corp. 702 F.2d 102, 105 (7th Cir.), cert.
denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
Furthermore, the disputed fact must be material, that is, it must
be outcome-determinative under the applicable law. Egger v.
Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied,
464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).
As an initial matter, the Court notes the following. First, the
Supreme Court in Mitchell v. Forsyth, ___ U.S. ___, 105 S.Ct.
2806, 2816, 86 L.Ed.2d 411 (1985), has hinted that when the
qualified immunity defense is raised the only inquiry the
district court need make is whether "the legal norms allegedly
violated by the defendant were clearly established at the time of
the challenged action. . . ." See also Benson v. Allphin,
786 F.2d 268, 279 (7th Cir. 1986). Previously the Seventh Circuit has
stated in Egger v. Phillips, 710 F.2d 292, 314 n. 27 (7th Cir.)
(en banc), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d
262 (1983), that "to dispose of the case solely on the ground
that at the time of the alleged constitutional violation the
right in question was not clearly established would leave the
status of such a right in limbo." See Nahmod, Constitutional
Wrongs Without Remedies: Executive Official Immunity, 62 Was
U.L.Q. 221, 259 (1984). This Court need not enter this debate
because the defendants have moved for summary judgment on the
alternative ground that the plaintiff's complaint fails to state
a claim. Therefore, the Court will first ascertain whether the
plaintiff's complaint states a recognized claim under 42 U.S.C. § 1983.
Second, the plaintiff alleges that the defendants discharged
him because of his political party affiliation. The defendants
have raised in response, and have supported with the appropriate
documentation, that the Court should characterize the plaintiff's
claim as a failure to rehire or hire the plaintiff rather than as
a discharge claim. The Court will therefore determine the
sufficiency of the complaint based on both a failure to rehire
and a discharge theory. The Court does not believe that this case
falls into the failure to hire theory simply because it is
undisputed that the plaintiff previously worked for the
defendants. For a good discussion of a failure to hire claim see
Avery v. Jennings, 786 F.2d 233 (6th Cir. 1986).
I. FAILURE TO STATE A CLAIM
In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547
(1976), divided Supreme Court held that the newly elected
Democratic Sheriff of Cook County, Illinois had violated the
constitutional rights of certain non-civil service employees by
discharging them solely because of their political beliefs. Id.
at 362-73, 96 S.Ct. at 2684-89. The Court stated two reasons for
its holding. First, patronage dismissals require employees who
are members of the out-going party to compromise their job
security. Id. at 355, 96 S.Ct. at 2680. In support of this
reasoning, the Court stated:
Since the average public employee is hardly in the
financial position to support his party and another,
or to lend his time to two parties, the individual's
ability to act according to his beliefs and to
associate with others of his political persuasion is
constrained, and support for his party is diminished.
Conditioning public employment on partisan support
[also] prevents support of competing political