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May 12, 1986


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 judgment.

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).

Where the moving party has met its initial burden and the opposing party asserts the existence of a question of fact, the Seventh Circuit has identified where summary judgment is proper. The Court must determine whether the non-moving party has established that there is a genuine issue as to the fact.

  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
  factual issue.

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).


A. Discharge

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
  interests. Existing

  employees ...

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