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).
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
Id. at 355-56, 96 S.Ct. at 2680-81.
The Court also reasoned that a patronage dismissal effectively
imposed an unconstitutional condition on the receipt of a
governmental benefit and therefore came within the rule of Perry
v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570
(1972). The Supreme Court stated:
Elrod, 427 U.S. at 359, 96 S.Ct. at 2682 (citations omitted)
(emphasis added). The Court concluded, therefore, that a
non-policy making government employee cannot be discharged or
threatened with a discharge solely because of his or her
political party affiliation. Id. at 372, 96 S.Ct. at 2689. The
Court reaffirmed this general principle in Branti v. Finkel,
, 517, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980).
This Court must conclude, therefore, that a discharge solely on
the basis of an employee's political affiliation constitutes a
violation of the first amendment.
B. Failure to Hire
The Court agrees with those cases which hold that the failure
to rehire a non-policy-making employee because of the employee's
political affiliation constitutes a violation of the first
amendment. Akin to a discharge case, the employee may feel
compelled to compromise his political beliefs to assure
reappointment or rehire. See Comment Patronage and the First
Amendment After Elrod v. Burns, 78 Colum. 468, 475 (1978).
Further, the employee "may
feel compelled at the risk of his job to work actively for the
reelection of his party and, in particular, of his principal."
Id. (footnote omitted). Finally, while an employee may not have
a constitutionally protected right to be rehired, he does have an
expectation of future employment. Thus, under either the failure
to rehire or discharge scenario, the plaintiff states a valid
42 U.S.C. § 1983 claim.
II. QUALIFIED IMMUNITY DEFENSE
"Government officials performing discretionary functions, as
here, are shielded from liability for damages in a 42 U.S.C. § 1983
suit unless their conduct violated clearly established
statutory or constitutional rights of which a reasonable person
should have known." Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982). The Supreme Court has not addressed
when a constitutional right becomes clearly established nor to
which court one must look in determining whether a right is
clearly established. Id. at 818 n. 32, 102 S.Ct. at 2738. Must
the Supreme Court have had determined the right, or can one or
more lower court decisions on point make the right clearly
established? What if the right has been upheld in other circuits
but not addressed by our circuit? The Seventh Circuit has
recently stated that reliance on Supreme Court decisions alone
might be inappropriate because they are infrequent and this
infrequency could convert the qualified immunity into absolute
immunity. Benson v. Allphin, 786 F.2d 268, 275-76 (7th Cir.
In the instant case, the Court has determined that both
discharging a non-policy-making employee and failing to rehire a
non-policymaking employee for political affiliation reasons
violates the first amendment. The Court must now determine if
these rights were clearly established at the time of the incident
The Court is convinced that a non-policymaking employee's right
to not be discharged for political affiliation reasons was
clearly established at the time of incident in question. Both
Elrod and Branti directly so held and both cases were decided
well before the incident in question. Therefore, the qualified
immunity defense would not apply to a discharge case that
occurred within the relevant time frame.
On the other hand, the Court does not believe that the right
not to be denied reappointment because of political affiliation
was clearly established. As indicated earlier, neither the
Supreme Court nor any court in this district has decided the
question. The few courts that have addressed the issue are not in
agreement. Compare Ramey and Reed with Brady. While today the
scale tips in favor of the cases that have recognized the right,
in late 1982 or early 1983, the scale was more balanced. The
cases that have recognized the right have done so by extending
the Elrod-Branti principle. Yet in Mitchell v. Forsyth, ___ U.S.
___, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court
indicated that officials were not required to anticipate the
extension of existing legal principles. Thus, in a failure to
rehire case the qualified immunity defense would bar the
Obvious from the above discussion is that the defense in this
case turns on whether the defendants discharged the plaintiff or
failed to rehire him. To support the assertion that the
plaintiff's termination from employment constituted a failure to
rehire, the defendants refer to letters sent to the plaintiff
confirming his appointment to various jobs for specific periods
of time. The defendants also submit the affidavit of the
Personnel Officer of the Illinois Racing Board. In his affidavit,
the Personnel Officer states in part:
3. The personnel file of Charles Norman Cox indicates
the following employment with the Illinois Racing
a. April 17, 1973 to November 15, 1973 Cox was
employed as a urine taker.
b. In December 11, 1984 Cox was rehired by the
Illinois Racing Board as a revenue inspector and
served in such position until October 6, 1981.
c. Cox then became a mutual inspector.
d. On December 15, 1981, the Executive Secretary of
the Illinois Racing Board, David Hopper, sent Cox a
letter informing him that he was not being rehired
for the next season.
e. On December 23, 1981, Executive Secretary Hooper
sent Cox a letter stating that he was being rehired
on a rotating basis as a mutual inspector. . . .
f. Mr. Cox was rehired on December 1, 1982 and
employed until March 20, 1982.
g. Cox was appointed to be a veterinary technician
from March 26, 1982 until November 6, 1982.
(Document No. 25) (emphasis added).
According to the defendants, therefore, the plaintiff was a
seasonal employee whose job terminated at the end of the season
defined in the confirmation letters. Thus, rather than firing
Norman Cox, the Racing Board merely failed to rehire him for
The plaintiff counters this assertion by claiming he was
discharged. To support this contention, the plaintiff submitted
an affidavit that states in part:
1. It had been the practice of the Illinois Racing
Board to retain employees of the Fairmont
Racetrack from one season to the next, as long as
there were jobs available.
2. In November, 1982, it was my understanding that I
would continue in my employment at the Fairmont
Racetrack when the track was open, and there were
(Document No. 31)
In further support of plaintiff's claim that he was not merely a
seasonal employee the Racing Board failed to rehire, the
plaintiff refers to a letter dated October 21, 1982 allegedly
sent by the Illinois Racing Board to the plaintiff. This letter
states in part.
I regret to inform you that because of the cutback
you will not be assigned to the Southern Illinois
Trotting Corporation meeting at Fairmount Park. . . .
It is difficult to let good people go.
(Document No. 31) (emphasis added). The plaintiff argues that the
language of this letter and the very act of sending the letter
negates the defendants' contention that his termination occurred
with the ending of a season. Instead, the letter indicated that
the plaintiff was "let go" or dismissed and that he had a reason
to expect continued employment by the Racing Board.
The plaintiff's arguments and the contents of his personnel
file support the contention that a question of fact remains as to
whether the Racing Board's termination of plaintiff's employment
constitutes a dismissal or a failure to rehire. Therefore,
because the question of fact is outcome determinative, the
defendant's motion for summary judgment should be denied.
A denial of the defendants' motion because a question of fact
remains with respect to the qualified immunity defense would
appear to contravene the rationale for the Harlow decision. In
Mitchell, the Supreme Court stated that "Harlow thus recognized
an entitlement not to stand trial or face the other burdens of
litigation, conditioned on the essentially legal
question. . . . The entitlement is an immunity from suit rather
than a mere defense to liability; and like an absolute immunity,
it is effectively lost if a case is erroneously permitted to go
to trial." 105 S.Ct. at 2816. In this vein, the Mitchell Court
held that a district court's denial of a claim of qualified
immunity is an appealable final decision.
This Court does not believe that the qualified immunity defense
must always be decided prior to trial. The defense could, as
here, turn on a question of fact. In such cases, Harlow cannot be
read so as to change the operation of Fed.R.Civ.P. 56. See
McSurely v. McClellan, 697 F.2d 309,
321 n. 20 (D.C.Cir. 1982). In fact, the Mitchell court qualified
its holding by saying that the district court's denial was
applicable to the extent that it turn on an issue of law. 105
S.Ct. at 2817. Thus, the Supreme Court implicitly recognized that
the defense could hinge on a question of fact.
The Court emphasizes its ruling. The Court denies the
defendants' motion for summary judgment because an issue of
material fact remains. The Court is not necessarily denying the
qualified immunity defense. If the jury finds that the defendants
discharged the plaintiff, the defense would fail. If however, the
jury found that the defendants merely failed to rehire the
plaintiff, the defense would bar liability.
Finally, the Court feels compelled to discuss two related
points. First, the failure to rehire or discharge labels appear
to be mere form or substance. Yet, the law requires the officials
to know these distinctions when clearly established
constitutional rights turn on them. Second, in a related vein,
maybe the qualified immunity defense should bar such suits where
the officials actions are so fact sensitive. To a certain extent,
this Court is holding the defendants to a judgment call which the
Court itself cannot make on summary judgment. In other words,
taking the state of the law as outlined above, because the Court
cannot conclusively say that the incident was a failure to rehire
rather than discharge, maybe the Court should not hold the
defendants potentially liable for failing to draw the same
conclusion. Under this approach, the defendants would be immune
when the law is unclear, or when the law turns on the application
of unclear facts. However, unlike the former situation, the
defendants have all the facts necessary to draw the correct
As a house-cleaning matter, on September 25, 1985, the Court
denied the defendants first summary judgment motion. That motion
raised the statute of limitations argument under Wilson v.
Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The
Court held Wilson retroactive, but still denied the defendants'
motion because a question of fact remained as to when the
plaintiff learned of his termination. On April 3, 1986, the
Seventh Circuit in Anton v. Lehpamer, 787 F.2d 1141 (7th Cir.
1986), held that Wilson was not to be applied retroactively.
Therefore, the Court supplements its original opinion with the
Accordingly, the Court DENIES the defendant's motion for
summary judgment (Document No. 24).
IT IS SO ORDERED.
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