Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 C 5079--Charles R. Norgle, Judge.
Cudahy, Ripple and Kanne, Circuit Judges.
In this case Darrell Farmer, a probationary employee with the Illinois Department of Corrections (the "DOC"), attempts to assert an infringement of constitutionally-protected interests through a tangled web of procedural and state law problems. Farmer brings this action under 42 U.S.C. § 1983. He alleges that upon completion of his probationary period, he was wrongfully denied certification in retaliation for his decision to run for political office. Farmer claims that in taking this retaliatory action, the defendants violated his first amendment rights to freedom of speech and association, and his fourteenth amendment right to due process.
The district court granted defendants' motion to dismiss, holding (1) that Farmer was collaterally estopped from raising his substantive claims because they had already been litigated in a concurrent state proceeding, and (2) that Farmer could not invoke fourteenth amendment procedural protections because as a probationary employee he had no protectable property interest in continued employment. We differ somewhat from the district court in our recognition that Illinois has moved to extend property rights to some probationary employees. We nonetheless affirm, because Illinois law does not now recognize such rights in employees in Farmer's position.
On December 17, 1984, Farmer was hired as an Apprehension Specialist by the DOC. Farmer alleges that he received his job in return for his political support of defendant Linda Williamson (an Illinois State Representative), who interceded with defendant Jay Delicandro (a Governor's Aide "in charge of patronage") to get Farmer his job. Farmer then commenced a six-month probationary period.
The Illinois Administrative Code requires that probationary employees in Farmer's position receive two evaluations--one at the end of three months, and the other fifteen days before the end of the probationary period. Ill. Adm. Code tit. 80, § 302.270. Following his first evaluation, which was uniformly positive, Farmer was approached by defendant Rocco Biscaglia (Williamson's campaign manager) for additional financial contributions to Ms. Williamson's campaign. Farmer's complaint alleges that he turned Biscaglia down and publicly declared his intention to run against Ms. Williamson in the next election. A co-worker of Farmer's, defendant Reid Paxson, subsequently warned Farmer that he would lose his job if he did not withdraw his candidacy. Farmer did not withdraw. At the close of the six-month probationary period, Farmer's supervisor drew up a second evaluation, rating Farmer positively and recommending certification. At this point, according to Farmer's complaint, defendants Michael Lane (the DOC Director) and Doug Brown (the DOC Deputy Director), acting at the behest of Williamson and Delicandro, ordered Farmer's supervisor to change his positive evaluations. When the supervisor refused, Brown ordered the secretary who typed up the forms to change Farmer's evaluation to show negative performance ratings and a negative recommendation as to certification. Farmer was denied certification and discharged from his job effective June 17, 1985.
Farmer attempted an immediate appeal to the Illinois Civil Service Commission (the "Commission"). After receiving his termination notice, Farmer had also mistakenly received notice that he had been certified. The Commission ruled that Farmer's certification was not effective, and that as a probationary employee Farmer was not entitled to a Commission hearing.
Farmer then initiated proceedings in state court, and on October 6, 1986, filed an amended complaint in four counts. The state court action named as defendants the Commission, the DOC, the Illinois Department of Central Management Services ("CMS"), and Richard McClure (the Director of CMS). The state trial court held a bench trial in October, 1987. Farmer v. McClure, No. 85 CH 6052 (Cir. Ct. of Cook Cty. Oct. 23, 1987) ("Farmer I"). Count I, which requested review of the Commission's decision that it lacked jurisdiction, was dismissed. The state court held for Farmer on Count II (requesting injunctive relief, reinstatement and back pay) and Count IV (requesting mandamus relief). It held for the defendants on Count III, which asserted that Farmer's discharge was in retaliation for political activity, in violation of the Illinois constitution, Illinois statutes and the first and fourteenth amendments of the U.S. Constitution. The state court's order on these counts was stayed pending appeal to the Appellate Court of Illinois.
Because this case involves questions of collateral estoppel and res judicata, it is important to understand clearly the precise nature of the claims in the state court proceeding. Count I (dismissed) requested administrative review of the Illinois Civil Service Commission's decision. Count II (in Farmer's favor) alleged violations of personnel rules contained in the Illinois Administrative Code, and also asserted--without citing directly to any constitutional or statutory provision--that Farmer had been "denied liberty and property without due process." Plaintiff's Second Amended Complaint for Injunctive Relief and Administrative Review at 5, Farmer I, reprinted in Joint Appendix at A-3. In ruling on this count, the state court considered only violations of the Illinois rules and did not discuss any federal due process issues. Count IV (in Farmer's favor) alleged violations of the Illinois Administrative Code and of Farmer's union contract. Here the state court explicitly based its findings on the rules violations and not on the contract theory. Count III (against Farmer) was the only count to overtly raise federal constitutional issues, and it also asserted violations of Illinois statutes and the Illinois constitution. In finding against Farmer on the retaliation issue, the state court refused to limit its decision to McClure and the parties in the state court action. Thus, when plaintiff's counsel asked the state trial judge, "[J]ust for clarification purposes, because there is that matter that counsel eluded [sic] to in the Federal Court, your ruling on the political activities is directed solely toward McClure since McClure was the only part[y] before you, correct?" the judge responded:
I disagree. It was with respect to the agency people, too, because just the same as McClure is stuck with deficiencies in the rules that are made by agency people, . . . if he [Farmer] could make out a case of political hiring or firing on the part of the employing agency, that McClure might ...