The opinion of the court was delivered by: Richard Mills, District Judge:
The Plaintiffs waived the majority of their claims in this lawsuit by
failing to avail themselves of their procedural due process rights, i.e.
failing to appear at the pre-termination hearing and the civil service
But first, the prolix facts of this case.
William Gillespie was the Regional Administrator of the Springfield
Region of the Illinois Department of Children and Family Services
("DCFS") from June 1981 until January 23, 1992, when he was terminated.
Barbara Ryan had been employed by DCFS for 27 years and was the Assistant
Regional Administrator when she retired on December 31, 1991.
Prior to their terminations, both Ryan and Gillespie had excellent work
records and had no prior discipline in connection with their employment.
They administered the Springfield Region jointly from 1984 until their
termination. Not only did Plaintiffs work together, they also established
Sand Dollar Publishing Co. in 1984 to publish Gillespie's works.
Gillespie wrote poetry and wrote books dealing with the subject of
Ryan and Gillespie claim Defendants retaliated against them for a
series of communications and other protected conduct. The Defendants, and
their position at DCFS at the time of the termination, are as follows*fn1:
1. DCFS: an agency and political subdivision of the State of Illinois
established by state statute in order to provide social services to
children and families, to operate children's institutions, and to provide
other rehabilitative and residential services.
2. Sue Suter: Director of DCFS from approximately January 1991 until
after the events in question.
3. Thomas Villiger: Deputy director for DCFS. He is now retired. Ryan
and Gillespie were under his supervision.
4. Garry Veicht: Executive Deputy Director.
5. Michael Horstman: Executive Deputy Director.
6. Patrick Flynn: Child Protective Investigator.
7. Michael Sakolsky: Adoption Worker (caseworker).
8. Ronald Moody: Administrative Case Reviewer (caseworker)
9. Rita Seggelke: Field Office Supervisor and DCP (Child Protective
10. John Henderson: Labor Relations Administrator.
11. Tom Putting: Chief of Personnel.
12. John Bucari: Administrator of Management Services.
In September 1989, Ryan was removed from the Springfield Regional
Office and placed on special assignment. Villiger requested she draft a
Child Welfare Initiative to identify problems and solutions within DCFS.
Ryan sought Gillespie's assistance. Upon completion, Villiger ordered
them to remove all references and criticisms which they described in the
Child Welfare Initiative which would have reflected adversely on his
supervision. He then told them to remove their names claiming Gordon
Johnson would be more receptive if their names did not appear on the
document. Ryan and Gillespie provided an unedited copy to Jess McDonald,
who was, at that time, the Governor's liaison to DCFS.
In December of 1989, a former DCFS client, Linda Gerhardt, claimed that
she was improperly pressured into giving up her youngest child for
adoption by Patrick Flynn. Flynn was under the supervision of Villiger,
not Ryan or Gillespie. According to Plaintiffs, this led to a decision by
Johnson, Villiger, and Horstman, in May 1990, to have the State Police
investigate the handling of the Gerhardt case and the Springfield
Region. Neither Ryan nor Gillespie were informed of the investigation.
A number of other "disgruntled employees" who were allegedly referred
to the police investigators by Villiger and Flynn made statements
concerning Ryan and Gillespie. These employees included Bucari, Moody,
Sakolsky, and Seggelke.
In January 1990, Gillespie and two others selected Frank Melchiorri for
the position of Springfield Regional Business Administrator. Melchiorri
was a veteran, 65 years of age, and had been the Acting Business Manager
for two years. Villiger refused to approve Melchiorri for the position
until Gillespie stated that Melchiorri would file an age discrimination
suit if he was not selected and that Gillespie would testify on his
behalf. In July 1990, Gillespie chose Patti Lynch for the Adoption
Coordinator's position. Again, Villiger refused to approve the
appointment until Gillespie stated that Lynch would file a sex
discrimination suit if she was not appointed and that Gillespie would
testify on her behalf.
In June 1990, Jess McDonald replaced Johnson as Acting Director of
DCFS. McDonald knew of the State Police investigation of the Springfield
Region but was never apprised by anyone that Ryan and Gillespie were
engaged in any wrongdoing.
On January 21, 1991, Sue Suter replaced Jess McDonald as Acting
Director. During the months of December 1990 and January 1991, DCFS in
general and the Springfield Region in particular were the subject of
criticism in the local newspaper, The State Journal-Register. Gillespie
and Ryan suspected the information was being fed to the press by Villiger
and Flynn. They spoke to Horstman about their concerns but claim Horstman
replied that nothing could be done.
In response to this negative publicity, Suter, on January 24, 1991,
asked Villiger to brief her on the Springfield Region. Villiger stated
that the Springfield Region was one of the most difficult to supervise
from the Central Office. The memo was also critical of Ryan and Gillespie
and recommended their removal. Horstman provided a memo to Suter on
January 31, 1991, which summarized the State Police findings and
recommended removing Plaintiffs from their position and transferring them
to the Central Office, unless further information developed that would
In February 1991, Gillespie and Ryan were informed that they were being
removed from their positions as Regional Administrator and Assistant
Regional Administrator, effective immediately. They were ordered to leave
their offices within 24 hours. Villiger informed them that they were
being placed on special assignment. Each was assigned to an old storage
room in DCFS's Central Office with no support staff and no telephone.
Both filed grievances, alleging their reassignment was punitive.
Villiger, Henderson, Suter, and Veicht claimed the re-assignment was a
special assignment due to their special skills. Ryan and Gillespie
regained in this situation from February 1991 until December 31, 1991.
After their removal, special Internal DCFS Task Forces were established
to investigate whether Ryan or Gillespie had engaged in any wrongdoing.
According to Plaintiffs, no evidence of wrongdoing was discovered.
On June 11, 1991, Suter received a partial summary of the State Police
investigation. The State's Attorney of Sangamon County declined to take
any action based on the report.
On June 21, 1991, Veicht directed Henderson to review the State Police
Report and draft charges against Ryan and Gillespie. Among the possible
basis for discipline were 1) Gillespie's contact with Representative
Curran; 2) Ryan's statements to the Chicago Tribune; 3) Gillespie's
poetry; and 4) Ryan's religious beliefs. No independent investigation was
In September 1991, Ryan and Gillespie attended a grievance hearing
continuing to protest their re-assignment. The grievances were denied. On
September 24, 1991, Villiger sent a memo to Tony Jenkins, Deputy Director
of the Bureau of Field Operations, stating that he felt that Ryan and
Gillespie would take their grievance to the fourth level, Central
Management Services (CMS). Villiger was concerned that the persons to
whom Ryan and Gillespie had been assigned were working on projects that
the administration felt would not be appropriate for Ryan and Gillespie
to work on. Thus, there was a major issue regarding future tasks for the
future assignments. Villiger was concerned that unless the issue was
resolved, CMS might rule against DCFS at the fourth level grievance.
A few days after the September grievance hearing, Ryan's husband, who
had been ill, died. On her first day back, Ryan found that the desk and
chair in her office had been removed. After several days, the items were
returned. Plaintiff Ryan claims Villiger was responsible.
On October 2, 1991, the State Police closed their investigation. The
closing document indicated that the case was administratively closed, the
prosecutor declined the case, and adjudication was complete. There were no
conclusions or findings of wrongdoing.
Mac Ryder, the Chief Legal Counsel for DCFS, asked the law firm of
Sorling, Northrup, Hanna, Cullen & Cochran, Ltd. to look at the charges
that had been prepared, for form only. These were returned on December
Suter made the decision to discharge Ryan and Gillespie based on the
charges, the information received from her staff, and the information
contained in the Illinois State Police report. The charges claimed that
Plaintiffs had violated various DCFS rules. To summarize the charges:
1) failure to respond to an attorney's request for
review; 2) failure to change service plan; 3) failure
to require client to give DCFS the names of all people
who visited the home so that CANTS*fn2 checks could
be performed; 4) forcing agreement with client to
terminate parental rights stating that in return, DCFS
would discontinue monitoring another child; 5)
pressured client into surrendering child; 6) offered
client return of two children if parental rights were
surrendered as to the other two children; 7 & 8)
unauthorized use of special service fees; 9)
misappropriation of DCFS funds and falsification of a
contract; 10) failure to enter into a written contract
with a counselor; 11 & 12) misappropriation of funds;
13) sale of poetry books during work hours; 14)
expecting employees under her authority to attend
autograph parties and making it mandatory for
administrative staff to leave administrative meetings
at 2:00 p.m. on work days, requested business manager
meet her at a motel bar; 15) intimidation of staff;
and 16) statement that "children remember being with
God because it had not been nearly as long as they had
seen God as it had for adults."
On December 21, Ryan and Gillespie received an inter-office memorandum
dated December 20, 1991, from John Henderson. It stated that their
pre-termination hearing was set for December 30, 1991, that they would be
given a copy of the charges at that time and that they were entitled to
have representation present. Ryan and Gillespie retained attorney
Patricia Benassi. On December 23, 1991, Benassi requested copies of the
charges against Ryan and Gillespie, supporting documents, and a list of
witnesses. She also asked that the pre-termination hearing be rescheduled
for some time in the middle of January, as she could not attend on
December 30. On December 27, 1991, Benassi received copies of the charges
and approximately 300 pages of documents. She was told that the
pre-termination hearing date would not be changed. Ryan and Gillespie did
not attend the pre-termination hearing on December 30, 1991, claiming
that they would rather not attend than attend without representation and
without a meaningful opportunity to respond to the charges.
On December 31, 1991, Ryan retired from DCFS. On January 2, 1992,
Benassi requested a number of documents to assist her in preparing
Gillespie's response to the charges. On January 3, 1992, Henderson
responded stating that all pertinent documents had been provided.
On January 7, 1992, Gillespie filed a written response to the charges.
On January 16, 1992, Gillespie was suspended pending discharge by Suter.
On January 23, 1992, he was terminated from his employment. Gillespie
declined to proceed before the Illinois Civil Service Commission.
Gillespie claimed that Suter had a Xerox contract with a member of the
Commission and claimed the Commission was "political."
In early 1992, Ryan and Gillespie brought suit separately (their cases
were later consolidated) against the Defendants claiming: 1) their
discharge was sought in retaliation for the exercise of activity and
speech protected under the First Amendment; 2) they were denied their
procedural and substantive due process rights under the Fourteenth
Amendment in that the charges against them were "trumped up"; 3)
Defendants' actions violated the Illinois Whistleblower Protection Act;
4) Defendants' actions constituted the state tort of intentional
infliction of emotional distress; 5) Defendants' actions constituted the
state tort of negligent infliction of emotional distress; and 6)
Defendants defamed them.*fn3
On June 28, 1996, Defendants filed a motion for summary judgment on all
counts. On July 8, 1996, Plaintiffs filed a motion for summary judgment
on their due process and equal protection claims.
Federal Rule of Civil Procedure 56(c) provides that summary judgment
"shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." Fed. R.
Civ. Pro. 56(c); see Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01 (7th
Cir. 1995). The moving party has the burden of providing proper
documentary evidence to show the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). A genuine issue of material fact exists when "there is
sufficient evidence favoring the nonmoving party for a jury to return a
verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
In determining whether a genuine issue of material fact exists, the
Court must consider the evidence in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct.
1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden,
the opposing party must come forward with specific evidence, not mere
allegations or denials of the pleadings, which demonstrates that there is
a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir.
Defendants seek summary judgment on all claims against DCFS pursuant to
the Eleventh Amendment. The parties do not dispute that DCFS is an agency
and political subdivision of the State of Illinois established by state
statute. Furthermore, the Seventh Circuit has recognized that DCFS is a
state agency. Darryl H. v. Coler, 801 F.2d 893, 906 (7th Cir. 1986) ("The
DCFS is a state agency; it was established by state statute and is funded
by the state.")
The Eleventh Amendment bars a suit against a state, in federal court,
regardless of the relief sought, unless the state has waived its immunity
or Congress has overridden it. Brunken v. Lance, 807 F.2d 1325, 1329 (7th
Cir. 1986), citing Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105
S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985). This immunity extends to
state or governmental entities that are considered "arms of the State."
Will v. Michigan Dep't of State Police, 491 U.S. 58, 70, 109 S.Ct. 2304,
2312, 105 L.Ed.2d 45 (1989). Section 1983 does not abrogate the State's
Eleventh Amendment immunity. See Queen v. Jordan, 440 U.S. 332, 340, 99
S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979). Nor has the state or DCFS
waived its immunity. Therefore, Plaintiffs' suit against DCFS violates
the Eleventh Amendment.
Furthermore, neither a state, nor a state department like DCFS, is a
"person" within the meaning of § 1983. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308-09, 105 L.Ed.2d 45 (1989).
Therefore, this Court lacks jurisdiction to adjudicate the Plaintiffs'
§ 1983 claim against DCFS. Defendant DCFS is hereby dismissed from
2. Count I: Discharge in Retaliation for Exercise of First Amendment
Only speech for which the Plaintiffs were disciplined is to be
considered. Wright v. Illinois Dep't of Children & Family Servs.,
40 F.3d 1492, 1500 (7th Cir. 1994). A plaintiff must produce "specific,
nonconclusory allegations" reasonably linking her speech to employer
discipline. Id. The plaintiff must point the court to specific record
evidence demonstrating the required connection between employer
discipline and the speech activity. Id. Plaintiffs claim they were
retaliated against for the following instances of speech/conduct:
a. Communications with Federal Bureau of Investigation
regarding actions of DCFS management.
b. Communications with elected and non-elected state
officials, DCFS officials and management, and other
persons concerning abuses of authority,
mismanagement, malfeasance and other problems within
c. Communications with Representative Michael Curran
between 1987 and 1991 in which Gillespie provided
Curran with information about DCFS, including its
failure to provide adequate services for children, the
problems caused by the administrative split between
DCP and DPO and many other difficulties existing in
d. Drafting and communications about the Child Welfare
Initiative which identified and provided solutions to
problems faced by DCFS in 1989. This information was
communicated to Jess McDonald, the Governor's
Liaison, Defendant Villiger and Ron Davidson, a Deputy
Director of DCFS.
e. Communications with Defendant Horstman and
Defendant Villiger protesting the cessation of
services of a much needed psychologist in the
f. Gillespie's Communications with Defendant Horstman
regarding the impropriety of circumventing and
violating the veteran's preference rules in connection
with the hiring of an employee.
g. Gillespie's communications to Villiger that
employees who were being discriminated against might
file lawsuits and that Gillespie would be compelled ...