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May 7, 1997


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 hearing.

The remaining claims are grounded solely on the First Amendment rights of speech and religion. At the close of Plaintiffs' evidence, it becomes clear that no reasonable jury could find in their favor and Defendants, therefore, are entitled to judgment as a matter of law.

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 reincarnation.

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 Services) Investigator.

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 require discipline.

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 conducted.

On July 10, 1991, Villiger gave Gillespie a good evaluation and recommended a 4.5 percent raise. No mention of misconduct was raised in the evaluation.

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 20, 1991.

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."


  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 checks could be
  performed; 4) permitted DCFS to force an agreement to
  terminate parental rights in exchange for
  discontinuation of monitoring; 5) pressured client
  into surrendering child; 6) permitted Ryan to offer
  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) permitted
  Ryan to misappropriate DCFS funds and falsify a
  contract; 10) failure to enter into a written contract
  with a counselor; 11 & 12) permitted misappropriation
  of funds; 13) sale of poetry books during work hours,

  employees to attend autograph parties; 14) made it
  mandatory for administrative staff to leave
  administrative meetings at 2:00 p.m. on work days and
  had business manager meet him at motel bar; 15)
  intimidation of staff, abuse of authority, would sit
  at his desk and write poetry or do nothing but sit and
  look out the window; became angry when told there were
  no funds to re-carpet office; and 16) personal
  long-distance phone bills charged to DCFS.

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

Plaintiffs sought injunctive relief against DCFS and injunctive relief and damages against each individual defendant in his or her individual capacity. Plaintiffs sought: 1) $1,000,000 for compensatory damages and $1,000,000 for punitive damages, with interest, jointly and severally against each individual Defendant; 2) reasonable attorney fees and costs, with interest; 3) that Ryan be restored to her position of Assistant Regional Administrator and that Gillespie be restored to his position of Regional Administrator of the Springfield Region or a comparable position; 4) that any documents of an adverse or negative nature concerning Plaintiffs' activities be expunged from the state files and destroyed; 5) that Plaintiffs' work evaluations be processed immediately and allow wage increases and increased pension benefits be awarded retroactively with interest to each Plaintiff; 6) that an injunction be issued to prevent any of the individual Defendants or anyone under their supervision from further retaliating against Plaintiffs or any of its employees due to protected activities.


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.

A. Standard

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. 1987).

B. Analysis

1. Eleventh Amendment

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 the case.

2. Count I: Discharge in Retaliation for Exercise of First Amendment Rights

To recover on a First Amendment retaliation claim, the plaintiff must prove: "1) the speech engaged in was constitutionally protected under the circumstances; and 2) that defendants retaliated against him because of that speech." Gorman v. Robinson, 977 F.2d 350, 354 (7th Cir. 1992). After plaintiff meets the initial burden that the conduct was constitutionally protected and that it was a substantial or motivating factor in the defendant's decision to discharge, the burden shifts to defendants to prove that the plaintiff would have been discharged even if the protected conduct had not occurred. Conner v. Reinhard, 847 F.2d 384, 393 (7th Cir. 1988), cert. denied 488 U.S. 856, 109 S.Ct. 147, 102 L.Ed.2d 118 (1988).

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
  the agency.
  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
  Springfield region.
  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 ...

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