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.
II. SUMMARY JUDGMENT
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.
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
2. Count I: Discharge in Retaliation for Exercise of First Amendment
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
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 to
tell the truth if called as a witness.
h. Drafting, circulating and publishing poetry, and
other writings, relating to DCFS and the children
served by DCFS.
i. Religious beliefs and publications about
j. opposing and/or refusing to cooperate and support
the placement of children with families who were
politically powerful when it was not in the best
interest of the children.
k. Ryan's communication with the press regarding
actions of DCFS management.
l. Communication opposing the hiring and/or refusing
to support the continued employment of unqualified
employees who came from politically powerful
Plaintiffs claim the numerous acts of punishment by the Defendants were
due to Plaintiffs exercising their rights under the First Amendment by
speaking and protesting the action of officials and employees of DCFS as
well as other public officials or persons acting in concert with the
Defendants. Defendants filed a motion for summary judgment claiming
that: 1) Plaintiffs have failed to link their discharge and other
retaliatory actions to their protected first amendment conduct; 2) the
described activities do not constitute protected speech; 3) the
Pickering balancing test favors the defendants; and 4) Defendants are
entitled to qualified immunity.