The opinion of the court was delivered by: Richard Mills, District Judge.
The motion to dismiss was denied.
Now, Defendants' motion for summary judgment must be allowed.
Cynthia Myers worked for the City of Springfield, Illinois, from June
1986 until June 1997. Initially, Myers worked as an environmental health
inspector in the City's department of public health, but she eventually
was promoted to the position of health services supervisor*fn1. As a
health services supervisor, Myers oversaw the City's food inspection
program, supervised five health inspectors, and personally conducted
health inspections on such businesses as retail food stores, grocery
stores, day care centers, mobile food stands, temporary food
establishments, tanning facilities, and massage parlors operating within
the City of Springfield. Myers' immediate supervisor was Steve Hall who
in turn reported to Gail Danner, the City's department of public health's
interim administrator. Gail Danner reported to Keith Haynes who was the
director of the City's department of public affairs, and Haynes reported
to the City's Mayor, Karen Hasara.
On March 13, 1995, Myers, in furtherance of her normal job duties,
approved an application for an agricultural commodities license for
Parsons' Produce ("Parsons"'). This license allowed Parsons' to sell
fresh fruits and vegetables within the City of Springfield. Parsons' was
a seasonal business which operated out of a large tent erected in the
J.C. Penny's parking lot in Springfield. Shortly thereafter, Myers
inspected Parsons' and completed a food inspection report which cited it
for selling retail food items such as baked goods, jams, jellies, honey,
and packaged vegetables in violation of the Illinois Retail Food Code*fn2.
Specifically, Myers was concerned that these food items were being exposed
to the elements creating the risk of
contamination from insects, rodents, molds, dust, and mildew because
Parsons' was selling these retail food items from, a tent. After
conducting her inspection, Myers met with Hall, Danner, and. Haynes to
discuss her findings.
In early May 1995, Haynes, Danner, Hall, Myers, and Shirley Bohm, an
employee of the Illinois Department of Public Health, conducted an
on-site inspection of Parsons'. After conducting this inspection, Bohm
advised Haynes that Parsons' was violating the State's health
regulations. In a letter sent to Haynes dated May 11, 1995, Bohm expanded
on her conclusion by explaining that Parsons' did, not meet the
definition of a temporary retail food store because it had operated at a
fixed location for more than 14 days and that it did not qualify as a
roadside Market because it sold such pre-packaged products as jars of
honey, jams, and jellies. Therefore, Bohm opined that Parsons' had to
comply with all of the requirements of a retail food store and that
Parsons' was not doing so.
In addition, after the inspection, Haynes asked for and received a
memorandum from Springfield assistant corporation counsel Janis Von
Qualon and a memorandum from Hall regarding Parsons'. In her memorandum
dated May 22, 1995, Von Qualon advised Haynes that at least three reasons
existed why abandonment of the State's health code and adoption of
different regulations for vendors such as Parsons' was irrational.
First, it would require a new code of regulations to be drafted. Second,
the City's health inspectors would have to be educated regarding the
changes and trained to enforce the new provisions. Third, and most
importantly, the City would lose its state certification and the funding
which accompanies it. Likewise, in his memorandum dated May 19, 1995,
Hall informed Haynes that Parsons' did not meet the applicable State and
City health regulations and suggested that Parsons' be limited to selling
agricultural commodities consistent with its agricultural commodities
After receiving this information, Haynes informed Mayor Hasara that he
was of the opinion that serious health code violations existed at
Parsons'. Mayor Hasara then met with Mark Schmidt, who was the assistant
director of the Illinois Department of Public Health, in order to obtain
advice on how to proceed on the Parsons' issue. Although the City's
department of public health continued to review issues surrounding
Parsons' licensing, neither the Mayor's office nor, the City's department
of public health took any further action against Parsons' after May
1995, other than enforcing regulations regarding food handling and
preparation. In October 1995, Parsons' closed for the season.
In March 1996, Parsons' again opened for business inside a tent located
at the J.C. Penny's parking lot. Myers inspected Parsons', and on March
20, 1996, she wrote a memorandum to Danner in which she informed Danner
that she could not approve Parsons' building permit because' it did not
meet the Illinois Department of Public Health's: minimum requirements. In
addition, Myers advised Danner that she was declining to either approve
or disapprove Parsons' agricultural commodities license application
because Parsons' met the definition of a retail food store, not an
agricultural commodities facility. Myers opined that Parsons' should be
required to apply for a retail food license, although she acknowledged
that Parsons' would not qualify for such a license. In response, Danner
informed Myers that she had previously approved Parsons' agricultural
commodities license and that Myers did not need to take any further
action regarding Parsons'*fn3 Accordingly, Parsons'
continued to operate as it had in 1995 under an agricultural commodities
On May 23, 1996, Parsons' filed a second application for an
agricultural commodities license to be used at a second facility operated
at the White Oaks Mall's parking lot. That same day, Mayor Hasara,
Haynes, and Danner met with Mark Schmidt and Dave King of the Illinois
Department of Public Health to discuss Parsons'. At that meeting, Mark
Schmidt guaranteed Mayor Hasara that the City would not lose its State
funding if the City continued to allow Parsons' to operate as it had been
under an agricultural commodities license. Moreover, Mark Schmidt and
King advised Mayor Hasara, Haynes, and Danner that the Illinois
Department of Public Health would not intervene in the Parsons' matter;
rather, the Department would consider the issue to be a local concern.
Accordingly, Mayor Hasara, Haynes, and Danner decided that the City
would not take any action against Parsons' regarding its ability to sell
retail food products under its agricultural commodities license. On May
24, 1996, Mayor Hasara and Danner approved Parsons' application for an
agricultural commodities license for its White Oaks Mall facility.
Although the City allowed Parsons' to sell retail food products under an
agricultural commodities license, Mayor Hasara instructed Haynes and
Danner to ensure that Parsons' remedied all other existing code
violations. Danner informed Myers and Hall that if any problems or issues
arose regarding Parsons' which they felt uncomfortable handling, then she
would address those problems herself and would keep them informed.
Otherwise, Parsons' was going to continue to operate under the status
On May 30, 1996, while acting in her official capacity as a
representative of the City's department of public health, Myers inspected
the "Mandarin Express" which was a restaurant located at the White Oaks
Mall.*fn5 While at the mall, Myers visited its manager, John Schmidt.
During her conversation with John Schmidt, Myers asked him whether he had
read the newspaper article regarding Parsons' Produce*fn6. Schmidt
acknowledged reading the article and began asking her questions about
Mayor Hasara and Danner assert that Myers told Schmidt that Parsons'
was not in compliance with the applicable health regulations because it
did not have a retail food service license. Furthermore, Mayor Hasara and
Danner claim that Myers told Schmidt that the regulations at issue were
not going to be changed and that the mall would be held liable if anyone
were injured as a result of buying' retail food items from Parsons'.
Mayor Hasara and Danner argue that Myers' comments to Schmidt were in
direct conflict with the City's official position regarding Parsons'.
Schmidt informed Myers that based upon their conversation, he was going
to take action against Parsons' because it was the mall owner's policy
that all tenants were to comply with all federal, state, and local laws
in order to keep their lease.
On May 31, 1996, Brian McFadden, Mayor Hasara's chief of staff,
received a letter from Jeff Parsons, the owner of Parsons' Produce. The
It has been brought to my attention by White Oaks
General Manager, Mr. David Faulkner that Cindy Myers,
from City Health department made a visit to mall
office on May 30, 1996. Miss Myers stated to mall
management that Parsons Produce was operating on mall
property without a City Health permit and that White
Oaks Mall would be held responsible for any problems
that may occur. Frankly I'm very upset that this City
Health inspector would go to. such lengths trying to
intimidate myself and the people we do business with.
We run a clean, respectable business and would like to
continue operating in Springfield.
After receiving this letter and becoming aware that Myers spoke to John
Schmidt about Parsons', Mayor Hasara wanted Myers terminated because she
believed that Myers' comments would interfere with the running of the
City's department of public health and because she believed that the
comments resulted in confusion and frustration on the part of the mall's
management as to how to deal with, Parsons'. Although Haynes agreed that
Myers should be. disciplined, he believed that anything more than a few
days suspension would be too severe given Myers' work record.
On June 13, 1996, Myers was given a pre-disciplinary hearing*fn7. On
June 21, 1996, Myers was suspended for five days. Her written notice of
suspension indicated that the reason for her suspension was for violating
civil service rule 48(e): failure to obey a reasonable directive. Myers'
comments to John Schmidt formed the sole basis for her suspension:
Accordingly, Myers has filed the instant suit against Mayor Hasara and
Gail Danner, alleging ...