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MYERS v. HASARA

June 8, 1999

CYNTHIA MYERS, PLAINTIFF,
v.
KAREN HASARA AND GAIL DANNER, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge.

  OPINION

The motion to dismiss was denied.

Discovery occurred.

Now, Defendants' motion for summary judgment must be allowed.

I. BACKGROUND

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 license.

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 license.

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 quo.*fn4

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 Parsons'.

The specifics of the conversation which ensued are somewhat disputed. Myers asserts that in response to Schmidt's questioning, she informed him that Parsons' did not meet the requirements for securing a retail food service license, that Parsons' possessed an agricultural commodities license, that Parsons' was in conflict with the applicable health regulations, and that the City was' not going to take any action against Parsons'. Myers claims that in response to a comment by Schmidt regarding potential liability if a consumer were to sue Parsons', she informed him that, from her experience, a property owner is usually included in such a lawsuit. Myers argues that at all times during her conversation with Schmidt, she was merely attempting to truthfully answer his questions and was relaying the City's official policy regarding Parsons'.

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 letter provided:

  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 ...


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