United States District Court, Central District of Illinois, Springfield Division
February 28, 2002
JACOB L. DEHEVE, PLAINTIFF,
ANN PRICE AND RENEE CIPRIANO, DEFENDANTS.
The opinion of the court was delivered by: Scott, District Judge.
This matter comes before the Court on Defendants Ann Price and Renee
Cipriano's Motion for Summary Judgment. DeHeve claims that Defendants
violated his First Amendment rights when they refused to hire him for a
maintenance position at the Illinois Environmental Protection Agency
(IEPA). The parties have adequately briefed the issues. The Court
therefore denies the Defendants' request for oral argument. The
uncontroverted evidence establishes that DeHeve chose to support the
Republican Party. There is no evidence that his political affiliation
with the Republican Party adversely affected his application for the
position at issue. The Court therefore grants the Defendants' Motion for
STATEMENT OF THE FACTS
In 1996, DeHeve was looking for a job with the State of Illinois. He
asked his sister for help.*fn1 His sister was a precinct committeeman
for the Republican Party in Sangamon County, Illinois. She told him she
would look into it. Shortly thereafter, DeHeve got a six month contract
to work as a security guard with the Illinois Department of Mental
Not long after that contract expired, Defendant Ann Price left a
message on DeHeve's answering machine that she w as calling about a job
at IEPA. Price is the Manager of Human Resources at IEPA. DeHeve called
his sister; she said that she would talk to Irv Smith about the
position. Smith is Chairman of the Sanagamon County, Illinois, Republican
Party. DeHeve did not know Smith's position, but knew Smith was a "big
shot" in the Party. DeHeve called Price back. Price told DeHeve
that there was a maintenance position at IEPA. DeHeve interviewed for the
position and was hired. DeHeve believes that he was considered for the
temporary position because of his sister's efforts within the Republican
DeHeve learned at the interview at IEPA that the maintenance position
was technically a temporary position. He would actually be employed by
Alice Campbell Temporary Service. IEPA employees, however, selected him
for the job and supervised him. DeHeve began work on February 3, 1997. He
worked 37 = hours a week. He w orked a day shift.
On June 16, 1998, DeHeve secured an evening dispatcher job at the
Illinois Emergency Management Agency (IEMA). His shift at IEMA was from
4:00 p.m. to 12:00 a.m. He did not use political connections to secure
this job. At some point in 1999, a person with more seniority than he at
IEMA elected to take the evening dispatcher shift. This meant DeHeve had
to w ork the day shift. This interfered with his maintenance job at
IEPA. DeHeve and the other IEM A employee agreed to split the day and
evening shifts. DeHeve was then able to continue to work at IEPA for 21
hours per week.
DeHeve regularly told Price and others at IEPA that he w as
interested in a permanent position at IEPA. In the fall of 1999, DeHeve
learned that a permanent position in a maintenance department at IEPA
would be opening up. The opening was posted on November 16, 1999. He
asked about transferring to the position from IEMA, but was told that was
not possible. He applied for the maintenance position as an outside
applicant. He had a grade A score on the civil service exam and had a
DeHeve learned from employees at IEPA that a man named Lance Bauman
would be hired for the IEPA maintenance position. Bauman was w orking at
the Secretary of State's office. Bauman did not apply for the job as an
Bauman had contacted a friend in Governor George Ryan's office to see
about the possibility of a transfer to a position in an office under the
Governor. Ryan, a Republican, had previously been Secretary of State. The
current Secretary of State, Jesse White, is a Democrat. Bauman's friend
in the Governor's office contacted IEPA about considering Bauman for the
position. The IEPA is under the control of the Governor. Bauman ultimately
secured the position through an interagency transfer from the Secretary
of State's office to the IEPA. As a result, the IEPA did not need to
consider outside applicants such as DeHeve for the position.
DeHeve went to speak with Price on D ecember 8, 1999, to find out why
he would not get the job. According to DeHeve, Price told him that the
Governor himself called her about the position. Price said that she
contacted the Governor or the Governor's office about DeHeve's interest
in the job, but she was told that if she did not keep her nose out of it
she would lose her job.*fn2
Price advised D eHeve to contact Irv Smith. DeHeve contacted Teresa
Starling, his precinct committeeman for the Sangamon, County, Illinois
Republican Party. She told him to contact Republican headquarters. On
December 9, 1999, DeHeve spoke to a person named Brenda at Republican
headquarters. She said she would get him an interview and would call him
back. She never did.
Both DeHeve and Bauman supported the Republican Party, although Bauman
was more active. Bauman worked on several of Ryan's campaigns. He put up
signs in yards, walked in parades, walked door to door, bought tickets
for fund raising events, and made contributions to Ryan's campaigns.
DeHeve put up signs in his own yard, bought a ticket in 1997 to a Ryan
fund raising event, sent Ann Price $25 as a contribution for a Ryan fund
raising event, and made a $10 contribution to the Republican Party. In
1997, Price had sent DeHeve two tickets to the above referenced Ryan fund
raising event. She wanted him to purchase the tickets. He returned the
tickets to Price with a note in which he explained that he bought a fund
raising ticket at IEMA. He sent her the $25 contribution with the
On December 20, 1999, DeHeve resigned from his position at IEPA. His
fellow employee at IEMA would no longer agree to split the day and evening
shifts with him. She had more seniority and preferred the evening shift.
He thus had to work full-time on days at IEMA and could no longer work the
temporary job at IEPA. He then brought this action under
42 U.S.C. § 1983. He named Price in her personal and official
capacities. He named IEPA Director Renee Cipriano in her official
capacity only to secure prospective injunctive relief.*fn4
DeHeve claims that Defendants violated his First Amendment rights by
not hiring him because of his political affiliation. The state may not
discriminate against a person in hiring because of his political
affiliation. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
Such discrimination violates the individual's First Amendment right to
associate with the political party of his choosing. In Rutan, plaintiff
James Moore alleged that the state of Illinois refused to hire him
because he did not support the Republican Party. The Supreme Court
stated, "If Moore's application was set aside because he chose not to
support the Republican Party, as he asserts, then Moore's First Amendment
rights have been violated." 497 U.S. at 79.
Defendants have moved for summary judgment claiming that no evidence
indicates that they discriminated against DeHeve because of his political
affiliation. At summary judgment, the Defendants must present evidence
which demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The Court must
consider the evidence presented in the light most favorable to DeHeve.
Any doubt as to the existence of a genuine issue for trial is resolved
against the Defendants. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). Once the Defendants have produced evidence showing that they
are entitled to summary judgment, DeHeve must present evidence to show
that issues of fact remain. Matsushita Elec. Ind. Co. Ltd., v. Zenith
Radio Corp., 475 U.S. 574, 576 (1986). In this context, DeHeve must
present evidence that his political affiliation or non-affiliation was a
substantial or motivating factor in the Defendants' decision not to
hire him as a maintenance worker at IEPA. Mt. Healthy City Sch. Dist. Bd. of
Ed. v. Doyle, 429 U.S. 274, 284 (1977); Nelms v. Modisett, 153 F.3d 815,
818 (7th Cir. 1998).*fn5 DeHeve has failed to meet this burden.
There is no evidence that DeHeve's affiliation with the Republican
Party was a motivating factor in the decision not to hire him for the
maintenance position at IEPA. If anything, the affiliation helped his
chances to get the job. DeHeve believes that Price contacted him in 1997
for the temporary maintenance position at IEPA at least in part because of
the intervention of his sister, a Republican Party precinct committeeman.
When a permanent position opened up, Price told DeHeve that she called
the Governor's office to inform it of DeHeve's interest in the position.
Representatives in the office of Republican Governor Ryan, however,
selected Bauman instead of DeHeve for the position. DeHeve then sought
recourse through his Republican Party committeeman when he discovered
that a different Republican supporter would receive the position. This
time, DeHeve's Republican affiliation did not get him the job, but there
is no evidence, "that his application was set aside because he chose" to
support the Republican Party. 497 U.S. at 79. Rather, the evidence
indicates that Ryan merely picked a different Republican supporter for
DeHeve argues that the Defendants' use of political considerations in
hiring violated DeHeve's rights. The Court disagrees. The Rutan line of
cases stand for the proposition that persons acting under color of law
violate individuals' First Amendment rights when they use public
employment decisions to coerce individuals to adopt particular political
positions or affiliations or to punish individuals who elect to affiliate
with an opposing parties or political positions. Elrod v. Burns,
427 U.S. 347, 357 (1976) ("Patronage, therefore to the extent it compels
or restrains belief and association is inimical to the process which
undergirds our system of government and is `at war with the deeper
traditions of democracy embodied in the First Amendment.'" quoting
Illinois State Employees Union v. Lewis, 473 F.2d 561, 576 (7th Cir.
1972))(Brennan, J., plurality opinion), Branti v. Finkel, 445 U.S. 507,
517 (1980) ("To prevail in this type of an action, it was sufficient, as
Elrod holds, for respondents to prove that they were discharged `solely
for the reason that they were not affiliated with or sponsored by the
Democratic Party.'" quoting Elrod, 427 U.S. at 350.); Rutan, 497 U.S. at
79; O'Hare Truck Service v. City of Northlake, 518 U.S. 712, 721 (1996).
DeHeve presents no evidence that he was either coerced into supporting
Republicans or punished because of his political affiliation. DeHeve
implies that Price may have been punishing him because he once declined
to buy fund raising tickets from her. DeHeve sent Price $25 and bought a
ticket for the fund raiser from someone at IEMA. No evidence, however,
indicates that Price held any animosity toward DeHeve because of this.
Rather, she contacted the Governor's office to inform it of DeHeve's
interest in the maintenance position. That is not the actions of a
person who wanted to harm DeHeve.
Further, DeHeve's evidence, if believed, shows that Price had no
control over the decision. Representatives of the Governor's
office called IEPA representatives and told them to hire Bauman. Price
stated that her job was threatened when s he even mentioned DeHeve's name.
Her attitude toward DeHeve was irrelevant to the decision.
DeHeve's political affiliation with the Republican Party did not
adversely affect his chances to get this job. DeHeve's evidence indicates
that persons in the Governor's office wanted a Republican supporter for
the position; they simply wanted a different Republican supporter.
DeHeve's political affiliation therefore was not a substantial or
motivating factor in the Defendants' decision not to hire him as a
maintenance worker at IEPA. Mt Healthy, 429 U.S. at 284. The Defendants
therefore did not violate DeHeve's First Amendment rights.
DeHeve cites two cases for the proposition that an individual may
maintain § 1983 action against persons of the same political party
who made employment decisions based on political considerations: Vickery
v. Jones, 100 F.3d 1334 (7th Cir. 1996), and McCloud v. Testa, 97 F.3d 1536
(6th Cir. 1996). The Vickery opinion does not so hold, and the McCloud
opinion does not apply to DeHeve's situation. The Vickery Court did not
address the issue of same party affiliation. The Court addressed whether
the principals in the Rutan case extended to protect temporary
Jones, 100 F.3d at 1338-40, 1346-48. Because the Court did not address
the issue, the case has no precedential value on the issue presented
here. See Natl. Cable Television Ass'n, Inc. v. Amer. Cinema Editors,
Inc., 937 F.2d 1572, 1581 (D.C. Cir. 1991). The McCloud Court held that
when parties split into non-ideological factions, a person may not be
discriminated against because he belonged to the faction that was out of
McCloud, 97 F.3d at 1536. DeHeve has presented no evidence of any
factions in the Republican Party in Illinois, or that he was affiliated
with a group of Republicans that were out of favor. The McCloud case is
Therefore, the Defendants' Motion for Summary Judgment (d/e 53) is
ALLOWED. The Defendants' Motion for Oral Argument (d/e 67) is DENIED. All
other motions are DENIED as moot. Judgment is entered in favor of
Defendants and against Plaintiff Jacob DeHeve. This case is closed.
IT IS THEREFORE SO ORDERED.