The opinion of the court was delivered by: Blanche M. Manning, United States District Judge
Plaintiffs John Schwarz ("Schwarz") and Helen Blank ("Blank") are former employees of defendant Illinois Department of Transportation ("IDOT"). Schwarz and Blank claim that IDOT employees improperly disciplined them and forced them to retire, and Blank asserts that IDOT employees retaliated against her for engaging in constitutionally protected speech. IDOT and the Secretary of the Illinois Department of Transportation, Rick Brown ("Brown"), seek to dismiss their complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that the Eleventh Amendment bars the claims against DOT and Brown in his official capacity. For the reasons that follow, the motion to dismiss is granted in part and denied in part. Specifically, the claims against DOT are dismissed, and the plaintiffs' request for backpay against Brown is stricken, but the plaintiffs may proceed with their claims for prospective injunctive relief as to Brown.
The following facts are drawn from the allegations in Blank and Schwarz's complaint. Until the Summer of 2001, DOT employed Schwarz as a civil engineer and Blank worked for DOT in the Department of Traffic. Defendant IDOT is a department of the State of Illinois; defendant Brown is the Secretary of the DOT; defendant Kenneth Jonak ("Jonak") at all times material hereto was employed by DOT as the Bureau of Chief of Traffic; defendant Giovanni Fulgenzi ("Fulgenzi") at all times material hereto was employed by DOT as Personnel Services Manager; defendant Roy Fonda ("Fonda") at all times material hereto was employed by DOT as Engineer of Operations. The plaintiffs sued Brown in his official capacity and Jonak, Fulgenzi and Fonda in their individual capacities.
On or about June 11, 2001, Fonda called Schwarz into his office and gave Schwarz a copy of DOT's charges against him for willfully allowing misuse of work time and falsification of Blank's timekeeping records. Schwarz was not informed that this was a pre-termination meeting, nor was he informed that he was entitled to representation. Schwarz requested an extension of time to respond to the charges. Nevertheless, shortly after the original deadline for a response, he received a notice of suspension for thirty days without pay pending a decision to discharge.
Schwarz claims that the defendants violated IDOT policies and procedures by bringing False charges against him. He also asserts that the defendants failed to conduct an investigation, use progressive discipline, give him proper notice, allow him to receive legal representation, or provide him with a list of witnesses or copies of any pertinent documents. Finally, he claims that an unbiased, neutral decision maker did not decide whether to bring charges against him.
The fallout from the alleged Schwarz/Blank misconduct was not limited to Schwartz On or about June 21, 2001, Blank was charged with falsification of timekeeping records and conduct unbecoming a state employee. On or about June 24, 2001, the defendants suspended Blank for thirty days without pay pending decision to discharge for conduct unbecoming a state employee and dropped the charge of falsification of timekeeping records. Blank is a union employee and is covered by the Agreement between the American Federation of State, County and Municipal Employees ("AFSCME") and the State of Illinois Department of Central Management Services. Blank contends that the disciplinary action against her violated IDOT's policies and procedures as well as the AFSCME agreement, which requires that disciplinary action against an employee be founded on just cause.
The plaintiffs claim that Jonak initiated the proceedings against them due to personal animosity. They also claim that IDOT investigators did not begin looking into Blank's time records until two weeks after Schwarz was suspended and four days after Blank was charged. According to the plaintiffs, they were treated less favorably than other similarly situated employees because: (1) other IDOT employees who were being investigated for abuse of time records were given notice of their pie-termination meetings and were told they were entitled to representation; and (2) similarly situated IDOT employees charged with conduct unbecoming a state employee were not suspended for thirty days without pay pending a decision to discharge.
Schwarz was forced to retire in disgrace on June 30, 2001, making him ineligible for the consultant's list following retirement. Blank was forced to retire under protest in order to preserve her State paid medical benefits. The plaintiffs subsequently filed a five-count complaint. Schwarz and Blank assert that the defendants subjected them to unequal and discriminatory treatment and thus violated the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983 (Count I/Blank & Count IV/Schwarz) and deprived them of their right to due process of law prior to a deprivation of a property and/or liberty right pursuant to the United States Constitution and 42 U.S.C. § 1983 (Count II/Blank & Count V/Schwarz). In addition, Blank claims that the defendants violated her right to engage in free speech under the First Amendment to the United States Constitution, as applicable to the states by the Fourteenth Amendment, and 42 U.S.C. § 1983 (Count III).
DOT and Brown contend that the Eleventh Amendment prevents the court from exercising jurisdiction over DOT and bars a suit for damages against Brown in his official capacity. Because IDOT and Brown have raised an Eleventh Amendment defense, the court must accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from these allegations in the plaintiffs' favor. See, e.g., Taboas v. Mlynczak, 149 F.3d 576, 580 (7th Cir. 1998). Regardless of whether the court considers the defendants' motion under Fed.R.Civ.P. 12(b)(1) or 12(b)(6), dismissal is properly granted only if it is clear that no set of facts which the plaintiffs could prove consistent with the pleadings would entitle them to relief See Komorowski v. Townline Mini-Mart and Restaurant, 162 F.3d 962, 964 (7th Cir. 1998) (per curiam) (motion to dismiss under 12(b)(1) for lack of jurisdiction); Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th Cir. 1991) (motion to dismiss under 12(b)(6) for failure to state a claim).
According to DOT, the Eleventh Amendment immunizes unconsenting states from suits in federal court and thus bars the plaintiffs' claims against it. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974). The court agrees that it is well-established that the Eleventh Amendment prevents state governments from being sued in federal court under § 1983. See, e.g., Quern v. Jordan, 440 U.S. 332, 345 (1979).
The plaintiffs nevertheless contend that the court can exercise jurisdiction over DOT. In support, they direct the court's attention to Cortez v. Calumet Public School District #132, No. 01 C 8201, 2002 WL 31177378 (N.D. Ill. Sept. 30, 2002), and Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1036 (7th Cir. 1987). The court finds that the plaintiffs reliance on these cases is misplaced because in both of these cases, the plaintiffs ...