United States District Court, N.D. Illinois
March 16, 2004.
RAY HANANIA and ALISON RESNICK, Plaintiffs,
BETTY LOREN-MALTESE, et al., Defendants
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Alison Resnick and Ray Hanania, former employees of the
Town of Cicera (Cicero), brought this action against Cicero's former
president, Betty Loren-Maltese; members of Cicero's Board of Trustees
(Trustees); Cicero's newsletter, the Cicero Town News; and the Cicero
Town Republican Organization and its newsletter, the Cicero Town
Observer. Plaintiffs also filed suit against their former attorneys,
Jerome Torshen and Torshen, Spreyer, Garmisa & Slobig, Ltd., who were
previously dismissed from the lawsuit See Hanania v.
Loren-Maltese, 56 F. Supp.2d 1010 (N.D. Ill. 1999) aff. 212 F.3d 353
(7th Cir. 21100). Though several counts of the complaint have been
dismissed, numerous counts still remain. In count I plaintiffs allege
that Cicero, Loren-Maltese, and the Trustees retaliated against them for
exercising their rights of free speech, in violation of 42 U.S.G §
1983. Counts II and III are conspiracy claims against all defendants.
Plaintiffs allege intentional infliction of emotional distress against
Cicero and Loren-Maltese in count V and defamation against all
defendants, except Cicero, in count VIII. Finally, in count IX plaintiffs
seek to impose indemnification, alleging that Cicero must pay any damages
for which its employees are liable.
Defendants move for summary judgment on all counts pursuant to Federal
Rule of Civil Procedure 56. In addition, plaintiffs file a partial
summary judgment motion for defendants' advice-of-counsel defense. Before
turning to the parties' arguments on those motions, we must address
defendants' motion to strike certain facts from plaintiffs'
Rule 56.1 statement of additional facts.
Motion to Strike
Plaintiffs filed a 176-paragraph statement of additional facts, from
which defendants want to strike 79 paragraphs. As several judges in this
district have pointed out, motions to strike, while permissible, are
often unnecessary because a party can contest a fact's validity in his
response to the statement See, e.g., Fenje v. Feld,
2003 WL 22922162 at *3 (N.D.Ill. 2003)(finding motions to strike
unnecessary because a statement will be disregarded to the extent it is
not supported); Newsome v. James. 2000 WL 528475 at *3 (N.D.Ill
2000). However, as the defendants have filed the motion, the court will
rule on It. Defendants claim that a large number of these paragraphs are
merely argument disguised as facts. They cite paragraph 17 as an example.
It states, "In the face of growing pressure, Maltese announced on or
about November 8, 1996 that she planned to hire William Kunkle to
Investigate the Specialty Risk overpayments." While plaintiffs'
commentary, "In the face of growing pressure," is unsupported by the
citations provided, Maltese's employment of Kunkle to investigate the
Specialty Risk affair is a supported fact Plaintiffs should take better
care to avoid argument in their statement of facts it only
frustrates a court's identification of the uncontested facts. However,
the court will not strike paragraphs from plaintiffs' statement of
additional facts for containing argument Rather, the court will disregard
that are merely unsupported argument, when reaching its decision on
the motions for summary judgment.
Defendants also argue that numerous paragraphs are not supported by the
record and others are merely speculation and conjecture. The majority of
these paragraphs are supported by plaintiffs' citations; however,
paragraphs 14, 138, 163, 164, and part of 13 are not The article from the
October 25, 1996, edition of the Chicago Sun-Times does not mention John
La Giglio, nor that Loren-Maltese's $300,000 Investment was never repaid,
as paragraph 13 states. The article also fails to support paragraph 14,
The memo and affidavit cited in paragraph 138 do not establish that
Cicero attorney Merrick Rayle was conducting an investigation of
misconduct by Hanania. In paragraph 163 plaintiffs state that defendants
conspired with El Dia; however, neither citation, an El; Dia newspaper
article and Cicero's response to paragraph 3 of the first set of
Interrogatories, supports this assertion. Nor is paragraph 164's
statement, "Maltese and the Board are the municipal policymakers for with
[sic] final policy making authority for the Town of Cicero," confirmed by
Defendants contend that plaintiffs fail to lay a proper foundation for
their opinion testimony in paragraphs 126, 147, 148, and 151. Resnick's
deposition testimony provides proper support for paragraph 126's list of
physical ailments that she experienced after defendants' alleged
retaliation. Given plaintiffs' experience working for the Town of Cicero,
and their exposure to Loren-Maltese, their opinions regarding her
influence and operations support paragraphs 147, 148, and 151.
In their final argument to strike, defendants assert that paragraphs
33, 138, 157 and 158 are based on inadmissible evidence. This argument is
moot because the court struck
paragraph 138 for lack of support in the record and it does not
rely on paragraphs 33, 157 or 158 to reach its decision on the motions for
Defendants' motion to strike paragraphs 14, 138, 163, 164, and
references in paragraph 13 that are not specifically contained in
the October 25, 1996, Chicago Sun-Times article, is granted, but their
motion to strike all other paragraphs is denied.
Once again we summarize the history of this case as told through the
hundreds of pages of pleadings, memorandums, statements of fact and
depositions. Defendant Betty Loren-Maltese was Cicero's town president
from January 1993 until August 2002, when she forfeited her office
following a conviction for her involvement in an insurance fraud scheme.
Both Alison Resnick and her husband, Ray Hanania, worked for the Town of
Cicero during Loren-Maltese's tenure. Hanania was a political and media
consultant for Cicero from 1993 until the fall of 1996, while Resnick was
Cicero's town collector from February 1996 until December 1997.
In October 1996, reporters contacted Hanania regarding subpoenas that
were issued to Cicero. Hanania called Loren-Maltese to discuss the issue,
and they agreed to meet Though the parties disagree over the content of
their conversation, they both admit that by the end of the conversation
Loren-Maltese had fired Hanania.
On October 25, 1996, the Chicago Sun-Times reported that the Federal
Bureau of Investigations was looking into alleged wrongdoing by
Loren-Maltese in connection with Specialty Risk, an insurance carrier for
Cicero. At a Cicero Board meeting four days later, Resnick asked
Loren-Maltese to explain her involvement with the insurance company;
Loren-Maltese declined to do so. Resnick asserts that she and another
trustee introduced a resolution
before the Board to request an investigation into the matter by the
state's attorney. Loren-Maltese, who allegedly opposed the resolution,
decided to hire a private investigator to look into the Specialty Risk
affair. Resnick, along with others in the Cicero government, publicly
criticized this decision.
Resnick, who was appointed town collector in February 1996, to fill a
vacancy, planned to run for the office on Loren-Maltese's ticket in the
February 1997 Republican primary. However, shortly after Resnick spoke
out about Specialty Risk, Loren-Maltese allegedly dropped her from the
Republican slate. Resnick, and two other candidates who spoke out against
Loren-Maltese, formed an opposition slate: the Restore Honesty in Cicero
party. After a contentious campaign during which Resnick and Hanania
criticized Loren-Maltese's policies and accused her of corruption,
Resnick lost the Republican primary. Despite her loss, Resnick's term as
town collector continued until December 1997.
Beginning in December 1996, the Board of Trustees voted to change the
responsibilities of the town collector's office. They eliminated the town
collector's authority over business licenses and pet licenses, and
transferred employees in the office to other departments. In May 1997,
the town collector's office was moved to a smaller area and Resnick was
allegedly denied access to her old office files and equipment. Soon
thereafter, Cicero's director of human resources, Jim Terracino,
terminated Resnick's two remaining employees.
In response to these actions Resnick filed a complaint against
Loren-Maltese, Terracino, and the Town of Cicero, seeking to enjoin them
from interfering with her authority as town collector for the remainder
of her term. On June 4, 1997, Judge Lester Foreman, of the Circuit Court
of Cook County, granted Resnick a temporary restraining order,
restraining Loren-Maltese from "taking any action which would prevent or
impede the Town Collector for the
Town of Cicero from performing the duly designated duties and
activities of that office," and reinstating Resnick's recently-fired
employees. Following a preliminary injunction hearing, Judge Foreman
extended the restraining order and set an expedited schedule for
discovery. On June 10, 1997, the Board passed several ordinances directing
that certain payments be delivered to the town treasurer rather than the
town collector. The Board also passed an ordinance eliminating the staff
positions of Resnick's recently reinstated employees. Resnick's
amended state court complaint alleged that these ordinances altered the
form of government for Cicero, in violation of the Illinois state
After a series of continuances and extensions, the parties agreed to a
settlement The settlement stated that Resnick would dismiss her suit and
finish her term as town collector, without interference. The agreement
also provided that Cicero would employ Torshen, Spreyer, Garmisa &
Slobig to handle a lawsuit, for which it would be paid $225 an hour.
Plaintiffs assert that this agreement was substantially different from an
earlier draft and that Resnick signed it, relying on the advice of her
attorneys. Regardless, on August 20, 1997, the parties signed the
settlement agreement and the suit was dismissed the next day. Though the
agreement stated that Resnick would continue to perform her regular
duties as town collector, including attending Board meetings, she alleges
that Loren-Maltese, through her attorney, suggested that Resnick stay
away from the meetings, and Resnick agreed.
In her affidavit, Resnick maintains that defendants* retaliation
against her continued after the settlement agreement was signed. First,
the Board of Trustees refused to accept her monthly office statements.
Then, on December 9, 1997, the Board declared a vacancy in the town
collector position due to Resnick's unexcused absences from Board
meetings. They immediately filled the position with the appointment of
the town collector-elect Resnick once
again contacted her attorney, who was also representing Cicero in a
different matter. In response to Resnick's premature dismissal from
office, Torshen negotiated for her to receive two weeks salary, which
Resnick accepted. The parties dispute whether this payment was made in
settlement of any claims.
Resnick maintains that defendants' retaliation did not end after she
was terminated. In the 1990s the United States Justice Department sued
the Town of Cicero for violation of the Fair Housing Act The Justice
Department alleged that Cicero enacted a zoning ordinance regulating how
much square footage a dwelling needed to have for each resident, with the
intent to discriminate on the basis of familial status and national
origin. While the case was pending, Cicero's attorney, Mark Sterk,
received three affidavits from an unknown sender. The affidavits, sworn
by three residents of Cicero, stated that Resnick had come to the
residents' homes and told them not to sell to Hispanics. Though
suspicious of the origin of the affidavits, Sterk turned them over to the
Justice Department, in accordance with the rules of discovery. On June
16, 1997, Judge Zagel denied Cicero's motion for summary judgment in the
case. Among the reasons he cited for his decision, Judge Zagel discussed
Resnick's alleged advice not to sell to Hispanics. On December 9, 1997,
Cicero issued a press release announcing the resolution of the case by
consent decree. The press release also stated that Judge Zagel would have
thrown out the case if it had not been for Resnick's comments, that
Cicero would hold her personally responsible for the Justice Department's
suit and would be suing her for the town's legal fees, and that the
taxpayers paid over $300,000 for her bigotry and ignorance. Both the
Cicero Town News and the Cicero Observer printed the same statements in
1997 and 1998. On July 2, 1998, Cicero sent every resident a mailer which
repeated the claim that "Judge Zagel indicated that he would have thrown
this case out had it not been for testimony regarding
comments made by former Town Collector Alison Resnick to a
homeowner planning to sell to a Hispanic family."
From these facts, the following time-line emerges for some of the
events giving rise to Resnick's claims. On October 29, 1996, Resnick asked
Maltese to explain her involvement in the Specialty Risk scandal. In
December 1996, and January 1997, the Board of Trustees passed ordinances
altering the powers of the town collector's office. On June 4, 1997, the
Circuit Court of Cook County granted Resnick a temporary restraining
order against Cicero and Loren-Maltese. On August 20, 1997, Resnick,
Loren-Maltese, and Cicero signed a settlement agreement dismissing
Resnick's state lawsuit involving claims of interference with Resnick's
responsibilities as town collector. After the settlement, on December 9,
1997, the Board declared the town collector's office vacant and replaced
Resnick with the town collector-elect That same day the town issued a
press release announcing the consent decree. Thereafter, statements from
press releases regarding Resnick were reprinted in the Cicero Town News
and Cicero Observer, and on July 2, 1998, the mailer was sent to Cicero
residents. Hanania's claims stem from the events of one day, October
29, 1996, when he spoke to Loren-Maltese about Specialty Risk and was then
As a result of these actions, plaintiffs state that they have suffered
economic and other damages from lost pay and vacation time, extreme
mental anguish, humiliation, embarrassment, physical effects of stress,
and damage to reputation.
Our function in ruling on a motion for summary judgment is merely to
determine if there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). Only
if the evidence on file shows that no such issue exists, and that the
party is entitled to judgment as a matter of law, will we grant the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002).
Defendants argue that they are entitled to summary judgment on all
claims. Some of their arguments apply to several claims, while others
attack individual counts; some arguments apply to all defendants, while
others apply only to certain defendants. We will address the merits of
each argument in turn.
Though we did not dismiss plaintiffs' federal claims against Betty
Loren-Maltese and the Trustees, on the basis of absolute legislative
immunity, in our ruling on defendants' 1999 motion to dismiss, we did
note that we would need to revisit the issue at a later date.
See Hanania, 56 F. Supp.2d at 1014. Now, four years
later, we re-examine this defense. Loren-Maltese and the Trustees argue
that they have absolute legislative immunity from any liability for
damages arising from the alleged harassment of Resnick and her
termination as town collector.
Local legislators, along with federal, state and regional legislators,
are absolutely immune from suit under 42 U.S.C. § 1983, for their
legislative activities. Bogan v. Scott-Harris, 523 U.S. 44, 49
(1998). "Absolute legislative immunity attaches to all actions taken `in
the sphere of legitimate legislative activity." Id. at 54
(citing Tenney v. Brandhove, 341 U.S. 367, 376
(1951)). However, a legislator's administrative or executive acts are not
protected by absolute immunity. Tenney, 341 U.S. at 379. To
determine whether an official's act is legislative, the court must look
to the nature of the act, not the motive or intent behind it
Bogan, 523 U.S. at 54. Defendants argue that their actions were
legislative and therefore protected. While plaintiffs concede that the
Trustees have absolute immunity for their votes
to alter the powers of the town collector, they contest that the
defendants have legislative immunity for their decision to remove Resnick
from office. They also contest that Cicero or Loren-Maltese enjoys
legislative immunity for any of these actions.
An employment decision is generally viewed as administrative, not
legislative. Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988). Some
terminations are not administrative because they result from broader
legislative decisions. In Rateree, the Seventh Circuit found that the
city commissioners' termination of the plaintiff employees was protected
by legislative immunity because it resulted from legislative action
the passage of a budgetary ordinance. Id. at 948, 950.
The Rateree defendants made "public policy choices that necessarily
impact[ed] on the employment policies of the governing body." Id
at 950. Distinguishing an administrative employment decision from a
legislative action, the Seventh Circuit noted that plaintiffs' positions
were eliminated and no one was hired to replace them. Id.
While the parties dispute whether Resnick's termination qualifies as an
administrative or legislative action, they overlook a significant
distinction between her case and the cases cited. Resnick held an elected
office. She was the town collector, a position that also made her a town
trustee. While Resnick was appointed to office, not elected, she was
nonetheless in an elected position from which she could not be fired by a
supervisor. Section 38 of the Cicero Town Charter states that all
officers of the town shall remain in office until new officers have been
elected and qualified. Despite this provision, the Board removed Resnick
from office by relying on an Illinois state statute. Section 1/80-10(c)
of Chapter 60 of the Illinois Compiled Statutes allows a Township Board
of Trustees to declare a vacancy in the office of a supervisor or trustee
if she has five or more consecutive unexcused absences from
regularly-scheduled board meetings. The Cicero Town Charter states that
in the event of a vacancy, the Board can fill the
position by appointment for the remainder of the term. Cicero Town
Charter § 3. On December 9, 1997, the Board of Trustees declared the
office of town collector vacant on the basis of Resnick's absences and
appointed the town collector-elect to fill the position.
The Board relied on these provisions and passed two ordinances in order
to perform an action it did not otherwise have the power to perform
the termination of Resnick as town collector. The defendants
argue that the form of Resnick's removal renders it a legislative action,
but its scope and effect make it more akin to a narrow employment
decision than a public policy action that impacted on employment. Unlike
in Rateree, the Trustees preserved the position of town
collector and filled it immediately after removing Resnick. Their actions
had no impact other than to remove and replace her. Thus, their
termination of Resnick is not entitled to legislative immunity.
Defendants also assert that Loren-Maltese has legislative immunity for
her role in the ordinances that reduced the powers of the town
collector's office. Resnick contends that Loren-Maltese did not perform
any legislative function related to the passage of these ordinances and
therefore is not immune. Despite the fact that she did not vote on the
ordinances, Loren-Maltese did have a legislative role to play. The Cicero
Code states, "The town president shall be president of the Board of
Trustees and shall preside at all meetings of the Board, but he shall not
vote, except in case of a tie, when he shall cast the deciding vote."
Cicero Code § 2-132. Loren-Maltese's presence during the votes for
these ordinances was in fulfillment of her legislative duty, clearly
mandated by the town code. Thus, she was a part of the legislative
process and enjoys immunity for her role in the passage of the
As plaintiff highlights, Cicero does not have the legislative immunity
of its employees. See Owen v. City of Independence,
445 U.S. 622, 638 (1980)("[O]ur decision holding that
municipalities have no immunity from damages liability flowing from
their constitutional violations harmonizes well with developments in the
common law and our own pronouncements on official immunities under §
1983."); Reed v. Village of Shorewood. 704 F.2d 943, 953 (7th Cir.
1983)("And the municipality's liability for such acts extends to acts for
which the policy-making officials themselves might enjoy absolute
immunity because the acts were legislative or judicial in character.");
Weissmann v. Carroll, 2003 WL 685870 at *5 (N.D.Ill. 2003). Thus, even if
the Trustees and Loren-Maltese could have successfully employed absolute
immunity regarding all claims under counts I and II, it would not have
applied to Cicero, Legislative immunity extends only to Loren-Maltese and
the Trustees for their ordinances limiting the powers of the town
Collateral Estoppel and Res Judicata
Next, defendants contend that Resnick restates issues in this case that
were raised in her 1997 state court suit, which was resolved through a
settlement agreement and dismissed with prejudice. Thus, they argue,
collateral estoppel bars these issues. In its opinion on defendant's
motion to dismiss, the court noted doubts about whether issues addressed
in the chancery action could be revisited in this case. See
Hanania, 56 F. Supp. at 1015. Plaintiffs maintain that these doubts are
misplaced because equity demands that Resnick be allowed to relitigate
these matters. The preclusive effect of a state court ruling in a federal
court is a matter of state law. Brokaw v. Weaver. 305 F.3d 660, 669 (7th
Cir. 2002). In Illinois, collateral estoppel requires that "(1) the
issues decided in the prior adjudication are identical to issues
presented for adjudication in the current proceeding; (2) there be a
final judgment on the merits; and (3) the party against whom estoppel is
asserted was a party or in privity with a party in the prior action."
Kalush v. Deluxe Corp., 171 F.3d 489, 493 (7th Cir. 1999). As Resnick
collateral estoppel could only apply to issues arising from
defendants' pre-settlement actions. While she does not contest that the
requirements of collateral estoppel are satisfied, she argues that this
equitable doctrine should not apply in her case.
In Nowak v. St. Rita High School, 197 Ill.2d 381, 390-91,
757 N.E.2d 471, 478 (Ill. 2001), the Illinois Supreme Court stated,
"Even where the threshold elements of the doctrine are satisfied,
collateral estoppel must not be applied to preclude parties from
presenting their claims or defenses unless it is clear that no unfairness
results to the party being estopped." To determine whether application
of collateral estoppel would be fair, a court looks to whether the party
had a full and fair opportunity to litigate the issues in the prior
case. Gray v. Lacke, 885 F.2d 399, 406 (7th Cir. 1989).
Resnick denies that she had a full and fair opportunity to litigate
these issues in her previous action. She claims that the interaction
between Jerome Torshen, her attorney, and the defendants prohibits the
court from finding as a matter of law that she would suffer no unfairness
if the court applied collateral estoppel As the defendants point out,
Resnick's argument is undermined by the fact that the settlement
agreement, which she signed, clearly stated that Torshen would receive a
referral from Cicero. Furthermore, even after the agreement was signed
promising Torshen his referral, Resnick sought out his assistance on
three other matters involving Cicero. Resnick accepted the settlement
agreement, thereby approving the admittedly unusual arrangement between
her attorney and Cicero. Her consent to the referral defeats her argument
that it would be inequitable to grant summary judgment on her claims
stemming from pre-settlement actions.
Resnick asserts that her approval of the settlement terms does not
evidence a full and fair opportunity to litigate because Torshen began
working on Cicero's referral even before she
signed the agreement As proof, she cites Loren-Maltese's statement
that she met with Torshen before agreeing to the settlement; the Board of
Trustees' approval of the referral to Torshen a week before Resnick
signed the agreement; and an August 8, 1997 entry on Torshen's billing
statement to Cicero. But all of these activities are consistent with the
drafting of a settlement agreement that includes a provision that Cicero
will provide Torshen with a referral of work. Before the agreement could
be written it is understandable that Torshen and Loren Maltese would
discuss the referral, the Board would approve it, and Torshen might
research the case that he would receive in lieu of defendants' payment of
his attorney's fees. Ultimately, Resnick knowingly consented to Torshen
receiving the referral as part of her settlement, and so this arrangement
cannot now invalidate the terms of that agreement. Evidence that Torshen
may have agreed to represent Resnick for costs, or that he later made
considerable money from Cicero referrals, or that he believed he had not
made enough money on the original referral as revealed in the smoking
gun letter does not show Resnick was misled regarding the terms
of the settlement agreement. She agreed to dismiss her state court case
in exchange for a completion of her term as town collector without
interference from the defendants. Thus, collateral estoppel bars all of
Resnick's claims which arise out of the defendants' pre-settlement
A similar analysis under res judicata also justifies summary
judgment on plaintiff's pre-settlement claims. As with collateral
estoppel, the court must apply Illinois law on res judicata to
determine its preclusive affect. Hagee v. City of Evanston,
729 F.2d 510, 512 (7th Cir. 1984). Unlike collateral estoppel, which applies
only to issues that were litigated, res judicata applies to both
claims brought and those that could have been brought Id. at
Plaintiffs contend that defendants should not be allowed to argue
res judicata for it is an
affirmative defense they failed to plead in their answer.
Defendants counter that the court has discretion under Federal Rule of
Civil Procedure Rule 15(a) to allow defendants to amend their answer to
include this defense "when justice so requires." The Seventh Circuit has
stated that "[a]s a rule, we have allowed defendants to amend when the
plaintiff had adequate notice that a statute of limitations defense was
available, and had an adequate opportunity to respond to it despite the
defendant's tardy assertion." Jackson v. Rockford Housing Authority.
213 F.3d 389, 394 (7th Cir. 2000). Defendants argue that their res
judicata defense neither surprises nor prejudices plaintiffs because
its factual roots are the same as collateral estoppel, which they did
plead. We agree that defendants' can raise the defense.
In Illinois, courts employ different approaches to determine whether
two different suits constitute the same cause of action, and are thus
barred by res judicata: the proof approach and the transactional
approach. See Welch v. Johnson. 907 F.2d 714, 720 (7th Cir.
1990); Hagee v. City of Evanston. 729 F.2d 510, 513 (7th Cir. 1984).
Res judicata applies under the proof approach if the same
evidence would sustain both suits. Welch, 907 F.2d at 720. Under the
transactional approach, the defense applies if the facts underlying
both suits are the same. Id. Looking to both approaches, the
Seventh Circuit has summarized that courts should make "a comparison
of the factual undergirding of the two cases at issue" to determine
whether res judicata bars the second suit LaSalle Nat. Bank
of Chicago v. County of Du Page, 856 F.2d 925, 933 (7(h Cir. 1988).
In Resnick's case, res judicata could only apply to claims
arising out of defendants' pre-settlement actions, as Resnick could not
have brought claims in her state court suit for harassment that bad not
yet occurred. The factual basis for Resnick's § 1983 and state law
claims, as they relate to the ordinances curtailing the powers of the
town collector's office, is
essentially the same as that for her state court action. As with
collateral estoppel, Illinois courts have declined to apply res
judicata "when its application would work a manifest injustice."
Welch, 907 F.2d at 722. As explained above, though the
arrangement between Cicero and Torshen was unorthodox, Resnick was aware
of the provision and chose to proceed with the settlement dismissing her
case. There is no evidence that she would suffer a manifest injustice by
denying her the ability to relitigate claims stemming from the Board's
ordinances curtailing her powers as town collector.
Accord and Satisfaction
Defendants also maintain that the two weeks vacation pay, which Resnick
accepted following the settlement, acts as accord and satisfaction for
alleged injuries that occurred after the state court case was dismissed.
The record does not support summary judgment on any of Resnick's claims
on the basis of accord and satisfaction. Accord and satisfaction requires
"(1) an honest dispute between the parties . . . (2) a tender of payment
with the explicit understanding of both parties that it is in full
payment of all demands; and (3) an acceptance by the creditor with the
understanding that the tender is accepted as full payment."
Pritchett v. Asbestos Claims Mgmt. Corp., 773 N.E.2d 1277,
1284, 332 Ill. App.3d 890, 899 (5th Dist. 2002). Undisputed facts
do not establish an explicit understanding between the parties that
Resnick's acceptance of two weeks vacation pay settled any claims she
might have against the city. Both Resnick and Torshen state that the
vacation pay was not contingent on her abdication of claims.
Count I § 1983
Count I alleges that Cicero, Loren-Maltese, and the Trustees retaliated
against Resnick and Hanania for speaking out on matters of public concern
in violation of 42 U.S.C. § 1983.
Loren-Maltese and the Trustees argue that they are entitled to
qualified immunity from this claim, as well as count n. Defendants
highlight that plaintiffs' § 1983 claims must be addressed separately
and they put forth several other arguments for summary judgment on each
of their claims: Hanania's speech was not on a matter of public concern,
neither plaintiff can establish a causal link between their speech and
their termination, valid reasons supported plaintiffs' terminations, the
reasons for their terminations were not pretexts and they fail to
establish liability against defendants.
Qualified immunity applies to Loren-Maltese and the Trustees unless:
"(1) the conduct alleged in the complaint sets forth a constitutional
violation and (2) the constitutional standards were clearly established
at the time of the alleged violation." Khuans v. School Dist, 110.
123 F.3d 1010, 1013 (7th Cir. 1997)(citing Johnson v. Fankell,
520 U.S. 911, 914-15 (1997); Lanigan v. Village of East Hazel Crest,
110 F.3d 467, 472 (7th Cir. 1997)). First, we look to Resnick and
Hanania's burden to establish a constitutional violation. To prove a
First Amendment retaliation claim plaintiffs must establish that "(1)
the speech in which the plaintiffs engaged was constitutionally
protected under the circumstances, and (2) the defendants retaliated
against them because of it." Delgado v. Jones. 282 F.3d 511, 516
(7th Cir. 2002(citing Gustafson v. Jones. 117 F.3d 1015, 1018
(7th Cir. 1997)). A public employee's right to speak out on matters
of public concern is constitutionally protected and may only be curbed
if the employer's interest in promoting efficiency outweighs the
employee's interest in free speech. Myers v. Hasara, 226 F.3d 821,
825-26 (7th Cir. 2000).
While the defendants do not contest, for the purpose of their summary
judgment motion, that Resnick's speech was on a matter of public concern,
they do contest that Hanania's speech was a matter of public concern,
arguing that it was merely part of his job as town spokesperson
to discuss the Specialty Risk affair with Loren-Maltese. Hanania
states that on October 28, 1996, he discussed the Specialty Risk
situation with Loren-Maltese and urged her to publicly explain it.
Hanania's speech was a matter of public concern since it addressed
municipal funds, public employees' insurance, and government corruption.
However, finding that the speech involved a matter of public concern does
not require a finding that it is protected. Thus, even though defendants
deliver their argument under the heading "Hanania's speech was not on
matters of public concern," their argument is broader. They contend that
Hanania's speech is not protected because of the nature of his
Defendants rely on Gonzalez v. City of Chicago. 239 F.3d 939
(7th Cir. 2001), to support their assertion that Hanania's
speech was not protected by the First Amendment because it was a required
duty of his job. In Gonzalez. a former Chicago police officer sued the
city and three of his superiors for terminating him in retaliation for
the reports he made as an investigator in the Office of Professional
Standards. Id, at 940. The Seventh Circuit found that even
though police misconduct was a matter of public concern, Gonzalez's
reports were simply the result of this employment duties and were
therefore not protected. Id. at 942 ("Speech which is made In
all respects as part of the employee's job duties is generally not
protected expression of the public employee."). The court was clear that
this holding did not establish a per se rule exempting statements made in
the course of official duties from the protection of the First
Amendment." Id. (quoting Koch v. City of Hutchinson. 847 F.2d 1436
(10th Cir. 1988)). The Seventh Circuit emphasized that Gonzalez "was
`clearly acting entirely in an employment capacity when he made
those reports,'[citation omitted], and that he `could have been fired had
he not produced the reports. . . . `" Delgado. 282 F.3d at 518-19. Its
holding was limited to the routine discharge of employment
responsibilities "where there is no suggestion of public
motivation." Id. at 519.
In Delgado. the defendants argued that the plaintiff police officer's
discussion with his superiors about the criminal activity of a friend of
the chief of police was not protected because the officer had a duty to
report violations of the law. Id, The Seventh Circuit found that
this argument swept too broadly. Id. The court recognized that
the plaintiff was required to report the activity as an officer. However,
how he chose to communicate that information was within his discretion.
Id. It is this use of discretion or judgment in communicating a
matter of public concern that rendered Delgado's communication protected,
where Gonzalez's was not See id.
Reviewing the evidence in a light most favorable to Hanania, we cannot
say that be exercised no discretion in speaking to Loren-Maltese about
Specialty Risk, nor that there was no suggestion of public motivation in
his speech. His speech is distinguishable from Gonzalez's reports, which
were a mandated job responsibility. Nor does the fact that Hanania only
spoke to Loren-Maltese about the issue before his termination affect his
claim. Speech on a matter of public concern does not become less so
because it is communicated privately to one's superiors. See
Delgado. 282 F.3d at 518; Givhan v. Western Line Consol. Sch. Dist.,
439 U.S. 410, 415-16 (1979) ("Neither the [First] Amendment itself nor our
decisions indicate that this freedom is lost to the public employee who
arranges to communicate privately with his employer rather than to spread
his views before the public."). Though it is true that many instances of
Hanania's alleged public speech took place after his termination on
October 28, 1997, this lone conversation with Loren-Maltese is enough to
allow the claim to proceed.
Defendants deny a causal connection between both Hanania's and
Resnick's speech and their terminations. They argue that the mere fact
that plaintiffs' terminations followed their alleged speech regarding
Specialty Risk is not enough to establish a requisite causal connection.
See Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913,
918-19 (7th Cir. 2000)(plaintiffs failed to show causal connection in
retaliation claim where their only evidence was that the defendant
company did not recall them for work three months after they filed age
discrimination charges with the EEOC, though the company did recall
others who filed the same charges). In Hanania's case, the strongest
evidence of a causal connection is timing. His termination did not come
three months after his speech, but, rather, followed immediately.
Resnick's termination also followed her request for Loren-Maltese to
explain her involvement with Specialty Risk, Plaintiffs do not rely on
timing alone to support their argument Loren-Maltese's alleged warning to
Resnick and Hanania that they "better watch out" at the meeting in which
she fired Hanania further supports the connection between their speech
and their terminations, as does Loren-Maltese's statement that actions
taken during the 1997 election campaign would not be forgiven or
Defendants argue that Hanania's job performance and Resnick's failure
to attend Board meetings motivated their terminations. However, the
timing of Hanania's termination, in conjunction with Loren-Maltese's
alleged threat provides more than speculation that a disagreement over
his job performance was not the actual reason for his termination.
Resnick's affidavit, which states that she did not attend Board meetings
at the request of Cicero's attorney, calls into question the defendants'
legitimate reason for her removal as well.
Next, defendants maintain that even if there is a causal link between
plaintiffs' speech and their terminations, defendants did not violate
plaintiffs' constitutional rights because both Hanania and Resnick are
policymaking employees and therefore they can be terminated for their
speech. Generally, after determining that an employee's speech is a
matter of public concern, a court must employ the balancing test from
Pickering v. Board of Education,
391 U.S. 563 (1968), to determine whether the employee's free speech
interests outweigh the employer's efficiency interests. Defendants
contend that the Pickering test is unnecessary when dealing with
policymaking employees. They cite a Sixth Circuit case which holds that
"where an employee is in a policymaking or confidential position and is
terminated for speech related to his political or policy views, the
Pickering balance favors the government as a matter of law."
Rose v. Stephens, 291 F.3d 917, 922 (2002). The Seventh Circuit, likewise,
sees no need to resort to the Pickering test, where a policymaking
employee is terminated for speech related to his political or policy
views. See Bonds v. Milwaukee County. 207 F.3d 969, 977 (7th Cir.
Plaintiffs maintain that the record is too sparse to support a finding
that Resnick and Hanania are policymaking employees and, thus, this
exception does not apply. However, the record is clear that neither the
policymaking employee exception nor the Pickering test applies to
Resnick. Defendants argue that Resnick, as town collector and a town
trustee, was clearly a policymaker and therefore the exception applies.
Resnick was in a policymaking position, but the defendants fail to
acknowledge that this was an elected position from which she could hot be
fired for her speech or otherwise. Defendants quote Regan v. Boogertman,
In support of their argument that Resnick's power to "act as an elected
official is strong evidence that she holds a `policymaking'
position. . . ." 984 F.2d 577 (2nd Cir. 1993). But Resnick did not hold
a position that allowed her to act as an elected official, she
held the position of an elected official. When determining
whether the policymaking employee exception applies, this is
a significant distinction. While Boogertman holds that employees who
exercise the power of elected officials can be terminated for their
speech, it does not hold that elected officials can be terminated for
their speech. The purpose of the policymaking employee exception is "to
ensure that the first amendment's protection not interfere with the
workings of democratic governments and the
ability of duly elected officials to Implement their policies."
Shakman v. Democratic Organization of Cook County,
722 F.2d 1307, 1310 (7th Cir. 1983)(per curiam), cert. denied,
464 U.S. 916 (1983).
The fact that Resnick was appointed to her position, not elected, does
not change the analysis. The Cicero Town Charter does not provide an
exception allowing the termination of individuals appointed to elected
office, nor does it create any other distinctions between those appointed
and those voted in to an elected office. Courts assessing whether the
policymaking employee exception applies in a certain case look to the
nature of the Individual's position. See Americanos v.
Carter, 74 F.3d 138, 141 (7th Cir. 1996). The nature of Resnick's
position did not change as a result of her appointment her
position is an elected office. The policymaking employee exception was
created to aid officials in positions such as hers, when dealing with
high-ranking non-elected subordinates. It was not formulated to justify
the termination of individuals in elected office for their speech. As for
Hanania, even if he is a policymaking employee,*fn1 he does not wholly
lose his freedom of speech, regardless of its content Marshall v.
Porter County Plan Commission, 32 F.3d 1215, 1221 (7th Cir.
1994)("We noted that it was `too big a leap' for the district court to
infer that `once a public employee is put into the confidential-assistant
or policymaker slot, he loses his right of free speech.'") Employer
action is only exempt from Pickering balancing when a
policymaking employee's speech is based primarily on political
motivations. Bonds, 207 F.3d at 978-79 ("The policymaking
employee exception does not immunize public employer action unconnected
to and unmotivated by need
for political loyalty."). The Seventh Circuit has made clear that
speech criticizing an employer's abuse of office does not involve
political or policy viewpoints and therefore is not exempt from Pickering
balancing. Marshall. 32 F.3d at 1221; see Bonds. 207 F.3d at
979. Hanania's speech called on Loren-Maltese to explain her involvement
with Specialty Risk and to answer allegations that she had invested in
Cicero's Insurance provider. Like the plaintiff in Marshall. Hanania
addressed an employer's potential abuse of office. Thus, the Pickering
test is required to determine whether his speech interests outweigh the
government's efficiency interests.
In a footnote, defendants argue that even if the court analyzes
plaintiffs' claim under the Pickering balancing test, the result is the
same: plaintiffs fall to state a constitutional violation. Defendants
have the burden of showing that Cicero's interest in efficiency outweighs
Hanania's free speech rights. See Coady v. Steil,
187 F.3d 727, 732 (7th Cir. 1999)(citing Glass v. Dachel, 2 F.3d 733,
744 (7th Cir. 1993)). Factors the court considers in balancing the
interests of the government employer and the employee are "(1) whether
the statement would create problems in maintaining discipline by
immediate supervisors or harmony among co-workers; (2) whether the
employment relationship is one in which personal loyalty and confidence
are necessary; (3) whether the speech impeded the employee's ability to
perform her daily responsibilities; (4) the time, place, and manner of
the speech; (5) the context in which the underlying dispute arose; (6)
whether the matter was one on which debate was vital to informed
decisionmaking; and (7) whether the speaker should be regarded as a
member of the general public." Jefferson v. Ambroz, 90 F.3d 1291, 1297
(7th Cir. 1996). It is not clear as a matter of law that these factors
balance in favor of Cicero's interest in efficiency. As discussed above,
defendants contend that the second factor, the nature of Hanania's
weighs heavily in defendants' favor. Certainly Hanania's position
of relative influence weighs more in favor of defendants than if
plaintiff were a lower-ranking employee concerned only with
administrative tasks. However, this alone does not justify a ruling for
defendants. As Judge Rovner points out in her concurrence in
Jefferson v. Ambroz, "[T]he interest of the employee in speaking out to
uncover government malfeasance has often been held to outweigh the
interest of the employer in maintaining harmony in the workplace."
90 F.3d 1291, 1298-99 (7th Cir. 1996)(J. Rovner concurring).
Defendants do not rely only on Hanania's confidential position to
support their arguments under Pickering, Rather, they also contend that
the threat of future disruption to the work environment as a result of
Hananla's speech justified his termination. An employer does not need to
establish actual disruption before terminating an employee if the threat
of future disruption is obvious. See Waters v. Churchull,
511 U.S. 661, 673 (1994). However, actual harmful effects that result from
the employee's alleged insubordination, indicate the potential for future
problems with interpersonal relationships in the work environment Conner
v. Reinhard, 847 F.2d 384, 390 (7th Cir. 1988)("Nevertheless, the
defendants have not provided us with any evidence of actual harmful
effects resulting from Conner's alleged insubordination. Thus, the
potential for office disciplinary problems in this case is not
sufficiently `persuasive' for us to conclude that this factor outweighs
Conner's interest in free speech."). Defendants evidence no such effects.
Defendants do not argue that any of the remaining factors support
Cicero's interest in efficiency over Hanania's speech rights. The agreed
facts do not support a finding that his speech interfered with his
ability to perform his job responsibilities. See Conner. 847
F.2d at 391 (citing Hostrop v. Board of Junior College Dist. No.
515, 471 F.2d 488, 492-93 & nn. 12, 14
(7th Cir. 1972)(stating even if speech interferes with employee's
duties, if it is de minimus or speculative, employer's interest
does not outweigh employee's)). The time, place, manner, or context of
Hanania's speech did not render it more disruptive. Hanania spoke only to
Loren-Maltese. As discussed above, though Hanania was a public employee,
his speech was not a required responsibility of his office and,
therefore, it could be regarded as the speech of a concerned citizen.
Thus, Hanania does not, as a matter of law, fail to state a
constitutional claim under the Pickering test.
Though plaintiffs have supported their claim of a constitutional
violation, Loren-Maltese and the Trustees may still be entitled to
qualified immunity if the constitutional standards were not clearly
established at the time of their alleged violation. "This is not to say
that an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, but it is to
say that in light of preexisting law the unlawfulness must be apparent"
Conner, 847 F.2d at 388 (citing Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Defendants argue that the
unlawfulness of terminating policymaking public employees for their
speech was not apparent in 1996 and 1997, when Hanania and Resnick were
terminated. Once again, this argument does not apply to Resnick because
she was not an employee who could be terminated for her speech. Contrary
to defendants* assertions, in 1994 the Seventh Circuit made clear that
policymaking public employees do not relinquish their free speech rights
upon acceptance of employment. Marshall 32 F.3d at 1221 (7th
Cir. 1994). In Marshall, the plaintiff, an executive secretary
of a county plan commission, questioned the county commissioner's claims
for mileage reimbursements and performance of partisan political
activities on county time. Id. at 1218. Soon after, the plan
commission fired the plaintiff, prompting her to file a § 1983 claim.
Id. Following a jury verdict for the plaintiff, defendants moved
for a new trial
or judgment as a matter of law, arguing that because plaintiff was
a policymaking employee she may be terminated for her political beliefs.
Id. at 1219. The Seventh Circuit rejected the defendants'
argument, stating "whether one is a policymaker is not the determinative
question" because policymaking employees do not surrender their right to
freedom of speech, regardless of its content. Id. at 1221. The
court found that plaintiff's speech regarding the county commissioner's
potential abuse of office did not implicate the plaintiff's politics.
Id. Whether or not an employer could dismiss a policymaking
employee for their speech depended on its content. Id. Hanania's
speech regarding Loren-Maltese's potential abuse of public office
parallels the plaintiff's speech in Marshall. Thus, it was apparent at
the time of Hanania's termination that government employers could not
fire employees for their speech just because they were in policymaking
positions. Plaintiffs state a § 1983 claim for which Loren-Maltese
and the Trustees are not entitled to qualified immunity.
Finally, defendants propose a number of arguments for why plaintiffs
cannot establish liability against them for violation of § 1983. The
only argument that has not already been discussed above is Cicero's claim
that Hanania cannot hold the municipality liable for his termination.
There are three ways through which a municipality can violate an
individual's civil rights: (1) an express policy, (2) a widespread
practice that constitutes a custom or usage, and (3) an action or
decision of a person with final policymaking authority. McTigne v. City
of Chicago, 60 F.3d 381, 382 (7th Cir. 1995). As the record provides no
evidence of an express policy or widespread practice that caused
Hanania's alleged deprivation of rights, his claim against Cicero is
based upon Loren-Maltese's action as a person with final policymaking
authority. Defendants maintain that Loren-Maltese did not have final
authority to terminate Hanania the Board of Trustees did
and Hanania failed to seek the Board's review of the
The discretion to make hiring and firing decisions does not amount to
policymaking authority, there must be a delegation of authority to set
policy for hiring and filing. Kujawski v. Board of Commissioners of
Bartholomew County, Ind., 183 F.3d 734, 739 (7th Cir. 1999). In
their own statement of material facts, defendants point out that all
decisions by the Cicero town president are subject to review by the
Board, except for items set out in §§ 2-131 through 2-141 of the
Cicero Town Code. Section 2-135, on employment contracts, states,
`'Whenever the president determines that it is reasonable and in the best
interest of the town to contract for managers, administrators, planners,
attorneys, consultants, auditors, data processors, programmers, health
officials, architects or engineers, the president is authorized to
negotiate and execute contracts for such services without further
approval." Cicero Town Code § 2-135. This is a clear delegation to
the town president to set policy regarding hiring and firing.
Loren-Maltese had final policymaking authority, therefore, Cicero can be
held liable for Hanania's termination.
Count II § 1983 Conspiracy
Defendants present five arguments for summary judgment on Resnick's and
Hanania's claim of conspiracy to violate their constitutional rights. Two
of defendants' arguments, that they did not violate plaintiffs'
constitutional rights, and that they are entitled to immunity, have
already been addressed. Their remaining arguments are that plaintiffs
fail to meet their burden to establish a conspiracy and that their claims
are barred under the intra-corporate conspiracy doctrine.
To state a conspiracy claim under § 1983, a plaintiff must show
"(1) an express or implied agreement among defendants to deprive
plaintiff of his or her constitutional rights and
(2) actual deprivations of those rights in the form of overt acts
in furtherance of the agreement" Scherer v. Balkema,
840 F.2d 437, 442 (7th Cir. 1988), cert. denied, 486 U.S. 1043 (1988).
Hanania falls to support a claim for conspiracy. He contends that
Loren-Maltese violated his First Amendment rights by terminating him
immediately after he questioned her regarding possible corruption.
Hanania does not allege that Loren-Maltese had an agreement with anyone
else before making her decision to terminate him, and thus he has no
claim of conspiracy.
Resnick, on the other hand, does provide circumstantial evidence that
Loren-Maltese, the Trustees, the Cicero Town News, the Cicero Town
Republican Organization and the Cicero Observer, conspired to deprive her
of her First Amendment rights. The courts have recognized that plaintiffs
are rarely able to present direct evidence of a conspiratorial agreement
and often must rely on circumstantial proof. See Bell v.
Milwaukee, 746 F.2d 1205, 1255 (7th Cir. 1984); Hampton v.
Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979); Krilich v.
Village of South Holland, 1994 WL 457227, *2-*3 (N.D.Ill. 1994).
Viewing the record in a light most favorable to Resnick, there is
evidence from which a jury could find that the defendants conspired
against her: (1) the Trustees voted to declare Resnick's position vacant
for failure to attend Board meetings despite a request, delivered by
Cicero's attorney, that she not attend the meetings, (2) the publication
of a Cicero press release and articles in the Cicero Town News and the
Cicero Observer stating that a federal case against the Town of Cicero
would have been dismissed if not for Resnick's comments to a family
intending to sell to a Hispanic family, and (3) Loren-Maltese's alleged
control over the decisions made by the Cicero government
Defendants also argue that regardless of the claim's merit it is barred
under the intra-corporate conspiracy doctrine, which holds that "a
conspiracy cannot exist solely between
members of the same entity." Payton v. Rush-Presbyterian-St. Luke's
Medical Center. 184 F.3d 623, 632 (7th Cir. 1999); see
Wright v. Illinois Dept. of Children & Family Services. 40 F.3d 1492,
1508-09 (7th Cir. 1994). Loren-Maltese, the Trustees, and the Cicero
Town News are all members of the same entity: the Town of Cicero.
However, the Cicero Town Republican Organization and the Cicero Town
Observer are not. The Observer is funded by the town's Republican
organization, which is a separate political entity from the Town of
Cicero. Despite the organization's independence from the Town of Cicero,
Hanania states in his deposition that Loren-Maltese was primarily
responsible for the content of the Observer and often dictated stories to
the manager of the Observer. Given Resnick's allegations of involvement
in the conspiracy by the Republican organization, and the Observer, the
infra-corporate conspiracy doctrine is not available.
Immunity from State Law Claims
After our decision on defendants' motion to dismiss, plaintiffs'
remaining state law claims are civil conspiracy against all defendants,
intentional infliction of emotional distress against Cicero and
Loren-Maltese, and defamation against Loren-Maltese, the Cicero Town
News, the Cicero Town Republican Organization, and the Cicero Observer.
Defendants maintain that the Illinois Tort Immunity Act shields Cicero
from liability for all of the remaining state law claims. Given the
ruling above on collateral estoppel and res judicata, these
claims can only survive if rooted in post-settlement activities.
Nonetheless, we will also analyze whether state law immunity applies to
their pre-settlement actions. Section 2-103 of the Act provides, "A local
public entity is not liable for an injury caused by adopting or failing
to adopt an enactment or by failing to enforce any law." 745 ELCS
10/2-103. Relying on § 2-103, defendants argue that Cicero is immune
from liability for claims arising out of the Board's
passage of the ordinances altering the responsibilities of the town
collector's office, removing Resnick from office, and replacing her with
the town collector-elect Defendants further argue that Cicero cannot be
held liable on these claims if its employees are not held liable. Thus,
if § 2-201 provides Immunity for Loren-Maltese and the Trustees, then
it also provides immunity for Cicero.
Plaintiffs respond to these arguments by noting that defendants do not
call for immunity from liability for the article in the Town News, the
press release, or the mailer, all of which allegedly defamed Resnick.
Though this is true, it does not challenge Cicero's claim of immunity for
the remaining state law counts. As explained in the court's opinion on
defendants' motion to dismiss, Cicero is not liable for its employees'
libels and slanders, and therefore is Immune from damages arising out of
these publications. See Hanania. 56 F. Supp.2d at 1018; 75 ILCS
10/2-107. The remaining state law claims against Cicero: civil conspiracy
and intentional infliction of emotional distress, arise from the
ordinances passed by the Board, including the ordinance removing Resnick
and the firing of Hanania by Loren-Maltese. In a footnote, plaintiffs
argue that defendants' reliance on 745 ILCS 10/2-103 is misguided because
there is no evidence that Resnick's firing was an "enactment" Plaintiffs
appear to concede that the ordinances altering the dudes of the town
collector's office are enactments covered by the statute. Given their
content and the manner in which they were passed, the ordinances
certainly are enactments, as is the ordinance removing Resnick.
Though we found that defendants did not have absolute legislative
immunity from liability for the federal claims related to Resnick's
termination, we find that Cicero is immune from liability for state
claims related to her termination. This determination may appear
contradictory upon first glance, but it is not When determining whether
absolute legislative immunity we asked whether Resnick's
termination was a legislative or administrative act. While it was passed
as legislation, the decision at the heart of the ordinance was
administrative under federal case law it was an employment
decision to terminate an individual whom the Board normally would not
have had the authority to fire, However, in applying 745 ILCS 10/2-103,
we are not required to distinguish between legislative and administrative
acts, we need only determine whether plaintiff's alleged injury stems
from an "enactment" Resnick's termination is the result of an enactment
After passing a resolution finding that the position of town collector
was vacant due to Resnick's absences at Board meetings, the Trustees were
required by the town's charter to fill the office by appointment Cicero
Town Charter § 3. They filled the position by passing an ordinance
instating the town collector-elect.
Even if Resnick's termination is not an enactment that ensures the city
immunity under § 2-103, Cicero still cannot be held liable for state
law claims arising out of Resnick's termination because Loren-Maltese and
the Trustees cannot be held liable. As we noted in Zinnermon v. City
of Chicago Department of Police, 209 F. Supp.2d 908, 910-11 (N.D.Ill.
2002), under 745 ILCS 10/2-109, "[A] local public entity is not liable
for an injury resulting from an act or omission of its employee where the
employee is not liable." Section 2-201 of the Illinois Immunity Act
provides Loren-Maltese and the Trustees immunity for liability arising
from Resnick's termination, as well as Hanania's termination, and the
other Board ordinances at issue. Section 2-201 of the Act states, "[A]
public employee serving in a position involving the determination of
policy or the exercise of discretion is not liable for an injury
resulting from his act or omission in determining policy when acting in
the exercise of such discretion even though abused." 745 ILCS 10/2-201.
To warrant immunity, the public employee's conduct
must be both an exercise of discretion and a policy determination.
See Harinek v. 161 North Clark Street Ltd., 181 Ill.2d 335,
343, 692 N.E.2d 1177, 1182 (Ill. 1998); Zinnermon, 209 F. Supp.2d
at 911. Discretionary acts are unique to a public office, and unlike
ministerial acts that are performed whenever a certain set of
circumstances arise, discretionary acts require an exercise of judgment.
See Zinnermon, 209 F. Supp.2d at 911; Ellis v.
City of Chicago, 272 F. Supp.2d 729, 735 (2003). An act is a policy
determination if it requires the balancing of competing interests to
arrive at the best solution. See Harinek. N.E.2d at 1181. The
ordinances that altered the nature and responsibilities of the town
collector's office required such a weighing of interests and exercise of
The ordinances reducing the powers of the town collector's office are
not the only acts by Loren-Maltese and the Trustees which qualify for
immunity under state law. These defendants are Immune from liability for
the termination of both Resnick and Hanania, as well. Since "decisions of
hiring and firing are discretionary acts," and require the balancing of
interests, they warrant immunity under § 2-201. Ellis,
272 F. Supp.2d at 735-36; Zinnermon, 209 F. Supp.2d at 911.
Loren-Maltese and the Trustees had to weigh competing interests and
exercise discretion in determining that Resnick had abandoned her
position and had to be replaced. Likewise, Loren-Maltese made a
discretionary policy determination by firing Hanania. The court's ruling
that defendants enjoy immunity from state law claims for these decisions
is not affected by plaintiffs' contention that these terminations were in
bad faith and that defendants' justifications for the terminations
Resnick's absences at Board meetings and Hanania's poor job
performance were pretexts. Though the court had recognized an
exception to immunity under § 2-201 for corrupt or malicious motives
in Hanania v. Loren-Maltese, 56 F. Supp.2d at 1014, the Illinois
Supreme Court has made it clear that no such
exception exists. See Village of Bloomingdale v. CDG Inc.
196 Ill.2d 484, 494, 752 N.E.2d 1090, 1098 (Ill. 2001)("Therefore,
because the plain language of these provisions does not contain an
exception for `corrupt or malicious motives,' we will not insert one.").
Thus, all defendants have immunity from liability for state law claims
arising from the Board's ordinances and the plaintiffs' terminations.
Count III-State Law Conspiracy
With defendants' immunity in mind, we must determine whether the facts,
when weighed in favor of the plaintiffs, support their three remaining
state claims. Under Illinois law, "[c]ivil conspiracy consists of a
combination of two or more persons for the purpose of accomplishing by
some concerted action either an unlawful purpose or a lawful purpose by
unlawful means." Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 62,
645 N.E.2d 888, 894 (1994)(citing Smith v. Eli Lilly &
Co., 137 Ill.2d 222, 560 N.E.2d 324 (1990)). As in the case of his
federal conspiracy claim, Hanania falls to support a state law conspiracy
claim because his alleged harm stems from his termination by
Loren-Maltese alone, for which she is immune under state law. Thus, we do
not reach defendants* argument that Hanania's claim is barred by the
Illinois Local Government and Governmental Employees Tort Immunity Act
As for Resnick's claim, defendants once again argue that this claim
fails because there can be no conspiracy between an agent and its
principals. See EEOC v. Outsourcing Solutions Inc. 2002 WL
31409584 at *17 (N.D.Ill. 2002)("Illinois courts recognize the
intracorporate conspiracy doctrine."). They contend that plaintiffs do
not allege conspiracy against the Town Republican Organization or the
Observer. The complaint does however state this claim against these
defendants, and in their response plaintiffs argue that the Republican
organization conspired with Loren-Maltese and the other defendants by
publishing lies about Resnick. Just
as the Intracorporate conspiracy doctrine failed to apply to the
§ 1983 conspiracy claim, so too does it fail to apply to the state
law conspiracy claim.
Finally, defendants highlight that conspiracy is not actionable unless
the underlying acts of the defendants were wrongful or tortious.
See Galinski v. Kessler, 134 Ill. App.3d 602, 606,
480 N.E.2d 1176, 1179 (1" Dist 1985). Given plaintiffs' triable claims
regarding defendants' underlying actions, this conspiracy claim is
Count V Intentional Infliction of Emotional Distress
To succeed on a claim for intentional infliction of emotional distress,
plaintiffs must show that "(1) the defendant's conduct was extreme and
outrageous; (2) the defendant either intended that his conduct should
inflict severe emotional distress or knew that there was a high
probability that his conduct would cause severe emotional distress; and
(3) the defendant's conduct in fact caused severe emotional distress."
Rekosh v. Parks, 316 Ill. App.3d 58, 64, 735 N.E.2d 765, 772
(2d Dist 2000)(citing Doe v. Calumet City, 161 Ill.2d 374, 392,
641 N.E.2d 498 (Ill. 1994)). While both Resnick and Hanania bring this count
in their complaint, Hanania appears to recognize that be does not have a
claim for intentional infliction of emotional distress. In plaintiffs'
response brief to defendants' motion for summary judgment, their
discussion of the emotional distress claim only addresses Resnick's
claim; it never mentions Hanania. Indeed, given that Loren-Maltese is
immune from liability for state law claims arising from her termination
of Hanania, he has no basis for an emotional distress claim against her.
As for Resnick's claim, defendants argue that she has failed to show
that Loren-Maltese's conduct was "extreme and outrageous." They believe
that, as a matter of law, the actions described by Resnick in her
depositions do not satisfy the Illinois standard for intentional
infliction of emotional distress. While defendants cite a number of cases
employers engaged in outrageous behavior arguably more extreme than
that described by Resnick, these cases do not prove that no reasonable
jury could find Loren-Maltese's alleged actions "outrageous" as well.
Given Loren-Maltese's state law immunity for the ordinances altering
the town collector's office and Resnick's termination, this claim rests
solely on Resnick's allegations regarding the dissemination of statements
that she was a bigot who cost the taxpayers of Cicero over $300,000 in
legal fees. Resnick states that Loren-Maltese orchestrated this attack
against her character in retaliation for questioning her involvement in
the Specialty Risk scandal. These allegations do not fall short, as a
matter of law, of outrageous behavior. As a result of these statements,
Resnick maintains that she endured damage to her reputation and
experienced extreme mental anguish, humiliation and embarrassment, as
well as physical symptoms.
Count VIII Defamation
Defendants also bring defamation claims against Loren-Maltese, the
Cicero Town News, the Cicero Town Republican Organization and the Cicero
Observer. In our earlier decision on defendants' motion to dismiss, we
found that Cicero was immune from liability for its employees'
defamation. The Cicero Town News, a publication, controlled and operated
by the Town of Cicero, is likewise immune. Just as a defendant is
eliminated from this count, so too is a plaintiff. Following our
dismissal of paragraphs 151, 152, and 153 of plaintiffs' complaint,
Hanania declined to amend the complaint to include allegations that
defendants' defamed him. Thus, only Resnick's claim remains.
Loren-Maltese argues that she has absolute immunity from the defamation
claim because the statements at issue were made in accordance with her
duties and responsibilities
as town president. Executive officials are protected from
defamation suits "by an absolute privilege when Issuing statements which
are legitimately related to matters committed to [their] responsibility."
Blair v. Walker. 64 Ill.2d 1, 9, 349 N.E.2d 385, 389 (1976). An
official's unworthy purpose or corrupt motive does not invalidate her
immunity, as long as she was acting within the scope of her duties. Barr
v. Matteo, 360 U.S. 564, 575 (1959). In Blair. the Illinois Supreme Court
found that the state governor was acting within the scope of this
privilege when he issued press releases that Informed the public of a
state department's action against the plaintiffs. Id
Resnick complains of statements published in a press release on
December 9, 1997, articles in the Cicero Town News and the Cicero
Observer, and a mailer sent to all Cicero residents on July 2, 1998
all of which Resnick attributes to Loren-Maltese. To determine
whether Loren-Maltese is immune from Resnick's defamation claim, we must
determine whether the publication of these statements was within the
scope of her responsibilities. As to the press release, Loren-Maltese
renders this finding fairly easy. She stated at her February 8, 2001
deposition, "I don't put out press releases, that is not my Job." When
asked further about this, she reiterated, "I do not write press
releases." Of course, we do not expect that Loren-Maltese's duties
included composing all of Cicero's press releases; however, her
statement, "I don't put out press releases," appears to be a general
disavowal of involvement with the December 9, 2001 press release.
In her motion for summary judgment, Loren-Maltese argues that the
decision to inform her constituents of the case against Cicero was within
her authority. She highlights discussions that she had with other town
officials before the decision was made to send mailers to the town's
residents. These discussions were months after the press release had
already been issued
informing them of the outcome of the federal case. In her February
1, 2001 deposition, Loren-Maltese did not even claim to have made the
decision to send the mailer. When asked "[w]ho made the decision to send
out the mailer," she replied, "I don't know who made the formal, motion
but I believe it was agreed upon by the majority in [the committee
meeting]." Loren-Maltese also stated that she did not have any role in
the preparation of the mailer. Given her assessment of her role regarding
the press release and mailer, we cannot find as a matter of law that
these publications were within the scope of her duties and
responsibilities. She does not claim responsibility for deciding to issue
them, nor does she accept a role in their preparation. To prove
defamation per se, or defamation per quod, a plaintiff
must show that defendants "made a false statement concerning plaintiff,
that there was an unprivileged publication of the defamatory statement to
a third party by defendant and that plaintiff was damaged." Wynne v.
Loyola Univ. of Chicago, 318 Ill. App.3d 443, 451, 741 N.E.2d 669,
675 (2000)(citing Cianci v. Pettibone Corp. 298 Ill. App.3d 419, 424,
698 N.E.2d 674 (1998). Under Fed.R.Civ.P. 9(g), state law defamation per
quod claims brought in federal court must satisfy a heightened
pleading standard for special damages. Muzikowski v. Paramount
Pictures Corp., 322 F.3d 918, 924 (7th Cir. 2003). Thus, the
plaintiff must plead and prove actual damage to her reputation and
pecuniary loss resulting from the defamation. Dornhecker v.
Ameritech Corp., 99 F. Supp.2d 918, 933 (N.D.Ill. 2000). While
defamation per se does not require the plaintiff to plead
special damages, the only categories of statements that are considered
defamatory per se are commission of a crime, infection with a
venereal disease, inability to perform or a want of integrity in the
performance of duties of public office, and statements that prejudice a
party or Impute a lack of ability in a person's trade, profession or
business. Wynne, 318 Ill. App.3d at 451(citing
Bryson v. News America Publication. Inc., 174 IU.2d 77, 88,
672 N.E.2d 1207
Defendants do not argue that Resnick's claim for defamation per
se fails as a matter of law. Rather, they argue that she fails
to state a claim for defamation per quod. After the court struck
the complaint's reference to special damages, Resnick declined to amend
the complaint and specifically state her damages. Since she has not
evidenced special damages, Resnick fails to meet the requirements for
defamation per quod. As for Resnick's defamation per se claim,
her affidavit and deposition testimony support her allegations that
Loren-Maltese, the town's Republican organization and its paper, the
Observer, published false statements accusing her of a want of integrity,
or Imputing a lack of ability to function as a public official, which
caused her damages.
Defendants also maintain that Loren-Maltese is entitled to summary
judgment on Resnick's defamation claim based on an advice-of-counsel
defense. Plaintiffs not only contest defendants' argument, they move for
partial summary judgment on defendants' affirmative defense. To establish
an advice-of-counsel defense, a defendant must show that "(1) before
taking action, (2) he in good faith sought the advice of an attorney whom
he considered competent, (3) for the purpose of securing advice on the
lawfulness of his possible future conduct, (4) and made a full and
accurate report to his attorney of all material facts which the defendant
knew, (5) and acted strictly in accordance with the advice of his
attorney who had been given a full report" U.S. v. Cheeks,
3 F.3d 1057, 1061 (7th Cir. 1993); Liss v. U.S., 915 F.2d 287,
291 (7th Cir. 1990).
Loren-Maltese asserts that her deposition testimony, as well as that of
Cicero employee Dave Donahue and attorney Mark Sterk, establishes this
defense or at least creates a question of fact regarding its
availability. In her motion for summary judgment, Loren-Maltese
contends that before the press release of December 9, 1997, was
issued, Donahue observed the customary practice of consulting with an
attorney regarding any legal issues raised by its release. Loren-Maltese
cites her February 8, 2001 deposition, in which she states that she
instructed Donahue to speak with Sterk about the mailer, not the press
release. Thus, her testimony could only support a defense for the mailer,
not for all the statements at issue. In addition, Loren-Maltese can only
assume that Donahue had a discussion with Sterk. She has no specific
knowledge of any conversations between the two.
For his part, Donahue remembers having a general conversation with
Sterk about the federal housing lawsuit against Cicero sometime in late
1997, though he does not remember who initiated it. He states, "I believe
I read the Judge Zagel's opinion, and we [Sterk and Donahue] just
discussed the case, the generals, so that I would understand the generals
and specifics of it at the time so I could publicize the results."
Donahue remembers discussing Resnick with Sterk, as well, but does not
remember any of the specifics. Sterk does not recall discussing the case
with Donahue at all. Nor does Donahue remember discussing the matter with
Loren-Maltese's assumption that Donahue followed general practices and
Donahue's discussion with Sterk of "the generals" of the Cicero lawsuit
do not support a finding that Loren-Maltese sought the advice of an
attorney and made a full and accurate report of the facts before getting
advice on what to publish in the Cicero press release and mailer.
Defendants argue that the record reflects Sterk's familiarity with the
details of Judge Zagel's ruling. Sterk may have known the details of
Judge Zagel's ruling due to his work with Cicero, but this does not
support a defense that requires the defendant to seek the advice
of an attorney and make a full report to him. Defendants also
contend that Sterk's inability to recall discussing the case
with Donahue does not bar the defense. Even though this defense
does not hinge on Sterk's recollection, it does require evidence that
Loren-Maltese, personally or through Donahue, fully informed Sterk of the
case, the intended press release and mailer; sought his advice; and
followed it. The deposition testimony of Loren-Maltese, Donahue and Sterk
does not provide such evidence.
In an earlier ruling the court rejected plaintiffs' argument that Judge
Nolan's decision to allow defendants to pursue an advice-of-counsel
defense was based on a material misrepresentation, see Hanania
v. Town of Cicero. 2002 WL 226847 at *1 (N.D.Ill. 2002). However, we left
unanswered the question of whether the evidence supported such a defense.
Plaintiffs contend that it does not, and we agree. Since we grant
plaintiffs' motion for partial summary judgment on the basis that
defendants' advice-of-counsel defense lacks support in the record, we
will not address plaintiffs' argument that defendants' refusal to waive
attorney-client privilege prohibits their right to bring an
advice-of-counsel defense. Compensatory and Punitive Damages
Finally, defendants argue that plaintiffs failed to produce sufficient
evidence regarding their claims to compensatory and punitive damages.
Defendants contend that plaintiffs' self-serving statements are
insufficient to support a claim for emotional distress, that they fail to
provide concrete evidence of injury to their reputation, and that
plaintiffs have provided no basis for an award of punitive damages.
Defendants cite Nekolny v. Painter, 653 F.2d 1164, 1172-73 (7th Cir.
1981), cert. denied 455 U.S. 1021 (1982), for the proposition
that plaintiffs' generalized statements do not Justify awards for
non-economic damages in discharge actions. However, the Seventh Circuit
has made clear that this case does not stand for the proposition "that an
injured person's testimony
can never be sufficient by itself, or in conjunction with the
circumstances of the particular case, to establish damages for emotional
distress." U.S. v. Balistrieri, 981 F.2d 916, 932 (7th Cir.
1992)(citing Rakovich v. Wade, 819 F.2d 1393, 1399 n.6 (7th Cir.
1987)[reversed on other grounds]; Crawford v. Garnier, 719 F.2d 1317,
1324 (7th Cir. 1983). In Stafford v. Puro, 63 F.3d 1436, 1445 (7th
Cir. 1995), the Seventh Circuit upheld plaintiffs award of emotional
distress damages because he not only stated that defendants' actions
humiliated him and caused him stress, but also testified as to the
effects of this humiliation and stress. Resnick has likewise stated in
her affidavit and deposition that she has suffered stress and humiliation
due to defendants' actions, and that this has resulted in physical
symptoms and an inability to engage in some normal social interactions.
As discussed above, plaintiffs do not have a claim for defamation
per quod. Only Resnick has a claim for defamation per
se. Statements that qualify as defamation per se are so
obviously harmful that damage to the plaintiff's reputation is presumed.
Thus, Resnick's claim for defamation does not require a showing of
concrete, actual injury to her reputation. Even if Resnick's claim did
require such a showing, she has met her burden for purposes of this
motion. Defendants argue that Resnick relies wholly on her own testimony,
but as in Niebur v. Town of Cicero, 212 F. Supp.2d 790, 822 (N.D.Ill.
2002), "defendants cite to no authority supporting the proposition that a
showing of reputational injury requires third-party or expert support or
cannot be sustained by merely the testimony of the plaintiffs alone."
Nor are defendants entitled to summary judgment on punitive damages.
Their assertion that defendants' alleged conduct is not malicious, wanton
or oppressive, rings hollow if one views the record in a light most
favorable to the plaintiffs, as we must
Defendants' motion to strike is granted in part and denied in part
Paragraphs 14,138, 163, 164 and portions of paragraph 13 of plaintiffs'
statement of additional facts are stricken; the rest are not.
For the foregoing reasons, defendants' motion for summary judgment is
granted in part and denied in part Summary judgment is granted on all
counts against all defendants, as they relate to defendants' activities
prior to the August 20, 1997 settlement agreement between Resnick,
Loren-Maltese, and Cicero. Summary judgment is granted on Hanania's §
1983 conspiracy claim (count II).
Summary judgment is granted on all state law claims against Cicero. It
is also granted on Hanania's state law conspiracy claim (count III), his
intentional infliction of emotional distress claim (count V), and his
defamation claim (count VIII). Summary judgment is granted on Resnick's
state law claims against Loren-Maltese and the Trustees that arise out of
her termination, and on her claim for defamation per quod.
Finally, plaintiffs' motion for partial summary judgment on defendants'
advice-of-counsel defense is granted.