United States District Court, N.D. Illinois
March 31, 2004.
PATRICIA A. WEISSMANN, Plaintiff,
LORI CARROLL, MARTIN McGUIRE, MAGGIE O'HERN, and ORLAND TOWNSHIP, an Illinois municipal corporation, Defendants
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Lori Carroll's, Martin
McGuire's, Maggie O'Hern's (collectively the "individual defendants"),
and Orland Township's (hereinafter "Township") motion for summary
judgment as to Plaintiff Patricia A. Weissmann's (hereinafter
"Weissmann") Complaint In Count I and Count II, Weissmann alleges
violations of 42 U.S.C. § 1983 against the individual defendants and
the Township. Additionally, before this court is individual defendants'
and Township's motion to strike the affidavit of Patricia Thompson.
For the reasons below, this court grants individual defendants and
motion for summary judgment on Count's I and II of Weissmann's
Complaint. In addition, the court strikes as moot the motion to strike
the affidavit of Patricia Thompson.
According to Weissmann's Complaint, she began her employment with the
Township in February 1999 as the part-time Deputy Clerk, and at one point
also served as the part-time Acting Executive Administrator for the
Township. The record reflects that in September of 2000, the position of
Township Executive Administrator became vacant. The Orland Township Board
(hereinafter "Board") asked Weissmann and two other individuals to help
perform some of the Executive Administrator duties while the position was
vacant. From approximately September 2000 through May 2001, Weissmann,
along with two other individuals, were paid stipends to perform these
extra duties while the position was vacant.
On April 3, 2001, an election was held for various positions on the
Township Board of Trustees. At that time, Weissmann was the Deputy Clerk
and was also still helping to perform the extra duties of the Township
Executive Administrator. In the April 2001 election, candidates from the
two political parties, the Coalition Party and the Independent Leadership
Party, ran for trustee positions on the Board. The individual defendants
were the Coalition Party's candidates. Weissmann supported the
Independent Leadership Party candidates. The outcome of the
election resulted in the three individual defendants being elected to
three trustee positions on the Township. As a result, the individual
defendants became a three to two voting majority of the Board.
On May 8, 2001, the Board held its first meeting following the
election. At the meeting, one of the individual defendants moved for the
Board to hire Ellen Friedel to the vacant position of Executive
Administrator and also to terminate Weissmann's temporary stipend and the
extra Executive Administrator duties that she was performing. The
individual defendants supported both motions affirmatively and each
motion passed by a three to two majority vote.
Later at the same meeting, the Board considered abolishing the Deputy
Clerk position from the Township. However, the measure did not come to a
vote at that meeting. At a following Board meeting on May 15, 2001, one
of the individual defendants moved to adopt an ordinance abolishing the
office of Deputy Clerk. Thereafter, a vote was taken and the office of
Deputy Clerk was eliminated by a vote of three to two.
This case was originally before the Honorable Ronald A. Guzman of the
Northern District of Illinois. In a February 27, 2003 Memorandum Opinion
and Order, Judge Guzman, addressing the individual defendants' and the
Township's motion to
dismiss Weissmann's Complaint, granted the individual defendants'
motion to dismiss Count I with regard to the abolishment of the Deputy
Clerk position; denied the individual defendants' motion to dismiss Count
I with regard to the termination of Weissmann from her part-time position
as Executive Administrator; and denied in its entirety the Township's
motion to dismiss Count II.
Summary judgment is appropriate when the record reveals that there is
no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant
of summary judgment the moving party must identify "those portions of
`the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,' which it believes
demonstrate the absence of a genuine issue of material fact." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). This initial burden may be satisfied by presenting specific
evidence on a particular issue or by pointing out "an absence of evidence
to support the non-moving party's case." Id. at 325. Once the
movant has met this burden, the non-moving party cannot simply rest on
the allegations in the pleadings, but, "by affidavits or as otherwise
provided for in [Rule 56], must set forth specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine
issue" in the context of a motion for summary judgment is not simply a
"metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rather, a genuine issue of material fact exists when "the evidence is
such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th
Cir. 2000). The court must consider the record as a whole, in a light
most favorable to the non-moving party, and draw all reasonable
inferences that favor the non-moving party. Anderson, 477 U.S.
at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th
COUNT I: § 1983 Individual Defendants Claim
With respect to Count I, Weissmann argues that the individual
defendants deprived her rights to freedom of speech, freedom of assembly,
freedom of association, due process, and equal protection under the First
and Fourteenth Amendment of the U.S. Constitution in violation of §
1983. Section 1983 makes it unlawful for any person "under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . [to]
subject, or cause to be subjected, any citizen of the United States
. . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws." 42 U.S.C. § 1983.
Weissmann claims that the individual defendants have violated §
retaliating against her for exercising such rights when she openly
supported the individual defendants' opponents in a political campaign.
In particular, Weissmann argues that the individual defendants retaliated
against her by terminating her as a part-time Executive Administrator.
The United States Supreme Court has affirmatively denounced firing
practices of public employees based on patronage. Elrod v.
Burns, 427 U.S. 347, 360-61 (1976). In Elrod, the Supreme
Court explained that conditioning public employment on the provision of
support for the favored political party "unquestionably inhibits
protected belief and association." Id. at359. In addition, the
Supreme Court has recognized that such politically motivated behavior
against public employees is also actionable under 42 U.S.C. § 1983
with respect to promotions, transfers, recall, and hiring decisions."
See Rutan v. Republican Party of Illinois, 497 U.S. 62, 76
(1990)(extending Elrod to include promotion, transfer, recall,
and hiring decisions based on party affiliation and support).
Furthermore, the Seventh Circuit has viewed views political patronage
cases as a subset of cases concerning discharge in retaliation for the
exercise of First Amendment rights. Marshall v. Porter County Plan
Com'n, 32 F.3d 1215, 1220, (7th Cir. 1994); Wilbur v.
Mahan, 3 F.3d 214, 219 (7th Cir. 1993).
Before this court determines if there is a genuine issue of material
fact as to whether and for what purposes Weissmann may have been fired,
the court must first
determine what, if any, position she was fired from. The court
notes that Weissmann has not been certain as to what title she was fired
from. For instance, in her Original Complaint, Weissmann alleged
violations under § 1983 in that the individual defendants fired her
from the position of "Executive Administrator for Orland Township". Pl.'s
Compl. ¶ 27. Yet, in subsequent motions and admissions, Weissmann
refers to herself as being the former "Acting Executive Administrator for
Orland Township". Pl.'s Rule 56.1 Resp. ¶ 13. In her latest version,
Weissmann declares that she actually served as the former "part-time
Acting Executive Administrator for Orland Township." Pl.'s
Rule 56.1 ¶ 2.
According to Weissmann, she began her employment at the Township in
February of 1999 as the Deputy Clerk of the Township. Pl.'s Rule 56.1
¶ 1. In September of 2000, the position of Executive Administrator of
the Township became vacant. Pl.'s Rule 56.1 Resp. ¶ 5. The Executive
Administrator runs the daily operations of the Township; makes reports
and policy recommendations to the Town Board, and otherwise performs a
broad range of functions for the Township. Id. at 6.
At a September 5, 2000 Township Board Meeting, the Board asked
Weissmann, Sandy Burian ("Burian"), and Ellen Friedel ("Friedel") to
assume the extra duties that were usually performed by the Executive
Administrator. Pl.'s Rule 56.1 Resp. ¶ 11. Weissmann, Burian, and
Friedel were each paid a temporary stipend for assuming those extra
duties while the Executive Administrator position was vacant.
Id. at 12, 16; Pl.'s Rule 56. 1 Ex. 6 p. 50. Weissmann also
admits that the Board never hired her to the
position of acting Executive Administrator. Id. at 13;
Weissmann Dep. p. 4 8. Furthermore, Weissmann understood that the extra
duties that she and the others were performing were only temporary.
Id. at 14; Weissmann Dep. p. 50-51.
Nine months later, on May 8, 2001, the Township Board, held its first
meeting since the April 2001 election. The individual defendants now
occupied three of the five Board seats. Pl.'s Rule 56.1 ¶'s 15, 18;
Pl.'s Rule 56.1 Resp. ¶ 34. At the meeting, one of the individual
defendants moved for the Board to hire Friedel to the vacant position of
Executive Administrator and also to terminate Weissmann's temporary
stipend and the extra Executive Administrator duties that she was
performing while the position was vacant. Pl.'s Rule 56.1 Resp. 37. The
individual defendants supported both motions affirmatively and each
motion passed with a three to two majority vote. Pl.'s Rule 56.1 ¶'s
The discovery process in this claim has provided this court with
valuable evidence in examining Count I. See Sledd v. Lindsay,
102 F.3rd 282, 288-289 (7th Cir. 1996)(stating that once the parties have
been able to develop a record suitable for summary judgment motions, the
district court will be in a far better position to see if the Plaintiff
can back up his allegations with anything that entitles him to a trial).
The court finds that despite her claim, Weissmann was not fired from the
position of "part-tune Acting Executive Administrator". Additionally,
Weissman points this court to no new evidence to prove that she was ever
officially hired to any of the above named positions. At best, she was
relieved from the temporary extra duties she and two other individuals
agreed to take on while the position of Executive Administrator was
The court notes that at the summary judgment stage it must consider the
record as a whole, in a light most favorable to the non-moving party, and
draw all reasonable inferences that favor the non-moving party.
Anderson, 477 U.S. at 255; Bay v. Cassens Transport
Co., 212 F.3d 969, 972 (7th Cir. 2000). However, many of the
inferences and arguments Weissmann wishes us to infer are totally
unreasonable. Pl.'s Respons. to Summ. J. p. 9-11. Weissmann presents an
unsupported theory that she was the victim of politically motivated
behavior because she openly supported the individual defendants'
opponents in a political campaign. Pl.'s Rule 56.1 Resp. ¶'s 19
32, 39-40, 42. Simply put, her allegations conflict with her own
admissions. Weissmann mentions individuals who are not named as
defendants in this matter who are not even employed by the
Township as retaliating against her and asks us to impute
liability on the named defendants. Pl.'s Resp. Def.'s Summ. J. p. 9-13.
She asks the court to consider that even if we found she was not
retaliated against, we could find that her former boss, the Township
Clerk, was subject to retaliation. Id. In particular, paragraphs
19 through 32 of the Plaintiff's Response to the Defendants' Statement of
Facts exhibit the speculative nature of the basis of these theories and
the lengths to which Weissmann has gone to allege that she has been
retaliated against by the individual defendants. For instance, Weissmann
in her deposition responded to the following questions as such:
Q: Do you have any information that any of the
three [individual defendants] of them knew that
A: If your're going to ask me for factual
information, which I don't have, but everybody
knew who was working on everybody else's
campaign. I clarified that. I said I do not
have factual information.
Q: Do you have any nonfactual information?
A: Everybody knew everybody else. It's Orland
township. It's six square miles. That's what
townships are, they're six square miles. You
knew who was working on the other's campaign.
Pl.'s Rule 56.1 Ex. 6 p.74-75. These statements are not reasonable
The facts clearly establish that over the course of nine months,
Weissmann, along with two other individuals, were paid stipends to
perform extra duties for the Township while the Executive Administrator
position was vacant. Weissmann understood that the extra duties were not
permanent and that they would cease when the Board appointed a new
Executive Administrator. When the Board decided to appoint Friedel to
fill the Executive Administrator vacancy, Weissmann was relieved of the
extra duties she and the others had assumed. This summary of the course
of events in this matter is taken from Weissmann's own admissions.
Discovery in this matter has produced a record that establishes no
factual disputes. Sledd, F.3d at 288-289.
Respectively, this court finds that Count I, and the allegations set
forth, are completely disingenuous and not in violation of the protection
afforded under § 1983 as explained by the Court in both Rutan and
Elrod. Rutan v. Republican Party of Illinois, 497 U.S. 62,
76 (1990); Elrod v. Burns, 427 U.S. 347, 360-61 (1976).
Even if Weissmann was able to establish that the Board did fire her
from the position of part-time acting Executive Administrator, which she
has failed to do, summary judgment would still be appropriate in that the
position of Executive
Administrator is a policymaking position. The Seventh Circuit has
explained that in patronage cases, an exception arises in the situation
in which the public employee or job applicant occupies or seeks an office
having a confidential character, a policymaking function, or some other
characteristic that would make party affiliation a reasonable job
qualification. See Wilbur v. Mahan, 3 F.3d 214, 216 (7th Cir.
1993)(citing Elrod v. Burns, supra, 427 U.S. at 367, 96 S.Ct. at
2687; Branti v. Finkel, supra, 445 U.S. at 518, 100S.Ct. at
1294-95; Upton v. Thompson, 930 F.2d 1209, 1213-16 (7th Cir.
1991); Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir.
1985); Soderbeck v. Burnett County, supra, 752 F.2d at 288;
Livas v. Petka, 711 F.2d 798, 800 (7th Cir. 1983). "A public
agency would be unmanageable if its head had to appoint or retain his
political enemies, or if that is too strong members of the opposite party
or for that matter members of no party, neither enemies nor
friends in positions of confidence or positions in which they
would be making policy or, what amounts to the same thing, exercising
discretion in the implementation of policy." Id.
The Executive Administrator runs the daily operations of the Township;
makes reports and policy recommendations to the Town Board, and
otherwise performs a broad range of functions for the Township.
Id. at 6. Based on the job description, affidavits, Weissmann's
own admissions, and a review of the complete record, the position of
Executive Administrator qualifies as a policymaking position. Pl.'s
Rule 56.1 Resp. ¶'s 10, 17. Weissmann has affirmatively maintained that
she is not a member of the individual defendants' political party, thus,
if Weissmann was fired as
the part-time acting Executive Administrator the act would be
justified under the above mentioned exception. Wilbur, 3 F.3d at
As such, this court finds that Count I presents no genuine issue as to
any material fact and that no reasonable jury could find that Weissmann
was retaliated against in violation of § 1983.
Therefore, we grant the individual defendants motion for summary
judgment as to Count I of Weissmann's Complaint.
COUNT II: § 1983 Township Claim
With respect to Count II, Weissmann re-alleges that the Township
violated § 1983 when it deprived her of her right to freedom of
speech, freedom of assembly, freedom of association, due process, and
equal protection under the laws as guaranteed through the First and
Fourteenth Amendment of the U.S. Constitution. Weissmann claims that the
Township deprived her of her Constitutional Rights when it fired her from
the Executive Administrator position and eliminated the position of
Deputy Clerk in retaliation for her exercising such rights when she
openly supported the individual defendants opponents in a political
As already explained above in this court's analysis of Count I,
Weissmann's admissions reveal that she was not fired or retaliated
against by the individual defendants with respect to the extra Executive
Administrator duties she was relieved from performing. Accordingly, the
court finds that Township is also not liable for
retaliation with respect to the Board relieving Weissmann of the
extra Executive Administrator duties she was performing. Thus, the only
remaining claim the court must determine is whether Weissmann was
retaliated against when the Board decided to eliminate the Deputy Clerk
The doctrine of respondeat superior cannot be utilized to hold
local governmental units liable for Section 1983 violations. Monell
v. Department of Social Services, 436 U.S. 658, 691 (1978). A
municipal governmental unit cannot be held liable under Section 1983
"unless the deprivation of constitutional rights is caused by a municipal
policy or custom." Kujawski v. Board of Comm'rs. Of Bartholomew
County, Indiana, 183 F.3d 734, 737 (7th Cir. 1999). A local
governmental unit's unconstitutional policy, practice or custom can be:
"(1) an express policy mat causes a constitutional deprivation when
enforced; (2) a widespread practice, that, although unauthorized, is so
permanent and well-settled that it constitutes a "custom or usage" with
the force of law; or (3) an allegation that a person with final
policymaking authority caused the injury." Chortek v. City of
Milwaukee, 356 F.3d 740, 748 (7th Cir. 2004).
At the May 8, 2001 Township Board Meeting, the Board considered
abolishing the Deputy Clerk position from the Township, yet a vote was
never taken on that matter. Pl.'s Rule 56.1 ¶'s 36, 37. However, at a
following Board meeting on May 15, 2001, one of the individual defendants
moved to adopt an ordinance abolishing the office of Deputy Clerk.
Id, at 38. The individual defendants voted to eliminate the
the office of Deputy Clerk was eliminated by a vote of three to
two. Id. at 40.
Weissmann alleges that under the third prong of this test, the
Township's adoption of the ordinance to abolish the Deputy Clerk position
was an unconstitutional act by the Township Board who had the final
policymaking authority. The Township maintains that the abolishment of
the Deputy Clerk position by ordinance is not unconstitutional because a
township's decision to have a deputy clerk is expressly authorized by the
Illinois Township Code under 60 ILCS 1/75-45. The Township also contends
that the purpose for which they abolished the Deputy Clerk position was
not to terminate Weissmann's employment with the Township. Rather, they
believed and still believe that the Deputy Clerk position was not
necessary fiscally or organizationally for the Township. Def.'s Ex. B.
Weissmann states that the Deputy Clerk position is necessary because
the elected Clerk of Orland Township could not be in her office everyday
from 8:00am to 5:00pm due to other responsibilities and that the office
of Township Clerk was only part-time. Pl.'s Rule 56.1 ¶ 39. Weissmann
also states that she had to perform many of the duties of the Clerk
because the Clerk was not always in the office. Pl.'s Rule 56.1 Resp.
¶ 7; Pl.'s Rule 56.1 Ex. 6 p.27. Weissmann's personal opinion
relating to the importance and necessity of her position is self-serving,
irrelevant, and without merit. Moreover, Weissmann does not dispute the
constitutionality of 60 ILCS 1/75-45 of the Illinois Township Code and
readily admits that the Deputy Clerk position has not since been
reinstated by the Township. Still, Weissmann chooses to invoke the
theory that the position of Deputy Clerk was abolished by
politically motivated behavior because she openly supported the
individual defendants' opponents in a political campaign. Pl.'s
Rule 56.1 Resp. ¶'s 19-32, 39-40, 42, 45; Pl.'s Rule 56.1 ¶'s 13, 14; Pl.'s
Rule 56.1 Ex. 6 p. 84. Weissmann supports this contention with the
affidavit of the Township Clerk, Patricia Thompson, who asks this court
to assume the following in ¶ 10:
10. Somebody who was interested in and involved in
the April 2001 Township election would have
had to have known that I was a candidate for
re-election as clerk and that Pat Weissmann
was a supporter of mine.
Pl.'sEx.5 ¶ 10. A § 1983 claim against a municipality is a
serious action. As such, this court will make reasonable inferences, but
not baseless assumptions.
This court finds that with respect to Count II, Weissmann's argument
fails to address and set forth specific facts mat would show that there
is a genuine issue for trial. Fed.R.Civ.P. 56(e). As such, this Court
finds that Count II presents no genuine issue as to any material fact and
that no reasonable jury could find that Weissmann was retaliated against
in violation of § 1983 when the Board chose to abolish the position
of Deputy Clerk.
Based on the foregoing analysis, this court grants Defendant's motion
for summary judgment on Counts I and II of Weissmann's Complaint. In
addition, the court strikes as moot the motion to strike the affidavit of
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