United States District Court, N.D. Illinois, Eastern Division
September 29, 2004.
JAMES GUMM, Individually and in his Capacity as the Milton Township Assessor Plaintiff,
JAMES FLICKENGER, BARBARA MURPHY, O. CHRISTOPHER HEIDORN, Individually and in Their Capacities as Milton Township Trustees, RON SMITH, CAROL SCHOLL, AND JAMES PHILLIPS Defendants.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Before this Court are is a motion to dismiss the complaint of
James Gumm ("Gumm" or "Plaintiff"), filed by Carol Scholl
("Scholl" or "Defendant"). Scholl seeks to dismiss Counts IV, V,
VII, VIII, and IX of Gumm's complaint. In the alternative, she
requests that this Court dismiss Gumm's requests for punitive
relief on those counts.*fn1 For reasons stated below,
Scholl's motion to dismiss is GRANTED IN PART and DENIED IN PART.
This Court will not dismiss Count IV and V or Gumm's request
for punitive relief on those counts. This Court will dismiss
Counts VII, VIII, and IX with respect to Scholl; consequently,
Scholl's request to deny punitive damages on those counts MOOT. Factual and Procedural Background*fn2
Plaintiff James Gumm first began working in the Milton Township
Assessor's office in 1988. ¶ 8. He started as a deputy assessor
and was later elected to the post of Assessor. ¶ 8. He began his
four-year term in 1998, was re-elected, and began his second
four-year term in 2002. ¶¶ 8-9.
As Assessor, Gumm updated the information technology in the
Assessor's Office. ¶¶ 10-11. Since early 2002, the total number
of employees necessary for the day-to-day operations of the
Assessor's office has decreased by half, from 20 employees to 10
employees. ¶ 13.
When Gumm took office, there was a substantial disparity in
residential and commercial assessments. ¶ 14. A number of
commercial properties had either been under-assessed or not
assessed at all. ¶ 14. Gumm was particularly concerned about the
exemptions and underappraisals that benefitted elected officials.
During his tenure, Gumm updated commercial assessments. ¶ 17.
He denied Milton Township Board member James Flickinger four of
the five assessment exemptions that Flickenger had been
previously given. ¶ 19. He also denied exemptions to a number of
individuals associated with Flickenger and increased the
assessments of others associated with Flickenger as much as five
times what they had paid in the past. ¶ 22.
Gumm's moves met with considerable resistance from a number of
people, including local and civic political leaders who objected
to the assessment corrections. ¶ 16. Gumm was repeatedly warned
by elected officials and political leaders that his reelection
would be opposed and efforts would be made to destroy him
politically. ¶ 16. Flickenger, for example, participated in closed sessions of
public bodies, met with members of Gumm's church to discuss the
most intimate details of Gumm's life, encouraged disturbances
among Gumm's employees, publicly maligned Gumm, and campaigned
and voted to deny Gumm the necessary resources to do his job. ¶
Ron Smith, a former Milton Township Assessor who was employed
by Milton Township in another capacity during the events in
question, vocalized a strong interest in seeing Gumm removed from
office. ¶ 24. Smith pursued Gumm's removal by meeting with
employees from the Assessor's office and encouraging them to
pursue claims for disparate treatment of one kind or another. ¶
28. In 2000, he met repeatedly with employee Carol Scholl. ¶ 29.
After Gumm took office, Smith and Scholl met several times to
discuss the viability of a lawsuit against Gumm that would serve
to tarnish his reputation and credibility such that he would be
forced to leave office. ¶ 32. Smith had previously assisted
Scholl in pursuing claims for sexual harassment against another
individual. ¶ 30.
In or about August 2000, Scholl came to work wearing a t-shirt
that pictured tomatoes and stated "firm." ¶ 156. She later
complained that Gumm touched her shirt and said the word "firm."
¶ 157. Later that day, she met with a local police officer. ¶
158. She told the officer that she had had a tape recorder in her
pocket during a meeting with Gumm and that she wanted to use the
recording. ¶ 158. The officer told her it was illegal. ¶ 158.
When Gumm later demanded a copy of the tape, she said it she had
recorded over it. ¶ 160. When Scholl was asked for a copy of the
tape that had been "taped over" she claimed that it had been
destroyed. ¶ 161.
In late 2000, Scholl and seven other employees in the
Assessor's office prepared a claim against Gumm and another
Assessor's Office employee, Larry Gage. ¶ 37. In February 2001, Scholl filed a claim with the EEOC alleging, among other things,
that she had "felt pressured for dates with Gumm." ¶ 33. Scholl
researched the law on sexual harassment, came to work wearing
provocative clothing and a hidden microphone with the intent that
he would be provoked into saying or doing something that would
support a claim for sexual harassment; and met with other
employees in the office to convince them that they were underpaid
or under-utilized on account of their gender. ¶ 35. Scholl's
personal files indicate that she and Gumm were "developing a
friendship." ¶ 34.
The complaint was lodged shortly after a meeting in which
Township Board member Barbara Murphy advised the complainants on
how to craft their complaint so it would be covered by the
Township's insurance policy. ¶ 38. The employees alleged that the
Assessor's Office constituted a hostile work environment and
Scholl alleged that Gumm was pursuing her for dates. ¶ 39. The
claims were asserted against the Assessor's Office and the Milton
Township Board. ¶ 40.
The Board's retained attorney, Richard Russo, interviewed both
the claimants and a number of individuals they identified as
witnesses. ¶ 41. Russo accumulated over two dozen audio cassettes
of testimony and a box of documentation regarding claims against
Gumm. ¶ 42. The tapes revealed that many, if not all of the
claims against Gumm, were completely lacking in merit or
credibility. ¶ 44. Gumm was not told that many of the claimants
had already acknowledged during their taped interviews with Russo
that the claims filed with the EEOC were lacking in merit. ¶ 54.
Scholl said during her interview that other than one instance,
there had been no inappropriate touching. ¶ 46. Another witness
was among many who testified that she thought the allegations had
been fabricated to get Gumm out of office. ¶ 47. Gumm was not given access to the tapes during the investigation
or its subsequent resolution. ¶ 43. He lodged complaints with the
Township Supervisor and the Township Human Rights Consultant
regarding the Board's handling of the investigation. ¶ 49.
Freedom of information requests were made on his behalf. ¶ 49. He
had asked that the counsel retained to represent him provide him
with the documents. ¶ 49.*fn3
Before the mediation, Gumm had repeatedly advised his counsel
and the other defendants that he believed the evidence would
exonerate him and that he therefore had no interest in
considering the kinds of settlements that were likely to be
discussed at the mediation. ¶ 52. Gumm vehemently denied any
liability and repeatedly asked that the Board and insurer
attending the mediation agree with him that the claims should be
defended rather than settled. ¶ 51.
Over Gumm's objections, the Trustees and counsel negotiated a
settlement agreement which, in part, provided for the Trustees to
exercise some albeit limited authority over the Assessor's
office. ¶ 55. Gumm was ultimately compelled to agree to
settlement when one of the insurers advised him that he was
placing Township assets at risk by proceeding to trial as the
insurers' counsel would not continue to represent him after the
mediation. ¶ 52. Gumm was not told that many of the claimants had
already acknowledged during their taped interviews with Russo
that the claims filed with the EEOC were lacking in merit. ¶ 54. The final settlement agreement contained language which Heidorn
and other defendants later construed to provide the Township
Board with authority over the handling of employee disputes,
Gumm, and other related concerns. ¶ 60.*fn4
In late September, 2001, Smith and Phillips attended a private
meeting with the Milton Township Board. ¶ 61. At the meeting,
Gumm's situation was discussed. ¶ 61. Phillips ordered Heidorn,
Flickenger, and Murphy to "take care of it." ¶ 61. In the first
week of November, 2001, Heidorn prepared the "bullet memo" which
he distributed to members of the Board. ¶ 62. The bullet memo
provided that Gumm would take no part in human resources
decisions for a year, and after the year would only do so in
consultation with deputy assessor Carol Lofgren and Carol Scholl.
¶ 63. The memo also stated that Gumm would be prohibited from
terminating any employee for any reason; that employees of the
Assessor's office would be free to "consult" with Heidorn rather
than Gumm regarding the business of the Assessor's Office
"without fear of comment or reaction" by Gumm; and that the
Trustees would be free to advise the deputy assessor regarding
matters involving the Assessor's Office "without interference" by
Gumm. ¶ 63. In exchange for the concessions, the bullet memo
provided specific assurance that "Ron [Smith] will cease all
overt and covert activities designed to undermine" Gumm. ¶ 64.
On November 8, 2001, the Board held another private meeting. ¶
65. All the Board members attended, as did state senator Peter
Roskam, and representative Randy Hultgren. ¶ 65. Smith had previously consulted Hultgren about Scholl's initiation
of claims against Gumm. ¶ 65. Gumm arrived at the meeting, which
was held at Heidorn's home, expecting to attend a personal
meeting with Heidorn. ¶¶ 65-66. At the meeting, Gumm was
presented with the bullet memo and told to sign it. ¶ 67. He was
told that if he did not sign it, the group would make a concerted
effort to ruin him. ¶ 67. Gumm refused to sign the memo. ¶ 68.
On November 24, 2001, Gumm went to Phillips' office, expecting
to meet with the local party leader in response to a request he
had received. ¶ 70. He found the Board once again in a private
meeting, this time with four of its five members present. ¶ 70.
Smith, Roskam, Hultgren, and Phillips were also in attendance. ¶
70. At the meeting, Phillips threatened Gumm. ¶ 71. He told Gumm,
"We'll tell you who you can hire and fire." ¶ 71. He said that if
Gumm didn't agree to surrender control of his office in the
manner described in the bullet memo, the Board would "ruin" him
in the newspapers. ¶ 71. Phillips demanded that Gumm stop going
to the office, so that his presence would not interfere with the
Trustees' control over its activities. ¶ 72. Phillips told Gumm,
"No elected official shows up at his office everyday and you're
not going to." ¶ 72. Roskam told Gumm "You're a convicted
molester" and that his reputation would be ruined through a smear
campaign and other "covert activities" if he refused to sign the
bullet memo. ¶ 73. Gumm refused to comply with the group's
demands. ¶ 74.
In December, 2001, the Township Board held a regular meeting. ¶
75. The press was invited to the meeting and local police
officers were brought in. ¶ 77. Gumm, who had received no notice
that the meeting would affect either his personal interest or the
Assessor's office, did not attend the meeting. ¶ 76. At the
meeting, a press release prepared by Flickenger was distributed.
¶ 77. The press release made it clear that the Board had decided
to "censure" Gumm and had passed a "Resolution of Censure." ¶ 77. The release
explained that the Board was taking the action so that the voting
public would have "information" to use in determining Gumm's
fitness to serve as Assessor. ¶ 77. The Board failed to disclose
that there had been a settlement agreement or that it had not
found any evidence from its prior investigation from which to
conclude that Gumm had engaged in any wrongful conduct. ¶ 81.
Gumm was not presented with the opportunity to present evidence
on his own behalf or defend himself in any way, either during the
adoption of the Resolution or at the Board meeting where the
resolution was presented. ¶¶ 79-80. Roskam and Hultgren went with
Scholl to meet with local reporters and discuss the claims
against Gumm. ¶ 82.
After the passing of the Resolution, Scholl and other employees
in the Assessor's Office openly discussed the possibility of
staging work slow-downs if the office was not handled in the
manner they deemed appropriate. ¶ 84. They threatened to resort
to the Board under the auspices of the Settlement Agreement. ¶
84. The Board started openly resisting Gumm's efforts to manage
the office by removing the Assessor from the monthly agenda and
refusing to add him to the agenda even upon his request, voting
to reduce the Assessor's budget at a time when virtually no other
aspect of Township government was being reduced in any manner,
and continuing to engage in discussion with employees of the
Assessor's office regarding their employment status and
grievances against Gumm. ¶ 85. The discussions with employees
continued to undermine Gumm's authority and disrupt the
day-to-day business of the office. ¶ 85. Gumm's pastor was
contacted and told Gumm was unstable. ¶ 83. Two of the deacons in
his church were asked to meet with him to discuss his "problem"
and need for psychological and spiritual assistance. ¶ 83. In January 2002, a few weeks after the first story regarding
the resolution appeared in the newspapers, Scholl provided
Heidorn with a new set of claims regarding Gumm's conduct based
on Gumm's alleged retaliation against her and other employees for
previously bringing forth claims against him. ¶ 86. Heidorn asked
Scholl to prepare a more "official" sounding document, reviewed
the variations of this document in April and May, and then shared
the document with other members of the Board in August, 2002. ¶
87. Neither Heidorn nor Scholl told Gumm or the HR Coordinator
for the Assessor's Office about the claims, despite being
required to do so under the settlement agreement. ¶ 88.
On September 5, 2002, counsel for Scholl sent a written demand
to Gumm, claiming that he had engaged in retaliatory conduct
against Scholl in violation of both the mediation agreement and
his common law duties as an employer. ¶ 89. Gumm agreed to an
investigation of Scholl's new claims, but the Board did not
initiate an investigation in compliance with the settlement
agreement. ¶ 90. The Board did not consult the outside attorney
who had been designated under the Settlement Agreement to handle
such matters. ¶ 91. Instead, Heidorn retained the services of
attorney Kevin Gustafson and subsequently paid his fees. ¶¶
91-92. Heidorn told Gustafson that he thought Gumm was guilty as
charged before the investigation began. ¶ 92.
Gumm, who objected to Gustafson's retention and did not consent
to the Board making any determinations with respect to his
innocence or guilt, demanded that the Township Supervisor cease
and desist from any further "investigation" and any further
involvement in the business of the Assessor's office. ¶ 93. The
Board consulted with counsel, and then decided to stay any
further action. ¶ 94. Gumm then demanded that the Board provide
him and Scholl with copies of the tapes and documentary record
from the investigation of Scholl's claims, as required under the original settlement agreement. ¶ 95. The Board refused,
Gumm file suit in DuPage County Court, and the Court ordered
production of the documents. ¶¶ 96-97. Through his investigation,
Gumm learned that Scholl had a "basement full" of documents she
had taken from the Assessor's Office. ¶ 100. In her collection,
Scholl had documents written by Smith regarding the claims
against Gumm, including a document which stated that if Gumm was
elected "we are stuck with him for five years!" and asked "Can he
be removed from office it if is proven that he is guilty of
sexual misconduct, discrimination and intimidation, etc.?" ¶ 101.
Scholl abandoned the mediation process in relation to her
retaliation claim. ¶ 99. Smith eventually filed his own
retaliation claim in February 2003. ¶ 102. Smith also continued
to seek out ways to continue threatening, cajoling, and berating
those who tried to work with Gumm. ¶ 103. He threatened employees
with scriptural references to God's wrath. ¶ 103.
A few months ago, Gumm received another notice from the elders
of his church, requesting that he "temporarily step-down" from
his position as church usher until his problems, including the
dispute between him and Flickenger, are resolved. ¶ 105.
Plaintiff filed suit in this Court on November 14, 2003.
Legal Standard for a Motion to Dismiss
Under FRCP 8(a), a complaint generally need only set forth a
short and plain statement of the claim showing that the pleader
is entitled to relief. Leatherman v. Tarrant County Narcotics
Unit, 507 U.S. 163, 168 (1993). In reviewing a motion to dismiss
for failure to state a claim, the court accepts as true all
well-pleaded facts in the complaint and draws all reasonable
inferences in favor of the plaintiff. See Ameritech Corp. v.
McCann, 297 F.3d 582, 585 (7th Cir. 2002). If a complaint
fails to allege a necessary element required to obtain relief,
however, dismissal is in order. See R.J.R. Services, Inc. v. Aetna Casualty and Sur.
Co., 895 F.2d 279, 281 (7th Cir. 1989). A complaint "must at
least include the operative facts upon which a plaintiff bases
his claim." Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir.
1992). When reviewing the complaint, only factual allegations
will be considered, and legal conclusions which may be alleged
are not binding upon the court. Reichenberger v. Pritchard
660 F.2d 280, 282 (7th Cir. 1981) (citing City of Milwaukee v.
Saxbe, 546 F.2d 693, 704 (7th Cir. 1976)).
Count IV of Gumm's complaint alleges Scholl's actions in
relation to Gumm constitute a breach of fiduciary duty. Given
that this is a ruling on a motion to dismiss, this Court accepts
Gumm's facts as true and draws all reasonable inferences from
Accordingly, for the purposes of this motion, this Court will
assume that Scholl, an employee of the Assessor's Office, was
part of a campaign to destroy Gumm. Scholl worked with the other
defendants in this case to craft a meritless claim of sexual
harassment against Gumm. Defendants hoped that by threatening to
allege such a claim and, if necessary, eventually making the
claim public, they could force Gumm to leave his post as
Assessor. In connection with this plan, Scholl stole documents
from the Assessor's Office including confidential documents
and stored them in her basement. When she was in the office,
Scholl spent working hours running meetings aimed at convincing
other employees to join her in her false claim. She threatened to
retaliate against those who did not join her in her claims. She
encouraged the other employees to resist Gumm's policies and
instructions, and did so herself. She also "wired" herself and attempted to tape a conversation with Gumm without
his knowledge. She later destroyed the tape.
Rather than arguing on her motion to dismiss that the
aforementioned facts do not support a claim for a breach of
fiduciary duty, Scholl argues that the facts in the complaint are
wrong. According to Scholl, she has done nothing wrong, she was a
victim of harassment, and all of her actions are protected under
Scholl seems to be making an argument that Gumm's filing of a
lawsuit against her is a form of retaliation prohibited by Title
VII.*fn5 In order for such an argument to succeed on a
motion to dismiss, however, this Court would need to accept
Scholl's version of the facts as true instead of Gumm's
version.*fn6 Scholl presents no legal authority in support
of the proposition that this Court must accept a defendant's
unsubstantiated version of the facts as true on a motion to
This Court is under the obligation to accept Gumm's version of
the facts as true on this motion to dismiss. As a result,
Scholl's motion to dismiss Count IV is DENIED
Count V Count V of Gumm's complaint alleges that Scholl violated both
the Illinois Eavesdropping Statute and the corresponding federal
statute, 18 U.S.C.A. § 2511. Gumm claims that Scholl taped
conversations she had with him on August 24, 2000. At the time,
Scholl did not disclose to Gumm that she was taping their
conversations. Later, after being told by a police officer that
her recording was illegal, Scholl apparently destroyed the tape.
The tape is important, Gumm, claims, because it establishes what
happened on August 24, 2000, the day that Scholl claims Gumm
physically harassed her by touching her t-shirt.
In her motion to dismiss, Scholl rightfully notes that the
Illinois statute does not, for the most part, allow evidence
obtained in violation of the Eavesdropping Act to be admitted
into evidence against the party who was the unknowing subject of
the recording. See, e.g., In re Marriage of Almquist,
704 N.E.2d 68, 71 (Ill.App. Ct. 1998) ("Section 14-5 of the
eavesdropping statute provides that "[a]ny evidence obtained in
violation of this Article is not admissible in any civil or
criminal trial."). Illinois courts consider the statute's
exclusion of evidence gathered by eavesdropping to be the
legislature's express adoption of the "fruit of the poisonous
tree" doctrine. The provision is aimed at preventing unwitting
parties from having evidence admitted against them when the
evidence was acquired by means of eavesdropping.
Scholl argues that because she is prohibited from using the
recorded material against Gumm, he should not be able to use the
recorded material in proceedings against her. Neither the text of
the statute nor the decisions of the Illinois courts support
Scholl's argument that no party not even the one who was the
victim of eavesdropping should be allowed to use the ill-gotten
recording. Scholl suggests a legal regime where a victim of
eavesdropping cannot consent to the recording being played in
court, but offers no legal authority in support of this
proposition. Under this theory, she claims that because Gumm is also
prohibited from using the materials, he has suffered no damages
from Scholl's actions.
Scholl's argument is without merit. Gumm alleges a violation of
the statute and requests damages. The Illinois Eavesdropping
statute explicitly includes provisions for civil damages. See
IL ST CH 720 § 5/14-6 ("Civil remedies to injured parties. (1)
Any or all parties to any conversation upon which eavesdropping
is practiced contrary to this Article shall be entitled to the
following remedies an injunction by the circuit court prohibiting
further eavesdropping by the eavesdropper and by or on behalf of
his principal, or either . . . To all actual damages against the
eavesdropper or his principal or both . . . To any punitive
damages which may be awarded by the court or by a jury . . .").
Scholl also takes issue with Gumm's requests for injunctive
relief regarding the tape. She claims an injunction to keep her
from eavesdropping is unnecessary, as she is "highly unlikely" to
be presented with another opportunity to record Gumm. Based on
the facts alleged in Gumm's complaint, it is feasible that an
injunction may be necessary to keep Scholl from further
eavesdropping on Gumm. After arguing that even Gumm cannot allow
the tapes to be presented in any legal forum, Scholl also
requests that this Court dismiss Gumm's request for an injunction
to prevent her from relying on any representations related to the
contexts of the tape or discussing what she told a police officer
regarding the content on the tape. Scholl offers no legal
argument for why Gumm's request for injunctive relief should be
dismissed. Scholl's requests are DENIED.
Scholl again argues this Court should accept her facts rather
than Gumm's when she argues that Gumm has not alleged a claim
under the Federal Eavesdropping Act. The act states that it is unlawful for parties to intercept communications where
such action is take for the purpose of committing any criminal or
tortuous act in violation of the Constitution, federal law, or
state law. Scholl argues that she did not record because of any
illegal or tortuous purpose, but it is possible to infer
otherwise on the basis of Gumm's facts. As a result, her motion
to dismiss on the grounds that Gumm does not allege facts
sufficient to sustain a cause of action under the Federal
Eavesdropping Act is DENIED.
Scholl's request to dismiss Gumm's request for punitive damages
with regards to Count V is also DENIED. In short, all of Scholl's
requests in relation to Count V are DENIED.
Count VII, VIII, and IX
Given that Gumm has not requested relief from Scholl in Counts
VII, VIII and IX of his complaint, Scholl is DISMISSED as a named
party in regards to those Counts.
For the foregoing reasons, Scholl's motion to dismiss is
GRANTED IN PART and DENIED IN PART. This Court will not dismiss
Count IV and V or Gumm's request for punitive relief on those
counts. This Court will dismiss Counts VII, VIII, and IX with
respect to Scholl; consequently, Scholl's request to deny
punitive damages on those counts MOOT.