United States District Court, S.D. Illinois
May 12, 2005.
SHERYL ZOLLNER, Plaintiff,
KAREN LONG and ROBERT EASTER, Defendants.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
MEMORANDUM and ORDER
Now before the Court is Defendants Karen Long and Robert
Easter's motion for summary judgment (Doc. 14) and memorandum in
support (Doc. 17) as to Count One of Plaintiff Sheryl Zollner's
complaint against Long and Easter. Zollner alleges Long and
Easter violated 42 U.S.C. 1983 by retaliating against her for
exercising her First Amendment rights (Doc. 1).*fn1 Zollner
responded in opposition at Doc. 18, to which Long and Easter
replied at Doc. 19. This matter being fully briefed, the Court
begins its analysis with a brief recitation of the factual
background and procedural history.
Factual Background and Procedural History
Zollner was employed by the University of Illinois at their
Cooperative Extension Service office in Sparta, Illinois from
1982 until June 21, 2002, when she resigned. Long was Zollner's supervisor from the date Long was hired in 1983 or 1984
until Zollner resigned in 2002. Easter was Long's supervisor and
responsible for the University of Illinois Extension Program,
which included the office where Zollner worked. Zollner initially
worked at the office as a secretary. She then assumed the
position of Community Worker in 1993. As a Community Worker
Zollner was responsible for 4-H programming and Homemaker's
Extension Association programming in Randolph County, Illinois.
Then in March 1998, Zollner voluntarily resumed the position of
office secretary as she believed her Community Worker position
was going to be eliminated. However, Zollner returned to the
Community Worker position in August 1999, and continued in that
position until her resignation on June 21, 2002, which was
formally accepted on June 22, 2002. Zollner states she returned
to the Community Worker position as she witnessed "some things as
[secretary] that I felt were unethical, unprofessional." Doc. 24,
Exh. B-Part I, p. 17.
Zollner first witnessed alleged unethical behavior in the
summer of 1998 when working as the office secretary . Long
approached Zollner and asked if she would be willing to do some
typing for Steve Keith of Alltech Research, who owned several
greenhouses. Long told Zollner that in addition to her work at
the office, she does business with Keith. Zollner told Long she
would do the work on her off-time at home. Zollner ended up
typing and designing three brochures at Long's request for Keith
on her off-hours. However, Long instructed Zollner to run the
brochures on the office copier and fold them while she was at
work. Long paid her for her the time she worked at home on the
As well, Long later instructed Zollner to make a guide
outlining various types of weeds using University publication
materials, apparently for Keith, while at the office. Zollner did
so, and later that summer a huge shipment of copies of the weed
guide Zollner had made arrived at the office. Zollner is unsure whether the University material on
weeds was copyrighted. Long also had Zollner bind materials for
Keith and Alltech.
In the fall of 1998, Zollner was in charge of paying the office
staff's work cell phone bills. Zollner noticed that Long's bill
had tripled, and upon looking at the itemizations, Zollner
noticed that most of the calls were to Keith's business. As well,
Zollner observed Keith coming into the office on a daily basis
and meeting with Long for a couple of hours behind closed doors.
Keith would also constantly call Long at the office. Further,
Zollner observed Long ordering office supplies for Keith using
the University's tax exempt status and educational discount.
However, Long would keep the bill separate from office bills and
Keith would pay his portion.
Zollner had a conversation with Long where she told her she did
not think it was right that Keith was ordering supplies through
the office and that it was a conflict of interest for Long to be
working for Keith. Zollner also mentioned Long's cell phone bills
and how Keith was always calling her and coming by to see her at
the office. Zollner states that Long simply replied that she did
not realize that Keith was ordering supplies with the office's
tax exempt and educational discount status. She also apologized
for people's concern about her conflict of interest. Thereafter,
Keith stopped coming by the office, but instead, Long would take
two and three hour lunches, and Zollner believes she was meeting
with Keith during that time. Long's cell phone usage did not
Zollner then resumed the position of Community Worker and
Jennifer Jacobsen took over her former position as office
secretary. At some point Jacobsen approached Zollner and asked if
Long was working for somebody else. Zollner informed Jacobsen
that Long was working for Keith and Alltech Research. At that
point Jacobsen shared with Zollner that office equipment was being checked out by either Long or Keith and it would be gone
for extended periods of time. As well, Jacobsen told Zollner that
the office was paying for a subscription for Keith to an internet
agriculture database, and Keith was not reimbursing the office.
In January 2000, the University conducted an investigative
audit of the Extension Office. Zollner states that Tony Spurlock,
the auditor, and Pat Buchanan, the regional director, told
Zollner that they were investigating Long because of an anonymous
letter they had received. Zollner did not send the letter, nor
does she know who sent it. As part of the audit, Zollner gave
statements regarding her observations of Long's involvement with
Alltech Research. Zollner states that she never learned the
results of the January 2000 audit, but that the atmosphere in the
Extension Office became hostile and communication between the
office staff deteriorated after the audits.*fn2
Zollner states that Long told her that she blamed Jacobsen for
the audit. As a result, Zollner asserts that Long began to harass
Jacobsen by using a harsh tone of voice and by giving her short
deadlines on work assignments.
In June 2000, Jacobsen, Zollner, Long, and Buchanan met
regarding the audit. Apparently the audit report had just been
completed, but the results were only going to be shared with a
few people at the University and with Long. Consequently, Zollner
and Jacobsen did not learn the results of the audit at the
meeting. But Zollner did discuss her feelings regarding Long's
conflict of interest and the atmosphere in the office. Jacobsen
discussed how she felt that Long was harassing her as a result of
the first audit. Jacobsen later resigned on October 30, 2000.
After the June 2000 meeting, Long had a private line installed
in her office. Long told the staff that calls from her family and all direct calls
would be made to the new private line instead of to the main line
that the secretary answered. If Long did not answer her private
line then it would ring out front in the reception area. However,
all of Long's family calls and other business calls continued to
come through the main line, and whenever Zollner would answer
Long's private line, the person would hang up.
A follow-up audit occurred approximately one year after the
initial investigative audit. At the audit, Zollner disclosed her
concerns regarding Long's work for Keith and Alltech. Zollner
also expressed her concerns regarding Long's new private line and
Long's extended absences from the office. The auditors also
questioned Zollner regarding the office work atmosphere.*fn3
After the investigative audit, Zollner claims Long started
harassing her, initially by insisting that Zollner get
pre-approval from Long before taking sick leave. Then in March
2001, Pat Buchanan, the regional director, instructed Zollner to
start emailing her calendar to Buchanan at the beginning of each
week, and then email a report of how she actually spent her time
at the end of each week. Buchanan would also approve her overtime
or comp time. Prior to March 2001, Zollner would prepare monthly
reports accounting for her time for Long. Then in April 2001,
Zollner's reporting patterns where changed again when Long
instructed Zollner that she would approve Zollner's calendar by
email at the beginning of each week and adjust it so that no
overtime would accrue. Zollner was confused as overtime and comp
time was never a problem before and were not for other Community
Workers. Long also told Zollner that they would meet to discuss
any adjustments Long wanted Zollner to make so that Zollner would not
have any overtime or comp time. However, Long would not
consistently meet with Zollner to go over her schedule. Long also
instructed Zollner not to answer the office phone when the
secretary stepped aware from her station.
In May 2001, Zollner was told by Long that she would no longer
be working with the 4-H softball committee. Later on May 22,
2001, Long told Zollner to avoid taking work-related phone calls
at home after working hours in order to avoid accruing overtime
pay, as it had to be preapproved. Additionally, Long told Zollner
her reporting patterns would again change. Zollner was to now
write two additional monthly reports in addition to a monthly
success story. Zollner was also to meet with Long at the
beginning of each month to review the reports and to discuss if
Zollner was meeting her job expectations. However, Long only met
once with Zollner.
Zollner alleges she was ostracized during a June 2001 meeting
with Dan Nelson, the new regional director, when Nelson told
Zollner that the office must operate as a team, and that if they
could not work as a team, they would need to seek other
employment. As well, in June 2001, Long changed Zollner's job
title from Community Worker, Youth and Family, to Community
Worker, Youth and 4-H. As a result, Zollner was no longer working
with the Homemaker's Extension Association. Additionally, she was
now required to attend 4-H club meetings in the evening. However,
Zollner was still not to accrue overtime or comp time.
Thereafter, on July 16, 2001, Zollner received her evaluation
from Long, which was not as high as it had been in the past.
On August 1, 2001, Long informed Zollner that her University
cell phone contract would not be renewed, when other employees'
contracts were being renewed. That same month, Zollner's office
was moved into a meeting room. Prior to that she had her own
office, as did all the employees other than the secretary who sat
in the front reception area. Long then moved into Zollner's office and Long's old office remained empty. Zollner
expressed dissatisfaction with the move to Long and also
contacted Nelson. Zollner did retain all of her supplies and
equipment that she had in her prior office, but was now in the
meeting room where partitions were put up to form a cubicle
around her desk, resulting in a smaller office space. On August
28, 2001, Long informed Zollner that her new office in the
meeting room would not be painted. Long also failed to order a
nameplate for the door of her new office.
On October 1, 2001, Zollner was offended when Long distributed
the following quote to the entire office staff: "Great minds
discuss ideas. Average minds discuss events. Small minds discuss
people." Thereafter, on October 5, 2001, after reviewing
Zollner's schedule, Long insisted that Zollner work the afternoon
of October 12, 2001 instead of in the morning.
On October 17, 2001, Long refused to give Zollner a copy of
Long's schedule so that Zollner could contact Long whenever
necessary to seek approval for certain tasks, and instead
insisted that the two now meet weekly to discuss approval of
Zollner's tasks. Then on November 29, 2001, Long put a note in
Zollner's personnel file regarding inappropriate reporting of
sick leave, but did not tell Zollner that she reported her sick
leave inappropriately. Zollner states that Long would not give
her written confirmation that her sick leave and vacation days
had been approved.
On December 5, 2001, Zollner asked Long to approve overtime,
but Long would only approve a half hour of the time requested to
attend a 4-H meeting. Later on December 20, 2001, Long told
Zollner that she had taken sick leave on December 10, 2001
without the required preapproval, when Zollner states that Long
had actually pre-approved the leave.
Zollner reviewed her personnel file during a January 2, 2002
meeting with University administrator Bill McNamara and Nelson.
At the meeting, Zollner learned that Long had placed several unfavorable notes in her personnel file. As a result, on
January 18, 2002, Zollner requested that a number of items be
removed from her personnel file stating they contained inaccurate
information, and also requested that a number of explanatory
documents relating to Long's negative evaluations be added to the
file. Long refused to remove documents from Zollner's personnel
file but did agree to append the file with information provided
by Zollner. Additionally, Zollner filed an official grievance
which was denied. Zollner also wrote a letter to McNamara stating
that she was being unfairly disciplined because Long informed her
that she must restrict her lunch to between noon and 1 p.m.
unless otherwise approved, in addition to obtaining prior
approval to leave the office to run errands.
In May 2002, Long gave Zollner a negative evaluation. Then on
May 23, 2002, Long refused to approve a modification of Zollner's
work schedule that would result in overtime. Zollner also
reviewed her personnel file where she discovered Long had added
additional negative remarks. Zollner then resigned in June 2002
as a result of all the alleged harassment.
On April 5, 2004, Zollner filed this matter against Long and
Easter, in both their official and individual capacities. Count
One asserted a Section 1983 action against Long and Easter. Count
Two asserted a state law retaliatory discharge claim against Long
and Easter. Long and Easter then filed a motion to dismiss
claiming: (1) the suit is barred by the Illinois Savings Statute;
(2) Zollner cannot sue state employees in their official
capacities; and (3) a retaliatory discharge case cannot be
brought against anyone other than the employer (Doc. 5). The
Court granted the motion to dismiss in that the Court dismissed
Count One as to Long and Eater in their "Official Capacity", but
denied the motion to the extent Long and Easter were sued in
their "Individual Capacity" (Doc. 20). As well, the Court
dismissed Count Two in its entirety. Standard Governing Summary Judgment
Summary judgment is proper if the pleadings, depositions,
interrogatory answers, admissions, and affidavits reveal that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Vukadinovich v. Board of School Trustees of North Newton School
Corp., 278 F.3d 693, 698 (7th Cir. 2002). The Court is to view
the record "in the light most favorable to the non-moving party."
Dyrek v. Garvey, 334 F.3d 590 (7th Cir 2003), citing
FEDERAL RULE OF CIVIL PROCEDURE 56(c).
The mere existence of an alleged factual dispute is not
sufficient to defeat a summary judgment motion. Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v.
Franklin School District, 293 F.3d 989, 996 (7th Cir. 2002).
Rather, to successfully oppose summary judgment, the nonmovant
must present definite, competent evidence in rebuttal.
Salvadori, 293 F.3d at 996, citing Vukadinovich,
278 F.3d at 699.
In Count One Zollner brings a claim for retaliatory discharge
for exercising her First Amendment free speech rights pursuant to
Section 1983 against Long and Easter in their individual
capacities. In response, Long and Easter argue that summary
judgment should be awarded in their favor as: (1) Zollner does
not allege sufficient adverse actions to state a Section 1983
First Amendment retaliation claim; (2) Zollner's claim against
Easter fails as Easter did not participate in the alleged
harassment, retaliation or blackballing that allegedly caused
Zollner to resign her position; and (3) Zollner's claim against
Long fails as Zollner cannot establish that the statements she
made to University auditors was a substantial or motivating
factor in Long's alleged retaliatory actions against her. The
Court will address each argument in turn. 1. Whether Zollner alleges sufficient adverse actions to state
a Section 1983 First Amendment retaliation claim.
Long and Easter argue that Zollner does not allege sufficient
adverse actions to state a Section 1983 First Amendment
retaliation claim based on adverse employment actions. The Court
A Section 1983 case does not require an adverse employment
action within the meaning of the antidiscrimination statutes,
such as Title VII of the Civil Rights Act of 1964. See Power v.
Summers, 226 F.3d 815, 820 (7th Cir. 2000). The degree of
adversity required in First Amendment retaliation claims brought
under Section1983 is substantially lower. Bart v. Telford,
677 F.2d 622, 624 (7th Cir. 1982). Rather, "[a]ny deprivation . . .
that is likely to deter the exercise of free speech . . . is
actionable." Power, 226 F.3d at 820. In Bart, the United
States Court of Appeals for the Seventh Circuit held that a
campaign of "petty harassment", including ridicule for bringing
in a cake to celebrate another co-worker's birthday, in response
to views expressed during a political campaign was actionable
under Section 1983 as a violation of the First Amendment. Id.
The Seventh Circuit reaffirmed that holding seven years later
in Pieczynski v. Duffy, 875 F.2d 1331, 1333 (7th Cir. 1989),
explaining that: "Harassment of a public employee . . . violates
the First Amendment unless the harassment is so trivial that a
person of ordinary firmness would not be deterred from holding or
expressing those beliefs. The harassment need not be so severe as
to amount to constructive discharge that is, it need not force
the employee to quit, by making work unbearable." Cf. McDonnell
v. Cisneros, 84 F.3d 256 (7th Cir. 1996). Moreover, the
Seventh Circuit has repeatedly held that whether or not
harassment is sufficiently severe to give rise to liability under
Section 1983 is a question of fact for a jury to decide. Wallace
v. Benware, 67 F.3d 655 (7th Cir. 1995); Bart,
677 F.2d at 625. As a result, the Court finds, consistent with Wallace and
Burt, that a question of fact exists as to whether or not the
harassment alleged here is sufficiently sever to give rise to
liability under Section 1983. Zollner alleges a series of actions
by Long that Zollner categorizes as harassing. Zollner states
that prior to her complaints about Long in the second audit,
Zollner did not have to have her schedule pre-approved.
Additionally, Long informed Zollner she was not longer able to
accrue overtime or comp time even though other workers in the
same position throughout the state were still allowed to accrue
both. As well, Zollner states that Long would refuse to meet with
her to approve her calendar, leaving Zollner in a difficult
position to know if she was allowed to attend certain meetings or
not. Further, Zollner states that in the spring and summer of
2001, Long moved Zollner from her office into a cubicle while an
office sat vacant. Zollner also alleges that after her complaints
regarding Long, Long required that Zollner get pre-approval for
sick leave. It is not for the Court to decide if these actions in
total amount to sufficiently severe harassment to give rise to
liability under Section 1983 that is for a jury to decide.
2. Whether Zollner has a sufficient Section 1983 First
Amendment retaliation claim against Easter.
Long and Easter argue that Zollner's claim against Easter must
fail as Easter did not participate in the alleged harassment,
retaliation or blackballing that caused Zollner to resign her
position. The Court notes that Zollner does not address this
argument in her response in opposition to Long and Easter's
motion for summary judgment. The Court agrees with Long and
To recover damages under Section 1983, a plaintiff must
establish that a defendant was personally responsible for the
deprivation of a constitutional right. Sheik-Abdi v. McClellan,
37 F.3d 1240, 1248 (7th Cir. 1994). Of course, Easter cannot be
personally liable under a theory of respondeat superior. Jones
v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988).
However, "`[a]n official satisfies the personal responsibility requirement
of section 1983 . . . if the conduct causing the constitutional
deprivation occurs at [his] direction or with [his] knowledge and
consent.'" Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985),
citing Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982).
That is, he "must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye. . . ." Jones,
856 F.2d at 992. Supervisors who are "merely negligent in failing to
detect and prevent subordinates' misconduct are not liable,
because negligence is no longer culpable under Section 1983."
Jones, 856 F.2d at 992. In short, some causal connection or
affirmative link between the action complained about and the
official sued is necessary for Section 1983 recovery.
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983).
In the case at bar, the only allegation Zollner makes as to
Easter is in her complaint where she states that she "reported
this retaliation/harassment to Karen Long's supervisors,
particularly, Robert Easter, but to no avail." Doc. 1, page 2.
However, Zollner later states in her deposition that she does not
know Easter's title, she never met him, she has never talked to
him, nor has she ever received a letter or e-mail from him. Doc.
24, Exh. B-Part III, p. 113-114. Additionally, Easter, in an
affidavit submitted to the Court, states that he has no
recollection of having ever met Zollner or ever observing or
supervising her work. Doc. 24, Exh. C, p. 1. Easter also states
that he has never personally participated in, caused or
acquiesced to any employment decision or action directed at
Zollner. Doc. 24, Exh. C, p. 1-2. Further, Easter states that he
has never personally received a complaint or grievance of any
kind from Zollner regarding the terms or conditions of her
employment, nor did Easter participate in the evaluation of any
such complaint or grievance. Doc. 24, Exh. C, p. 2.
The record before the Court reveals no genuine issue of
material fact as to whether or not Easter was personally responsible for Zollner's alleged
deprivation of a constitutional right. Zollner has not presented
definite, competent evidence in rebuttal to Long and Easter's
evidence that Easter was not involved in, directed, knew or
consented to the retaliatory conduct at issue herein. Cf.
Salvadori, 293 F.3d at 996. Accordingly, the Court grants
summary judgment in Easter's favor as to Count One.
3. Whether Zollner has a sufficient Section 1983 First
Amendment retaliation claim against Long.
Long and Easter argue that Zollner cannot establish that the
statements Zollner made to University auditors was a "substantial
or motivating factor" in Long's alleged retaliatory actions
against Zollner. To establish First Amendment retaliation, a
plaintiff must establish that (1) the speech in question is
constitutionally protected, and (2) that it was a substantial, or
motivating, factor in the employer's retaliatory actions. Brooks
v. University of Wisc. Bd. of Regents, ___ F.3d ___, 2005 WL
1023025 (7th Cir. 2005); E.g., Carreon v. Ill. Dep't of Human
Servs., 395 F.3d 786, 791 (7th Cir. 2005). If the plaintiff
establishes these elements, the burden shifts to the government
to prove that it would have taken the same action in the absence
of the protected speech. Id.
As Long and Easter do not challenge whether Zollner's speech is
constitutionally protected, we turn to the second element:
whether Zollner's complaints were a substantial or motivating
factor in Long's alleged retaliatory actions.*fn4 Zollner
claims it is her complaints made during the second investigative audit in January 2001 that
constitutes the speech that gave rise to Long's alleged
harassment. While Long and Easter argue Zollner alleges it was
after the first audit in 2000 that Zollner's complaints date back
to, that is not the case. Zollner specifically states in her
complaint that it was at the second audit in January 2001, "at
which time Sheryl Zollner provided additional information
concerning what she considered violations of state law and
University of Illinois policies by her immediate supervisor,
Karen Long." Doc. 1, p. 2. Prior to that, Zollner does not make
specific allegations that she made any complaints regarding Long
that resulted in harassment.
Zollner's first allegation of harassment occurred right around
the time of the second audits. In January 2001, Long refused to
approve Zollner's sick leave as she did not get preapproval for
it. Then in March 2001, Long started changing Zollner's reporting
patterns. These actions were taken within enough time of the
audit for the court to find an inference that the actions were
related to Zollner's comments. Cf. Kelly v. Municipal Courts of
Marion County, Ind., 97 F.3d 902 (7th Cir. 1996). Further, as
stated previously, after a plaintiff in a First Amendment
retaliation claim proves that the defendant's actions were
substantially motivated by the plaintiff's constitutionally
protected speech, the defendant has an opportunity to establish
that it would have taken the same action in the absence of the
plaintiff's exercise of his rights under the First Amendment.
See Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004);
Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999).
However, Long and Easter do not attempt to establish that they
would have taken the same actions in the absence of Zollner's
exercise of her rights under the First Amendment in their motion for summary judgment. Therefore, the
timing of the harassment to the audits is enough for this Court
to find that a question of fact exists as to whether or not
Zollner's speech was substantial or motivating factor in Long's
alleged retaliatory actions so as to survive summary judgment.
Cf. Vukadinovich v. Board of School Trustees of North Newton
School Corp., 278 F.3d 693 (7th Cir. 2002); see also Wood v.
Cottey, 2004 WL 3315376 (S.D. Ind. 2004).
The Court hereby GRANTS in part and DENIES in part
Defendants' motion for summary judgment (Doc. 14). The motion is
granted in that the Court grants summary judgment in favor of
Defendant Easter and against Plaintiff Zollner as to Count One.
The motion is denied in that the Court denies summary judgment
as to Count One against Defendant Long. Therefore, all that
remains of Plaintiff Zollner's complaint is her claims in Count
One against Defendant Long.
IT IS SO ORDERED.