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Covell v. Menkis

August 5, 2008

GERALD COVELL, PLAINTIFF,
v.
HARMON P. MENKIS, TODD HLAVECK, RALPH SESCO, DARRELL WASHINGTON, JAMIE GALLO-WEINSTEIN, LEON DEVRIENDT, RON SIPEK, LORI MCKENZIE, JENNY SINGLETON, AND AMY BLOUGH, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge

OPINION

Gerald Covell filed this action under 42 U.S.C. § 1983, asserting that his constitutional rights were violated when his employment was terminated.

The Plaintiff's motion for partial summary judgment with respect to some of his claims is denied.

Summary judgment for the Defendants is granted.

I. INTRODUCTION

This is an action pursuant to 42 U.S.C. § 1983, wherein Plaintiff Gerald Covell alleges that his rights under the Due Process Clause of the Fourteenth Amendment to the Constitution were violated when his employment was terminated. The complaint includes twenty counts which are directed at ten Defendants. First, Covell alleges that he was deprived of a property interest in his employment when he was terminated without being afforded either a pre-termination hearing or any post-termination process to challenge his discharge. Second, he contends he was denied certain liberty interests without due process of law when he was terminated from the Illinois Deaf and Hard of Hearing Commission without being afforded certain procedural safeguards.

The Plaintiff claims he is entitled to partial summary judgment against each Defendant regarding the issue of liability in each of the counts which alleges the deprivation of a property interest. The Defendants contend that summary judgment is warranted on all claims because the Plaintiff is unable to establish the denial of any clearly established constitutional rights.

II. FACTUAL BACKGROUND

(A)

Plaintiff Gerald Covell was employed as the Director of the Illinois Deaf and Hard of Hearing Commission ("IDHHC" or "the Commission") from November 1998 through August 8, 2003. The Commission is an agency of state government created by the "Deaf and Hard of Hearing Commission Act," (20 ILCS 3932/1 et al.), which coordinates services for and advocates on behalf of deaf and hard of hearing persons in Illinois.

The Defendants' tenures as commissioners for IDHHC were as follows:

Amy Blough: 6/19/98--12/2/03;

Leon Devriendt: 6/25/03--11/14/07;

Todd Hlavacek: 2/28/02--9/10/04, Vice-Chairman in 2003;

Jamie Gallo-Weinstein: 5/19/03--1/17/06;

Lori McKenzie: 2/29/00--11/14/05;

Harmon Menkis: 2/29/00--11/14/05, Chairman in 2003;

Ralph Sesko: 2/29/00--11/14/06;

Jenny Singleton: 1/23/06--present;

Ron Sipek: 2/28/02--11/14/07; and

Darrell Washington: 11/14/97--11/14/03.

On August 8, 2003, each of the Defendants voted in favor of terminating Covell from his position as Director.

(B)

In 1999, Covell drafted a set of by-laws for the commissioners' consideration. This included a section headed "Director" which included the following pertinent language: "(1) The Director shall be the executive officer of the Commission; shall be hired, supervised, and evaluated by the Commission; and shall serve at the pleasure of the Commission. . . . (3) The Director shall be afforded the same rights and privileges as outlined in the Personnel Code (20 ILCS 415), except for hiring." In 2000 and/or 2001, Covell had several conversations with the commissioners regarding the Illinois Department of Central Management Services' ("CMS") attempt to classify the Director's position. The Plaintiff informed the commissioners that CMS had determined that the nature of the Director's duties were such that the position would not be fully covered by all jurisdictions of the Personnel Code.

The Defendants allege that in discussions regarding the CMS determination, commissioners wanted to follow the law, which stated that other than hiring, evaluation and termination, the Director position was covered by the Personnel Rules. The Plaintiff disputes this allegation, contending that members of the Commission only wanted the flexibility to hire a Director without being subject to the constraints of the Personnel Code. After the CMS determination and discussion with commissioners, and at the direction of CMS, the Plaintiff prepared a request to the Illinois Civil Service Commission to exempt the Director position from Jurisdiction B of the Personnel Code.

In early 2002, the Plaintiff drafted a proposed revision to the Commission's by-laws in keeping with the commissioners' wishes to follow the law and the exemption of the Director position as determined by CMS. Covell claims the objective of the revision was to provide the Director with the same rights as those available under the Personnel Code, other than rights related to hiring. The revision, which was adopted at the June 6, 2002 Commission meeting, deleted the phrase "except for hiring" from paragraph 3 of the section regarding the Director's position. Following the adopting of the changes, Article VI, Section 1, paragraph 3 read, "The Director shall be afforded the same rights and privileges as outlined in the Personnel Code (20 ILCS 415)."

The Commission implemented certain administrative rules which became effective on April 21, 2003. The Plaintiff notes that Section 3300.380(a) of the Rules of the Commission provides as follows:

a) The Director shall be the executive officer of the Commission; shall be hired, supervised, and evaluated by the Commission; and shall serve at the pleasure of the Commission. A 2/3 majority vote of the total membership, discounting vacant seats not currently filled by the Governor, at a regularly scheduled or ...


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