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Moss v. Martin

February 6, 2009

WILLIAM H. MOSS, PLAINTIFF,
v.
TIMOTHY MARTIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on the parties' cross-motions for summary judgment. Plaintiff's Motion for Summary Judgment (d/e 62); Defendants' Motion for Summary Judgment (d/e 63). Plaintiff William H. Moss claims that the Defendants violated his First Amendment rights by firing him from his Illinois state job based on his political affiliation. Both parties move for summary judgment. For the reasons set forth below, the Defendants are entitled to qualified immunity. Therefore, Defendants' Motion for Summary Judgment is allowed, and Plaintiff's Motion for Summary Judgment is denied.

STATEMENT OF FACTS

In 1990, the Supreme Court held that the First Amendment prohibited the state of Illinois from making promotion, transfer, and hiring decisions based on political affiliation, except for those confidential and policy-making positions for which political affiliation was an appropriate consideration. Rutan v. Republican Party of Illinois, 497 U.S. 62, 75-79 (1990). In response to this decision, the state of Illinois examined state positions to identify those positions for which political affiliation was an appropriate consideration. The Illinois Department of Central Management Services (CMS) was the single state agency authorized to make these determinations. Memorandum of Law in Support of Defendants' Motion for Summary Judgment (d/e 64) (Defendants' Memorandum), Exhibit 9, Declaration of Larry Plummer, at ¶ 4. CMS is the state personnel agency authorized to write and update job descriptions for all state employees in the executive branch, subject to review by the Civil Service Commission. Riley v. Blagojevich, 425 F.3d 357, 361 (7th Cir. 2005).

CMS officials used criteria developed by the law firm of Jenner & Block and the consulting firm Ernst & Young to identify positions for which political affiliation would be an appropriate consideration in making employment decisions. Plummer Declaration, ¶ 6. If CMS officials concluded that political affiliation was an appropriate consideration for a particular position, CMS designated positions as "Rutan-exempt." The employing agency did not have the authority to change such a CMS designation. Id. ¶ 7.

In 1992, CMS designated the position of Chief of the Highway Sign Shop (Position) for the Illinois Department of Transportation (Department) to be Rutan-exempt. Id. ¶ 8. This Court and the Court of Appeals have previously described in detail the CMS official Position Description (Position Description) for the Position. Opinion entered May 16, 2005 (d/e 11), at 7-11; Moss v. Martin, 473 F3d 694, 697-98 (7th Cir. 2007). The Court will not repeat that discussion here. The Court notes, however, that CMS was incorrect in its analysis of the Position Description. The Position Description did not contain enough information to determine whether political affiliation was an appropriate consideration for making employment decisions for the Position. Moss, 473 F.3d at 699-700.

In September 2000, Moss began working in the Position. The Position Description remained the same throughout his tenure. The Position remained a Rutan-exempt position throughout his tenure. The Position was also a technical position that was exempt from the requirements of the civil service rules under the Illinois Personnel Code. See Defendants' Memorandum, Exhibit 6D, Report of Non-Code Titles in Positions Exempt from Rutan for Agency Transportation dated February 21, 2002, at bates stamp no. 05088, and Exhibit 11, Email from Brian Piersma and attached Notice dated March 24, 2003, at bates stamp no. 05148; Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment (d/e 66) (Plaintiff's Memorandum), Exhibit 11, Deposition of Jacob Miller (Miller Deposition), at 16. As such, the Position was known as "double-exempt." Id. As a double-exempt position, the Department officials could hire and fire the holder at will, and, according to the CMS designation, could use the holder's political affiliation as a basis for an employment decision. Moss could have challenged the accuracy of the Position Description and sought modification. Riley, 425 F.3d at 362. Moss never made such a challenge.

In January 2003, Rod R. Blagojevich, a Democrat, became Governor of Illinois. Blagojevich was the first Democrat to hold the office of Governor in Illinois since 1977. After Blagojevich took office, Defendant Timothy Martin became Secretary of the Department; Defendant Robert Millette was in charge of the Department's Office of Finance and Administration, and Brian Piersma was the Bureau Chief of the Department's Bureau of Personnel Management.

In the summer of 2003, Jacob Miller, a Department employee who worked under Millette, was directed to identify all "double exempt" positions in the Department. Miller Deposition, at 16-17. On December 22, 2003, Miller sent an email to Millette. The email stated, "Robert, William H. Moss, Sr. is a double exempt employee in traffic safety and is also a Sanagmon County Republican Precinct Committeeman. He should be fired don't you think? The guy is in the paper, renewing his will to work for the other team." Plaintiff's Memorandum, Exhibit 1, Miller email dated December 22, 2003. Millette responded, "Yes, do the paperwork." Id. Miller forwarded his original email and Millette's response to Piersma. The Department then started the process of firing Moss.

Martin signed Moss' termination letter on April 26, 2004. Defendants' Memorandum, Exhibit 13, Letter dated April 26, 2004, from Martin to Moss. The body of the letter stated:

Our records indicate that you are currently employed with the Illinois Department of Transportation as a Technical Manager VI in a double exempt status, position number PW416-23-50- 604-00-01. Therefore, please consider this letter as notice of your termination, effective at the end of business today. You will receive two weeks severance pay.

The necessary state forms will follow shortly.

Thank you for your service to the state of Illinois.

Id. No Defendant, or anyone else, independently evaluated the Position to determine whether political affiliation was a ...


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