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Whitlow v. Martin

June 15, 2010


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


This matter comes before the Court on Defendant Timothy Martin, Scott Doubet, and Michael Stout's Motion for Summary Judgment (d/e 271) (Motion). The Plaintiffs are sixteen former employees of the Illinois Department of Transportation (Department or IDOT), Steve Whitlow, Bruce Carmitchel, Lori Coonen, Melanie Dennison, Sharmin Doering, Jileen Eisele, Janice Gower, Stuart Hunt II, Brad Jones, Catherine Kennedy, Barbara Mabie, Adil Rahman, Anthony Saputo, Cathy Scaife, Don Williams, and Jason Yoakum.*fn1 The Plaintiffs allege that the Defendants violated the Plaintiffs' First Amendment rights by laying off the Plaintiffs from the Department because the Plaintiffs are Republicans. The Defendants deny this claim and now seek summary judgment. For the reasons set forth below, the Motion is denied. Issues of fact exist regarding whether the Defendants laid off the Plaintiffs from the Department because of the Plaintiffs' political affiliation.


Political affiliation generally is not a proper basis for state employment decisions. Rutan v. Republican Party of Illinois, 497 U.S. 62, 65-66 (1990). However, political affiliation may be an appropriate consideration for certain positions that involve either policy making or access to confidential information because people in those positions could affect the ability of elected officials to carry out the mandate given by the electorate. Branti v. Finkel, 445 U.S. 507, 517 (1980); Elrod v. Burns, 427 U.S. 347, 367-68 (1976). For most jobs, however, political affiliation is not a constitutionally permissible consideration for employment decisions. Rutan, 497 U.S. at 75.

At summary judgment, the Defendants must present evidence that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The Court must consider the evidence presented in the light most favorable to the Plaintiffs. Any doubt as to the existence of a genuine issue for trial must be resolved against the Defendants. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once the Defendants have met their burden, each Plaintiff must present evidence to show that issues of fact remain with respect to an issue essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

To make out a prima facie case, the Plaintiffs must present evidence that they engaged in constitutionally protected activity and that the protected activity was the reason for the Defendants' conduct. Hall v. Babb, 389 F.3d 758 (7th Cir. 2004).*fn2 If the Plaintiffs can establish these two elements, the Defendants must present evidence of a legitimate, non-political reason for the employment decision. Id. If Defendants present such evidence, the Plaintiffs must present evidence that the stated reason is a pretext, that is a lie, and that political affiliation was the reason for the for the action. A plaintiff may meet this ultimate burden by presenting evidence of a prima facie case plus evidence of pretext. Massey v. Johnson, 457 F.3d 711, 717 (7th Cir. 2006).


After the Rutan decision in 1990, the State of Illinois categorized state jobs as either "Rutan covered" or "Rutan exempt." See Plaintiffs' Response to Defendants' Motion for Summary Judgment (d/e 292) (Response), Exhibit 12, Deposition of Ellen Schanzle-Haskins, at 265-66. The positions for which political affiliation could not be considered in making employment decisions were categorized as Rutan covered positions. The policy making and confidential positions for which political affiliation could be used in making employment decisions were categorized as Rutan exempt positions.

During the end of Republican Governor George Ryan's administration in the summer and fall of 2002, some state employees in Rutan exempt positions accepted voluntary reductions to Rutan covered positions. Plaintiffs Carmitchel, Gower, Hunt, Saputo, Mabie, and Kennedy all accepted voluntary reductions in 2002 from Rutan exempt to Rutan covered positions within the Department. Motion, Exhibit 105, Affidavit of Robert Anderson, ¶¶ 11-17. Each of them, except Hunt, maintained the same salary in the new position. Id.

Democrat Rod Blagojevich became Governor of Illinois in January 2003. Governor Blagojevich named Defendant Martin as Secretary of the Department. On February 21, 2003, Martin was flying on a state plane with a person named Louanner Peters. Robert Bensko was also on the flight. Bensko states that he overheard Martin tell Peters, "I can't wait to fire every fucking Republican at IDOT." Response, Exhibit 2, Affidavit of Robert Bensko.

In March 2003, Doubet went to work in the Governor's Office as a Legislative Liaison. Motion, Attached Exhibits (d/e 278, 279, 280, 281) (Motion), Exhibit 3, Deposition of Scott Doubet taken September 4, 2008 (First Doubet Deposition), at 6-7. Laura Norton also worked in the Governor's Office. Norton was the liaison for personnel matters between the Governor's Office, Central Management Services (CMS), and state agencies. Response, Exhibit 6, Deposition of Laura Norton taken July 22, 2009 (First Norton Deposition), at 17.*fn3 According to Norton, Doubet kept a data base of voting records of state employees. First Norton Deposition, at 75.*fn4 Norton also testified in her deposition that Doubet stated repeatedly that he wanted to fire Republicans. First Norton Deposition, at 70. In February 2004, Doubet transferred to the Department as the Bureau Chief of the Department's Personnel Management Bureau (Personnel Bureau). First Doubet Deposition, at 6.

In February 2003, Stout started working for the Department on a contract basis. On June 16, 2003, Stout became Deputy Director of Finance and Administration for the Department. Motion, Exhibit 47, Affidavit of Michael Stout, ¶ 3. Stout investigated employees, such as Plaintiffs Carmitchel, Gower, Hunt, Saputo, Mabie, and Kennedy, who took voluntary reductions from Rutan exempt jobs to Rutan covered jobs.

Motion, Exhibit 2, Deposition of Michael Stout, at 8, 16, 24-25, 45-48. Stout concluded that the voluntary reductions did not violate any personnel rule or policy. Id., at 48.

In early 2004, the Governor's Office of Management and Budget (OMB) directed the Department to reduce its number of employees, or "headcount", by approximately 200 people. Stout Affidavit, ¶¶ 4, 22. Doubet and Stout were in charge of developing a plan to accomplish the reduction in headcount. Doubet and Stout reported to Secretary Martin through Robert Millette, the Department's Director of Finance and Administration. Motion, Exhibit 44, Affidavit of Timothy Martin, ¶ 9. The process was called a Material Reorganization. The term seems to have come from collective bargaining agreements (CBAs). The CBAs allowed the Department to eliminate union positions if the Department underwent a material reorganization. Motion, Exhibit 109, Deposition of Leo Carroll, at 111. According to Defendants, Doubet and Stout contacted several leaders of organizational units within the Department to secure recommendations for positions to eliminate. Motion, Exhibit 45, Affidavit of Robert Millette, ¶ 12; Martin Affidavit, ¶ 11.

In March or April 2004, Department employee Tom Kelso claims to have walked into Doubet's office while Stout and Doubet were talking. Kelso was hired by the Department in March 2003, after Blagojevich became Governor. Reply, Exhibit 9, Deposition of Tom Kelso, at 6. Kelso was a staff assistant for special projects in March 2004. In April 2004, Kelso became the Bureau Chief for Safety Data in the Division of Traffic Safety. Id., at 5-6. According to Kelso, Stout and Doubet stopped talking and looked at Kelso when he came in. Doubet said something to the effect of, "It's ok. He's cool." Response, Exhibit 8, Affidavit of Tom Kelso, ΒΆ 12(a). Doubet had in his hand a piece of paper with something printed on it. Doubet printed off another copy and handed it to Kelso. The paper consisted of a list of names. Kelso recognized the list as a list of holdover Department employees from the previous Republican administrations. Doubet said words to the effect of, "Did we get all of them?" Kelso understood Doubet to mean all of the Republican holdover employees. Before and after that conversation, Doubet regularly referred to employees as "r's" or "them" ...

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