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Roth v. Yingling

July 8, 2010


The opinion of the court was delivered by: Honorable David H. Coar


This civil-rights suit arises from a purported "New Year's purge" at the Avon Township Assessor's Office, in which the newly elected township administration discharged Plaintiffs from their public employment in retaliation for their support of the losing slate. Plaintiffs have filed suit under 42 U.S.C. § 1983 and 42 U.S.C. § 1985, alleging that Defendants violated and conspired to violate their First and Fourteenth Amendment rights to free speech and due process. Defendants Samuel Yingling and Avon Township have moved to dismiss Count I of Plaintiffs' complaint, and all Defendants have moved to dismiss Counts II-III. (Count IV, a supplemental state-law claim, is not a subject of the present motion). For the following reasons, Defendants' motion is GRANTED in part and DENIED in part. Count I is dismissed as against Defendant Yingling only. Counts II-III are dismissed as against all Defendants.


The relevant facts alleged in the complaint, which the court must take as true for present purposes, are as follows:

Prior to April 2009, Plaintiffs were all employed by the Avon Township Assessor's Office as deputy assessors (certified by state-administered examination), with tenures in the office ranging from four to fifteen years. In April 2009, the incumbent slate in Avon Township, which included then-Township Assessor Rick Dishman (not to be confused with plaintiff Michael Dishman) and Township Supervisor Shirley Christian, was defeated in a municipal election. Among the incoming regime were Defendants Bryce Carus, the new Township Assessor, and Samuel Yingling, the new Township Supervisor. Yingling took office in May 2009. Carus, pursuant to Illinois law, took office in January 2010.

Throughout the campaign and election, Plaintiffs publicly supported the incumbent slate and opposed the Yingling-Carus ticket. Almost immediately after Yingling took office, he "attempt[ed] to assert authority over the personnel decisions, work hours, and other related matters for the Avon Township Assessor's Office." To this end, Yingling removed (or had removed) Rick Dishman's name from the entrance of the Avon Township offices, even though Rick Dishman would not leave office for another eight months (i.e., when Carus took over in January 2010). He "advised" Plaintiffs that they were required to turn in their keys to him by December 31, 2009, since they would not be working for the Assessor's Office after that date, and he "threatened" them that they would not receive their paychecks if they failed to do so. He closed the Assessor's Office on December 31, 2009, even though Rick Dishman, the man properly in charge of the office, said it would be open that day. He "used his official powers" to change certain locks at Township Hall, including the entrance to the Assessor's Office, sometime around December 30, 2009. Lastly, he extended his "unlawful control" over the Assessor's Office by telling Plaintiff Heckel that she could not work on some (unspecified) day during the last week of December 2009, because the office needed to move her desk and use it for some other purpose. So much for Yingling's role in the alleged conspiracy.

Carus, for his part, lined up replacements for the soon-to-be-discharged Plaintiffs before he took office and arranged for the replacements to receive training in December 2009. (They were, the complaint adds, wholly unqualified and utterly lacking in relevant experience.) Even before he took office, Carus indicated to Plaintiffs at various times that they would be out of a job come January 1, 2010. On December 30, 2009, Carus personally delivered a termination letter to Rust. On January 4, 2010, Rust-along with the other Plaintiffs-nevertheless reported to work, since "they had not been properly terminated by any person with lawful authority to do so prior to that time." But they could not get into the building, since Yingling and Carus had "conspired" to change the locks as of December 30, 2009. Carus arrived at the office in due course and asked them what they were doing there and whether they had received their termination letters. Plaintiffs responded that they did not work for Carus at the time they received their purported termination letters, so they were just dutifully reporting to work. Unimpressed, Carus fired them all on the spot. He explained, "I want my own people."

Other members of the Avon Township Board knew (or at least turned a blind eye to the fact) that Carus and Yingling intended to fire any employees of the Assessor's Office who had supported Rick Dishman. This "policy, custom or practice" of "ring out the old, bring in the new" that Yingling and Carus imposed was new to Avon Township, or at least to the Assessor's Office. Prior to Yingling and Carus's election, the Assessor's Office "had always employed individuals irrespective of any election cycle or Assessor's term of office;" thus, employees continued on "so long as they desired to do so and performed their duties properly," as did Plaintiffs. For instance, Heckel served under three different Township Assessors, while Roth served under two, without ever having to be rehired or reappointed on account of municipal regime change.


To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), that is, "a claim to relief that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (Twombly applies to "all civil actions"). This requirement imposes two relatively low hurdles. First, a complaint "must describe the claim in sufficient detail to give the defendant 'fair notice of what the claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1964). Second, the allegations "must plausibly suggest that the defendant has a right to relief, raising that possibility above a 'speculative level.'" Concentra, 496 F.3d at 776. If the allegations do not suggest a right to relief-if for instance, a plaintiff relies merely on conclusions, labels, or formulaic recitations of the elements of a cause of action-a Rule 12(b)(6) motion should be granted. See Twombly, 550 U.S. at 570.


Count I: First Amendment Retaliation Defendants Yingling and Avon Township (but not Carus) argue that Plaintiffs fail to state a First Amendment retaliation claim against them. The court agrees with Yingling but not with Avon Township.

To establish a prima facie case of retaliation under the First Amendment, Plaintiffs must ultimately show that (1) they engaged in activity protected by the First Amendment; (2) they suffered a deprivation likely to deter First Amendment activity in the future; (3) the speech was at least a motivating factor behind Defendants' decision to take the retaliatory action. E.g., Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). In the "context of public employees who allege that their employers retaliated against them based on assertions of First Amendment rights,... a § 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." Mosely v. Bd. of Educ., 434 F.3d 527, 533-34 (7th Cir. 2006) (quoting Spiegla v. Hull, 371 F.d3 928, 941 (7th Cir. 2004)). Plaintiffs allege that they were discharged in retaliation for their political support of the Dishman-Christian administration. That, of course, is at the very core of their First Amendment rights. See, e.g., McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir. 1989) (citing Elrod v. Burns, 427 U.S. 347 (1976)) (First Amendment is violated when public employee is terminated because of his or her political affiliations).

As for the alleged deprivation, the complaint alleges that Carus, not Yingling, discharged Plaintiffs. In their brief, Plaintiffs nevertheless argue that Yingling "deprived Plaintiffs of their employment" by dint of the other actions alleged in the complaint, including the premature removal of signage with Rick Dishman's name; the unauthorized closing of the office on December 31; the requisition of Heckel's desk; the installation of new locks on the township building; and the demand that Plaintiffs turn in their keys by year's end. None of this adds up to constructive discharge, and Plaintiffs' own allegations would scotch that theory anyhow: despite Yingling's allegedly retaliatory actions against them, they continued to report to work, and right up to moment when Carus fired them, they remained confident and forthright that "they had not been properly terminated by any person with lawful authority to do so prior to that time." It is unclear what else "deprivation of employment" might mean in this context, but Plaintiffs need not plead a deprivation of that magnitude in the first place; any action that would deter "a person of ordinary firmness" from exercising his or her First Amendment rights will ...

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