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John Gnutek and Thomas Hobgood v. Illinois Gaming Board

March 30, 2011

JOHN GNUTEK AND THOMAS HOBGOOD, PLAINTIFF,
v.
ILLINOIS GAMING BOARD, ILLINOIS DEPARTMENT OF REVENUE, MARK OSTROSKI, BRIAN HAMER, LAINIE KROZEL, LUKE HARTIGAN AND CARLOS AULET, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiffs John Gnutek ("Gnutek") and Thomas Hobgood ("Hobgood") are former employees of the Illinois Department of Revenue ("IDOR") who were assigned to work at the Illinois Gaming Board ("IGB"). In June 2006, Gnutek filed a lawsuit alleging that the IGB retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"), for a previous sex discrimination charge. Hobgood helped Gnutek draft his complaint to outline what Plaintiffs describe as a "pattern of corruption" within the IGB. (Am. Compl. ¶ 29.) Plaintiffs allege that soon after Gnutek filed his amended complaint, several officials from the IDOR and IGB began a "campaign of retaliation" against both Gnutek and Hobgood. (Id. ¶ 33.) Specifically, Plaintiffs were subject to investigations by IDOR's Internal Affairs Division, were suspended, and ultimately, were terminated.*fn1 Plaintiffs subsequently brought the instant suit against IDOR; IGB; IDOR Director Brian Hamer; IGB Administrator Mark Ostrowski; IDOR Chief of Staff, Lainie Krozel; and two former IDOR Internal Affairs investigators, Luke Hartigan and Carlos Aulet (collectively, "Defendants"). Plaintiffs' four-count Amended Complaint alleges that the IDOR, IGB, and the individual officers retaliated against them in violation of Title VII (Counts I & IV) and the First Amendment (Counts II & III). Defendants move for summary judgment on all counts. For the reasons stated below, Defendants' motion for summary judgment is granted.

BACKGROUND

I. The Parties

The Illinois Gaming Board is a five-member board that regulates all gambling activity at nine casinos in Illinois under the Illinois Riverboat Gambling Act, 230 ILCS 10/1, et seq. (Defs.' 56.1 ¶ 2.) Until July 2009, the IGB operated within the Illinois Department of Revenue; it is now a separate and independent body of the State of Illinois. (Id. ¶ 5.) In January 1999, Gnutek began working in the Enforcement Division of the IGB as a Revenue Senior Special Agent at the Empress Casino in Joliet, Illinois. (Id. ¶ 9.) Hobgood has been employed in the Investigations Division of the IGB since December 16, 2002, also as a Revenue Senior Special Agent. (Id. ¶ 8.) The Enforcement Division of the IGB monitors the day-to-day activity at the nine riverboat casino dock sites; the Investigations Division investigates any illegal activity that occurs on riverboats and performs background investigations on entities applying for gambling licenses. (Id. ¶ 6.)

Defendant Brian Hamer has been the Director of the IDOR since February 2003. (Ostrowski Aff. ¶ 1.) Defendant Lainie Krozel has served as Chief of Staff for the IDOR since March 2007. (Krozel Aff. ¶ 4.) Defendant Mark Ostrowski has served as Administrator of IGB since November 2005. (Ostrowski Aff. ¶ 1.) Defendant Luke Hartigan was the Chief Investigator in the Internal Affairs Division of IDOR from 2004 to 2007. (Hartigan Aff. ¶ 1.) Defendant Carlos Aulet worked as an investigator in Internal Affairs from August 2000 to February 2009. (Aulet Aff. ¶ 1.)

II. Plaintiff Gnutek's 2006 Lawsuit

On June 30, 2006, Gnutek brought a Title VII retaliation claim against IGB. (Am. Compl. ¶ 19.) See Gnutek v. Illinois Gaming Board, No. 06 C 3561 (N.D. Ill. filed June 30, 2006) (Castillo, J.). He alleged that the IGB retaliated against him for filing a previous complaint of sex discrimination with the Illinois Department of Labor in June 2004. (Gnutek Dep. 39-41.) According to Gnutek, the IGB retaliated by failing to promote him to Enforcement Operations Supervisor in 2005, instead selecting Mark Stevens, an Illinois State Police Master Sergeant, for the position. (Defs.' 56.1 ¶ 15.) At some point (Hobgood does not recall exactly when), Hobgood assisted Gnutek in drafting his 2006 complaint by advising him on more persuasive ways to organize his facts and exhibits. (Hobgood Dep. 33-34.) Hobgood also provided Gnutek with certain documents to "further his claims" against the IGB. (Hobgood Dep. 34; Am. Compl. ¶ 20.) Hobgood recalls specifically giving Gnutek a rejection letter that Hobgood received from the IDOR stating that Hobgood, too, was passed over for promotion to Enforcement Operations Supervisor. (Hobgood Dep. 34.) Hobgood claims he hoped Gnutek could use the rejection letter in his lawsuit "to show a disparate treatment" among those applicants who applied for the supervisor position. (Id. 34-35.) (Plaintiffs do not explain how the fact that Hobgood, like Gnutek, was passed over for the promotion establishes a pattern of disparate treatment.) Hobgood claims he did not discuss his assistance to Gnutek with any other IGB employees. (Id. 66.)

Sometime between June 2006 and November 2006, Hobgood claims that he and Gnutek observed increasingly politicized hiring decisions at the IGB in conjunction with inappropriate campaign contributions to then-Illinois Governor Rod Blagojevich.*fn2 (Id. 54.) Hobgood claims that as he and Gnutek began to "notice [a] pattern of [illegal] behavior" at the IGB, they discussed how best to proceed and concluded that certain actions by IGB officials met the definition of racketeering. (Id. 54-56.) During this period of time, Hobgood also spoke with Jeannette Tamayo-then interim administrator at the IGB-to express his concerns about IGB's hiring practices, and informed her that Gnutek had retained the services of an attorney (though he did not tell her why).*fn3 (Id. 58, 60.)

At some point later, Tamayo gave Hobgood a large, sealed envelope and asked him to deliver it to Gnutek. (Id. 62.) Though curious about the contents of the package, Hobgood claims he did not open it and delivered it to Gnutek sealed. Hobgood recalled later learning of the contents of Tamayo's package, though he cannot remember how or when. (Hobgood Dep. 64-65.) According to Gnutek, the package of documents from Tamayo contained copies of "numerous e-mails that related to hiring irregularities at the [IDOR and IGB]" (Gnutek Dep. 108, 120-21), as well as an internal IGB document entitled, "Officer Action Request" ("OAR") regarding Mark Stevens. (Id. 107.) Plaintiffs offer no specifics concerning the "hiring irregularities" revealed in the e-mail messages. The exact contents and purpose of Stevens' OAR are also not described in the record, but it is undisputed that the OAR contained personal information about Mr. Stevens, including his Social Security number. (Ostrowski Aff. ¶ 16.) Gnutek also recalls receiving a separate memorandum from Hobgood describing an October 2005 conversation between Hobgood and Luis Tigera-former Deputy Administrator of the Enforcement Division of the IGB-regarding hiring practices at IGB. (Id. 117, 119.) Hobgood admits that he obtained a copy of the Stevens' OAR at some point, but claims he shredded the document after it was anonymously slipped under his office door, and denies giving Gnutek a copy.*fn4 (Hobgood Dep. 69-70.)

On November 3, 2006, Gnutek filed a motion to amend his complaint against the IGB to include a RICO claim against Alonzo Monk and William Cellini.*fn5 (Defs.' 56.1. ¶ 23; Gnutek Dep.43, 46-48.) Gnutek alleged that Cellini influenced hiring practices at the IGB and Monk wrongfully attempted to replace IGB docksite supervisors with Illinois State Police officers for political reasons.*fn6 (Gnutek Dep. 46-48.) Again, Hobgood was involved in drafting the amendment, but he claims that his involvement was limited: he says he only discussed his "personal opinions" and that he was not acting in a "professional capacity" in helping Gnutek prepare the amended complaint. (Am. Compl. ¶ 27.) Hobgood further claims that he did not disclose to any other IDOR employees that he was assisting Gnutek, but he alleges that by late October or early November, officers at the IGB knew of Hobgood's participation in the complaint, though he does not identify any by name or explain how they learned of his participation. (Hobgood Dep. 80-81.) On November 17, 2006, Judge Castillo denied Gnutek leave to file an amended complaint.*fn7

III. Investigation and Termination of Hobgood

Plaintiffs claim that once Defendants learned that Hobgood assisted Gnutek with his lawsuit, a "campaign of retaliation" was directed against them. (Am. Compl. ¶ 33.) Hobgood presents no evidence that any supervisors were aware of his assistance to Gnutek before Gnutek filed his amended complaint on November 16, 2006. He nevertheless contends that the first incident of retaliation occurred on November 12, 2006, when he was wrongfully accused of "insubordination" and "abusing overtime." (Id. ¶ 33(A).) Defendants present a different story. On November 6, 2006, Hobgood requested that his supervisor, Joseph Stratman, sign a form authorizing Hobgood to take time off from work. (Defs.' 56.1 ¶ 26.) Stratman advised Hobgood that he would be permitted to take the day off only if Hobgood assured Stratman that he would first complete a previously due report. Stratman claims that he did not receive any assurance from Hobgood that the project would be completed on time, so he did not sign the leave form. (Stratman Aff. ¶ 6.) Stratman further claims, and Plaintiffs do not dispute, that on November 8, 2006, Hobgood removed the form from Stratman's desk without his approval. (Id. ¶ 7.) Two days later, on November 10, Hobgood worked on a state holiday and requested overtime compensation. According to Defendants, the overtime hours were not authorized, but Stratman nevertheless granted the request on November 12, after "counsel[ing]" Hobgood on the IGB's policies regarding overtime hours.*fn8 (Id. ¶¶ 9-10.)

On November 13, 2006, Hobgood again met with Stratman. During their conversation, Stratman noticed "a small red light emitting through [Hobgood's] shirt pocket." (Id. ¶ 11.) According to Stratman, he asked Hobgood to reveal the contents of his pocket and Hogbood removed an iPod connected to another small device. (Id. ¶ 11.) Hobgood denies that any device was attached his iPod (Pls.' Resp. to Defs.' 56.1 ¶ 34), but he does not dispute that when he handed the iPod to Stratman, Stratman may have seen the words "Voice Memo" on the screen.*fn9 Believing that Hobgood had attempted to record their conversation, Stratman went directly to the office of his direct supervisor, Tommy Wofford, and Hobgood followed. (Stratman Aff. ¶ 13.) When Wofford confronted Hobgood about the device, Hobgood insisted that he had not recorded his conversation with Stratman. (Id. ¶ 14.) Following this incident, Stratman met with Wofford and Defendant Ostrowski to discuss whether any disciplinary action should result; Stratman, Wofford, and Ostrowski all eventually agreed that Hobgood should be suspended without pay.*fn10 (Stratman Aff.¶¶ 17-19.)

On November 20, 2006, Stratman issued a notice of pre-disciplinary meeting to Hobgood describing the charges against him, which included removing the leave request form from Stratman's desk and Hobgood's alleged attempt to record their conversation. (Defs.' 56.1 ¶ 39.) Following that meeting on November 22, Hobgood submitted a response to these charges in which he presented a detailed rebuttal concerning the events surrounding the leave request form, though he did not deny having taken the leave form from Stratman's desk. Hobgood flatly denied any allegation that he recorded the conversation with Stratman, stating that the charge was simply "factually incorrect." (Pls.' Resp. to Defs.' 56.1 ¶ 33, 40.) Hobgood claims he did not consider the "iPod incident" a "big deal" because after the incident, the iPod was returned to him and he did not receive any news of discipline until he was later issued the notice of pre-disciplinary meeting. (Hobgood Dep. 127-29; Pls.' Resp. to Defs.' 56.1 ¶ 40.)

On December 1, 2006, Defendant Ostrowski met with Colette Walsh, the Assistant Attorney General representing the IGB in Gnutek's Title VII lawsuit. (Ostrowski Dep. 20.) During their meeting, Walsh showed Ostrowski various discovery documents Gnutek had produced, including:

(1) the Officer Action Request form for Mark Stevens (the Sergeant who had been promoted to Enforcement Operations Supervisor); and (2) a four-page transcript of a conversation between Hobgood and Luis Tigera from October 2005. (Ostrowski Aff. ¶ 21-22.) Walsh also met with Tigera at this time to show him the transcript, and according to Tigera, the transcript was a "verbatim" account of their conversation.*fn11 (Tigera Dep. 11-13.) Hobgood insists that the four-page document was not a transcript; he claims instead that he simply took "copious notes" after meeting with Tigera and then prepared the memorandum to reflect their conversation. (Hobgood Dep. 144; Pls.' Resp. to Defs.' 56.1 ¶ 46.) Tigera claims that although he recalls Hobgood taking notes during the conversation, Tigera did not believe that he was being recorded. (Tigera Dep. 15.) According to Tigera, he and Hobgood discussed a variety of topics, including why IGB's operational officer, Mike Fullman, left the department. (Id. 15-18.) Fullman had reported directly to Tigera at the time, and in his conversation with Hobgood, Tigera insinuated that Fullman lost his job because of his political affiliation. (Id. 18-19.)

On December 4, 2006, Defendant Ostrowski contacted Defendant Hartigan, then Chief Investigator of the IDOR Internal Affairs Division, the IDOR unit responsible for investigating reports of employee misconduct and possible violations of IDOR policies. (Ostrowski Aff. ¶ 23.) Ostrowski informed Hartigan that Internal Affairs might need to investigate Hobgood for his alleged recording of the conversation with Tigera. (Id. ¶ 23.) On December 8, 2006, Tigera contacted the Illinois State Police Division of Internal Investigations ("DII"), to file a formal complaint against Hobgood for "improperly or illegally" recording their conversation.*fn12 (Tigera Dep. 62-64.) Soon thereafter, Defendant Hartigan received notification from Patrick Keen, DII's Assistant Deputy Director, that the unit had accepted a criminal referral from Tigera and that IDOR's Internal Affairs Division should temporarily defer its investigation pending the completion of the DII's criminal investigation. (Hartigan Aff. ¶ 21; Ostrowski Aff. ¶ 24.) On December 29, 2006, IDOR placed Hobgood on administrative leave. (Defs.' 56.1 ¶ 50.) Hobgood later received a 15-day suspension from Stratman on January 11, 2007, based on the earlier allegation that Hobgood attempted to record his conversation with Stratman. (Stratman Aff. ¶ 23.)

DII completed its investigation on February 2, 2007, and referred the matter to the Felony Review Unit of the State's Attorney's Office; but no criminal charges were brought against Hobgood. (Ostrowski Aff. ¶ 31.) On March 24, 2007, Hartigan received notification that DII had completed its investigation of Hobgood, and after Hartigan received a copy of DII's report, he formally began the IDOR's investigation of Hobgood in late April 2007. (Defs.' 56.1 ¶ 61; Hartigan Aff. ¶¶ 22-23.) Hartigan first reviewed the interviews of both Hobgood and Gnutek from the DII's investigation. In one DII interview, Gnutek again revealed that Hobgood had given him both Mark Stevens' Official Action Request form and the record of the conversation with Tigera. (Hartigan Aff. ¶ 26.) Soon thereafter, Hartigan met with Hobgood's supervisor, Joseph Stratman, who reported that a "significant amount" of confidential work-related information was found in Hobgood's office after he was placed on administrative leave in December 2006. (Stratman Aff. ¶ 31.) Specifically, Stratman had found several confidential documents, including: IDOR's original background investigation file on then-Director of the Illinois State Police, Larry Trent; copies of federal indictments for Stuart Levine and Antoin Rezko; applications for gambling licenses; and numerous notebooks prepared by Hobgood, which detailed background information on various ...


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