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Bisluk v. Hamer

United States District Court, C.D. Illinois, Springfield Division

October 9, 2014



RICHARD MILLS, District Judge.

Pending before the Court is the Defendants' Motion for Summary Judgment.


Plaintiff Theresa Bisluk was employed by the Illinois Liquor Control Commission ("the Commission") as a Liquor Control Commission Special Agent. After she was unable to obtain a geographical transfer, the Plaintiff filed a Complaint asserting her civil rights were violated under 42 U.S.C. ยง 1983. The Plaintiff alleges a First Amendment claim against each of the Defendants, contending that she was unable to obtain the transfer due to her political affiliation. Additionally, the Plaintiff alleges her rights under the Equal Protection Clause of the Fourteenth Amendment were violated by Defendant Patrick Welch when similarly situated male employees received more favorable treatment.

The Plaintiff's Complaint alleges that, at all relevant times, Defendant Brian Hamer was the Director of the Illinois Department of Revenue. Defendant Lainie Krozel was the Chief of Staff of the Department and had administrative oversight over the Commission. Defendant Patrick Welch was an Assistant Director of the Department and the head of the Liquor Control Enforcement Division of the Commission. Defendant Jessica Nunes was the Director of Human Resources of the Department. Defendant Rod Blagojevich was the Governor of the State of Illinois. Defendant Joseph Cini served as an Assistant to the Governor of the State of Illinois. Defendant Jennifer Ricker was an official of either the Department or the Governor's Office. Defendant Sam Flood had involvement in filling positions of employment at various governmental agencies under the jurisdiction of the Governor of Illinois.

The Defendants assert the Plaintiff's claims fail because she is unable to establish a prima facie case of discrimination based on political affiliation or gender. They further contend that Plaintiff's claims are barred by collateral estoppel, the Eleventh Amendment, qualified immunity and/or the statute of limitations.


A. Background and Plaintiff's work for the Commission

Plaintiff Theresa Bisluk, at all relevant times, was employed by the Commission as Liquor Control Special Agent I in the Liquor Control Enforcement Division of the Illinois Department of Revenue ("the Department"). The Commission is a unit of government of the State of Illinois which was created by the Illinois Liquor Control Act of 1934, 235 ILCS 5/1-1 et al . The Commission enforces the laws of the State of Illinois regulating the manufacture, distribution and sale of liquor and alcohol products.

Employees designated as a Liquor Control Special Agent I ("Agent I") are represented by the Illinois Federation of Public Employees Bargaining Unit. An employee designated as a Liquor Control Special Agent II ("Agent II") is represented by the American Federation of State, County and Municipal Workers Union.

The position description of an Agent II states that Agent IIs, under direction, serve as Lead Workers over lower level Agents in the conduct of investigations and serve as Lead Workers over lower level Agents engaged in conducting field investigations of businesses and firms engaged in the manufacture, distribution, and retail sales of alcoholic beverages to detect violations of the Illinois Liquor Control Act. The only "subordinates" that Agent IIs supervise are employees in the position of Liquor Control Special Agent I. The Plaintiff states that, regardless of the written description, the duties of an Agent II are the same as those of an Agent I. However, Agent Is and Agent IIs belonged to different unions. The Department reserves the right to fill positions they deem necessary to make the Agency functional based on operational needs. Therefore, the Plaintiff contends there are no prohibitions against filling a position held by an Agent II with an Agent I. The Defendants dispute the assertion only to the extent that Plaintiff is suggesting that Agent Is, by virtue of a geographical transfer, were permitted to convert to an Agent II.

On or about March 8, 2007, the Department signed off on the position description of the Agent II position. On or about March 15, 2007, Bonds Robinson signed a Vacancy Request Form requesting a Liquor Control Special Agent II be approved to serve as a "lead worker over lower level Agents engaged in the conduct of investigations concerned with the enforcement of the provisions of the Illinois Liquor Control Act."

For over 20 years, the Plaintiff had planned to move to Southern Illinois to operate her own vineyard. On March 27, 2007, the Plaintiff sent a handwritten letter to her supervisor, Eric Wisette, requesting a geographical transfer to the position being vacated by Agent II Mark Fournie. On the same day, Wisette forwarded the Plaintiff's request to Defendant Patrick Welch. On March 28, 2007, Welch sent an email to Defendant Jessica Nunes, instructing her to respond to the Plaintiff. Nunes was a senior public service administrator and, according to the Plaintiff, was also the highest ranking person in the human resources office. The same day, in response to the March 15, 2007 Vacancy Request, Welch sent a Critical Vacancy Request to the Governor's Office for approval of the Agent II position.

On March 28, 2007, Nunes informed Welch that Plaintiff had no contractual rights to the Agent II position and that the position would need to be filled pursuant to the bargaining unit contract. Subsequently, Nunes emailed the Plaintiff instructing that she needed to submit an official Request for Transfer (RPS-65) to the Personnel Office and that Plaintiff needed to submit a CMS-100 form to formally apply for the Agent II position after the job was posted (as the Agent II position was in an entirely different bargaining unit). Although she had no independent recollection, the Plaintiff testified she had no reason to believe that Plaintiff did not then forward Nunes' instructions to Randy Mendenhall, the Plaintiff's union supervisor, on March 28, 2007, at 4:08 p.m., as reflected in Exhibit 20 in support of the Defendants' Motion.

The Plaintiff never submitted a CMS-100 for the Agent II position. She was informed that she had to wait for the position to be posted before applying.

Following her conversation with Nunes, the Plaintiff made a formal transfer request. At some point after Fournie retired, the Plaintiff completed and submitted to the personnel division of the Department a Request to Transfer (RPS-65) without specifying a desired work location, desired position, and without signing or dating the form. The Plaintiff did not know where the position would be posted. At the time she filled out the form, the Plaintiff desired to work in any county in Southern Illinois. The Plaintiff states that on March 27, 2007, by letter, she informed her supervisors that she wished to transfer to Fournie's position.

Around the time she submitted the transfer request form, the Plaintiff asked Nunes if she or someone in her office could inform the Plaintiff when a posting was made relating to the Fournie position. Nunes stated that Plaintiff should look at the CMS website because vacancies would be posted on that website.

In March of 2007 when the Plaintiff submitted a bid form to transfer to the southern Illinois position, it was returned to her by Nunes. The Plaintiff was told she had to wait until the position was posted to submit an application. After her conversation with Nunes, the Plaintiff checked the CMS website for vacancy announcements on a frequent basis. The Plaintiff was aware that postings were to be made for ten days.

In the beginning, the Plaintiff assumed she would receive the Agent II position without having to fill out any paperwork. The opening for the Agent II position was posted on October 18, 2007, and the last date to apply was October 31, 2007. The Plaintiff alleges it was never posted on the Illinois Department of Central Management Services website. The Plaintiff states she continued checking the website until she was informed in 2008 that an individual had been hired to fill Fournie's position.

The Plaintiff expected that her request to transfer would be approved if she asked. However, she never received anything from the Department stating she would be permitted to transfer. The Plaintiff assumed the Agent II position at issue was going to be posted as an Agent I. The Plaintiff disputes the assertion to the extent that she claims Eric Wisette, her supervisor, was informed she would be allowed to transfer.

B. Defendants and their roles in hiring

The Plaintiff is suing former Governor Rod Blagojevich because "the buck stopped there" and "he was the one who made the changes." Additionally, the Plaintiff alleges Blagojevich, a Democrat, had in place a scheme favoring individuals for state employment who were sponsored by his political supporters. The Plaintiff has no evidence that Blagojevich was personally involved in denying the Plaintiff a geographical transfer.

From March of 2007 to March of 2009, Defendant Jennifer Ricker worked in the Governor's Office. Previously, she was the Chief of Staff at the Department where she oversaw personnel matters. Defendant Lainie Krozel, the subsequent Chief of Staff, was Ricker's contact at the Department. Defendant and then-Governor Rod Blagojevich was a friend of the family of Krozel's husband. Krozel sometimes saw Blagojevich at social functions.

Defendant Joseph Cini was on the Governor's staff as Director or Deputy Chief of Inter-Governmental Affairs. While in the Governor's Office, Cini had responsibility with respect to hiring and recruiting employees. In the Office of Inter-Governmental Affairs, Cini worked with Defendant Sam Flood in recruiting and hiring employees.

In her capacity as the Department's Chief of Staff, Lainie Krozel oversaw the other managers and supervisors, communicated with the Governor's Deputy Chief of Staff and crafted policy. Krozel assumed responsibilities for the Commission in 2007 when she became Acting Chief of Staff. Krozel handled staffing functions for the Department and Commission. Senior managers notified Krozel when they had vacant positions. Krozel assisted with hiring staff to satisfy the needs of an area. Krozel was involved in filling the Fournie position. She talked with Pat ...

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