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McCarragher v. Ditton

United States District Court, N.D. Illinois, Eastern Division

May 19, 2017

CHRISTOPHER DITTON, individually and in his official capacity as AVON TOWNSHIP ASSESSOR, Defendant.



         Plaintiff Maureen McCarragher, a former employee of the Avon Township Assessor's Office[1] brings this action against Christopher Ditton, the elected Avon Township Assessor. McCarragher alleges that, in violation of her First Amendment rights, Ditton punished her for not supporting him politically when he retained his unqualified patronage hires while the office's funding ran out, and then, after terminating everyone for lack of funds, failed to hire her for a new position when he later re-hired his political allies. McCarragher also alleges that the failure to rehire her was retaliation for the filing of this lawsuit (the rehiring occurred between the original and amended complaints). Before the Court is Ditton's motion to dismiss the amended complaint for failure to state a claim on which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the motion is denied.


         The factual allegations in the plaintiff's amended complaint, see ECF No. 30, are assumed to be true for purposes of this motion to dismiss. See Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 982 (7th Cir. 2013).

         In January 2010, McCarragher, a Certified Illinois Assessor Officer (“CIAO”) was hired as a deputy assessor by Christopher Ditton's predecessor as Township Assessor, Bryce Carus. Carus was elected in 2009 as part of the “Avon Forward” slate of candidates, which also included defendant Ditton, who ran for Township Trustee, Tom Brust, the candidate for Highway Commissioner, and Sam Yingling, who ran for Township Supervisor. These candidates and political allies all won, except for Tom Brust, but he quickly obtained the Highway Commissioner post anyway, because the Commissioner resigned and Yingling appointed Brust to fill the vacancy.

         Carus took office as Assessor in January 2010, and hired McCarragher, an experienced assessor. Possibly at Yingling's insistence, he also hired Cynthia Brust, Tom's wife, although she had no qualifications and was not a CIAO. Carus fired Cynthia Brust within two months. In June 2011, Carus resigned as Assessor. In December 2011, Ditton was appointed to serve the remainder of Carus's term, although he had no experience and had to start from scratch taking classes to become an assessor. At that time, only McCarragher and one other employee of the Assessor's Office (Robin Vidone-O'Donnell) were qualified as Deputy Assessors under state law. In April 2013, Ditton was elected to continue as the Avon Township Assessor. McCarragher did not support Ditton in his campaign, nor had she supported his earlier political campaigns.

         As a Deputy Assessor, McCarragher did not supervise any employees and could not make any hiring or firing decisions. She did not make policy, and believed that she lacked authority to do so. Instead, she was “duty-bound to follow state statutes in the performance of [her] job function, ” to the extent that the Illinois Code addresses the position of deputy township assessors at all. No statute or ordinance defines a township deputy assessor's role as anything but “evaluat[ing] and assess[ing] property, ” and the township deputy assessor is not a department head and does not manage the budget, supervise employees, or make policy. McCarragher was not authorized to fill in for Ditton in his absence. On the other hand, as the Township Assessor, Ditton had the authority to hire and fire employees, oversee the budget, and set policy.

         For the budget year 2014, the Township Board approved enough funding for the Assessor's office for its existing two deputies (including McCarragher), although Ditton had requested funding for four. Despite the lack of budget authorization, he nevertheless hired two additional employees-Cynthia Brust and Richard Watts, another of his political allies- although they were not certified assessors. (Indeed, Ditton unsuccessfully sought an injunction in federal court to get sufficient funds to make his patronage hires.) The Avon Township Board warned Ditton that budgetary constraints would not allow him to retain all of his employees in the 2014 budget year. Nevertheless, rather than stretch the budget by laying off his two most recent hires, who lacked experience or qualifications as deputy assessors, Ditton retained Brust and Watts, thereby depleting the budget of funds sufficient to maintain McCarragher's position for the balance of the year. To make matters worse, McCarragher alleges, Ditton paid Brust for full-time work although she had another job during the same working hours. The money ran out six months into the fiscal year, and all of the Assessor's Office employees, including McCarragher, were laid off. McCarragher's termination was effective on September 25, 2014- two weeks after Ditton's preliminary injunction regarding funding was denied. If Ditton had heeded the warnings that he could not afford four deputies, there would have been funding for McCarragher's job for the entire fiscal year.

         On October 30, 2014, McCarragher filed her first federal complaint pursuant to 42 U.S.C. § 1983, asserting that her termination was the result of her failure to support Ditton politically, in violation of her First Amendment rights. She also alleged a violation of her right to due process under the Fourteenth Amendment. Ditton moved to dismiss the complaint, but that fully briefed motion became moot when McCarragher was granted leave to amend her complaint.

         The First Amended Complaint retains the claim that Ditton's patronage appointments caused the funding crisis that necessitated McCarragher's termination. McCarragher now adds a claim that filing this lawsuit prompted further retaliation, in that Ditton, once funding returned in February 2015, recalled his patronage hires but not McCarragher, and gave an open position of part-time assessor to his campaign manager's sister instead of offering McCarragher that position. McCarragher no longer pursues a due-process claim. She seeks compensatory and punitive damages and a permanent injunction restoring her job, seniority, salary, and benefits and prohibiting patronage-based personnel decisions in the Assessor's office in the future. Once again, Ditton moves to dismiss the amended complaint in full.


         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this standard when its factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56. The plaintiff “must give enough details about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). In resolving the motion, the Court takes all facts alleged by the plaintiff as true and draws all reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations that merely recite the elements of a claim are not entitled to a presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).

         I. First Amendment Claims

         In Count I, McCarragher alleges that political favoritism motivated both the decision to lay her off (because the patronage hires should never have been made and those employees should have been the first to go) and not to give her a job when positions became available again. In Count II, she alleges that Ditton's failure to hire her for an open position when he recalled his patronage hires was retaliation for exercising her First Amendment right to file this lawsuit on a matter of public concern.

         a. Patronage Claim: Unlawful termination and failure to rehire

         Ditton contends that McCarragher's First Amendment patronage claims fail as a matter of law because party affiliation and loyalty are appropriate requirements for the job of Deputy Assessor in Avon Township. See Mem. 10- 13, ECF No. 32. McCarragher argues that the patronage hiring and recall decisions[2] in this case were unlawful violations of her free association rights under the First ...

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