United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, UNITED STATES DISTRICT JUDGE.
Michno worked for the Cook County Sheriff's Office as a
correctional officer. In the present lawsuit, he alleges that
the Sheriff and other Sheriff's Office officials
initiated disciplinary proceedings against him in 2011 and
made a decision to terminate his employment in 2015 in
retaliation for his support for a competing candidate for
Sheriff in 2006 and his filing of a lawsuit against the
Sheriff in 2007. Michno lost the 2007 lawsuit. The present
case was largely kept on pause while the 2007 lawsuit was
asserts claims under 42 U.S.C. § 1983 and the Illinois
Whistleblower Act (IWA), 704 ILCS 174/15. The defendants have
moved to dismiss Michno's amended complaint under Federal
Rule of Civil Procedure 12(b)(6). They argue that he has not
sufficiently alleged a basis to impose liability on two
defendants, Sheriff Thomas Dart and Undersheriff Zelda
Whittier. The defendants also argue that all defendants are
entitled to the benefit of qualified immunity because in
determining whether to discipline him, they were performing
discretionary functions, and they had no basis to believe
that their conduct violated Michno's constitutional
rights. With regard to Michno's IWA claim, the defendants
argue that there is no basis for individual (as opposed to
entity) liability under the IWA. They initially argued that
Michno's IWA's claim is time-barred but withdrew that
argument after Michno pointed out that Judge James Zagel, to
whom the case was previously assigned, had already overruled
that contention in ruling on defendants' motion to
dismiss Michno's original complaint.
Court overrules defendants' contention that the complaint
does not allege a sufficient basis for imposition of
individual liability under section 1983 against defendants
Dart and Whittier. Judge Zagel rejected this exact argument
in denying defendants' motion to dismiss Michno's
original complaint. Defendants offer no basis for this Court
to disturb that ruling.
qualified immunity argument borders on the frivolous, at
least when made on a motion to dismiss for failure to state a
claim. Defendants seem to contend that employee discipline in
the law enforcement context is inherently discretionary and
that for this reason they are entitled to qualified immunity.
That is a non sequitur. Performance of a
discretionary function is a necessary predicate for
application of the defense of qualified immunity, Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982), but that does
not mean that it is a sufficient basis by itself to establish
the defense. So the proposition that defendants were dealing
with matters involving discretion does not, without more,
entitle them to qualified immunity.
question a court must answer when a qualified immunity
defense is raised is whether the defendant's conduct
violated clearly established statutory or constitutional
rights of which a reasonable person would have known.
Id. "Courts use a two-part test to determine
whether officers are entitled to qualified immunity: (1)
whether the facts, viewed in a light most favorable to the
injured party, demonstrate that the conduct of the officers
violated a constitutional right, and (2) whether that right
was clearly established at the time the conduct
occurred." Doe v. Vill. of Arlington Heights,
782 F.3d 911, 915 (7th Cir. 2015) (internal quotation marks
omitted). A court may consider either part of the test first.
the second part of the qualified immunity test, the law has
been clear for decades that a non-policymaking government
employee (like a correctional officer) may not be subjected
to adverse employment action because of his political
affiliation. See, e.g. Rutan v. Republican Party of
Illinois, 497 U.S. 62 (1990); Elrod v. Burns,
427 U.S. 347 (1976). The same is true of retaliation against
a government employee for filing a lawsuit, at least if the
suit involved a matter of public concern (defendants do not
argue that the 2007 lawsuit does not meet this standard).
See, e.g., Zurzi v. Cty. of Putnam, 30 F.3d 885, 896
(7th Cir. 1994).
do not argue otherwise. On the specific point they raise, it
is true that law enforcement entities "are given more
latitude in their decisions regarding discipline and
personnel regulations than an ordinary government employer,
" Volkman v. Ryker, 736 F.3d 1084, 1092 (7th
Cir. 2013), but that does not help defendants in the present
context. Because they have moved to dismiss for failure to
state a claim, the Court is required to take Michno's
factual allegations as true. Among the allegations the Court
must accept as true are Michno's squarely-made
allegations that defendants took adverse employment action
against him because of his filing of and participation in the
earlier federal lawsuit and his exposure of wrongful conduct
by the Sheriff's Office and because of his political
affiliation. See Am. Compl. ¶¶ 25, 28, 30,
47, 49, 51, 52, 53, 54, 63. Nothing in Volkman or
any other case defendants cite suggests that a reasonable
person in defendants' position could think that such
actions do not run afoul of clearly established federal law.
Rather, in Volkman, the Court was addressing a
summary judgment motion in which the Court was evaluating the
justification for the contested disciplinary action. At the
present stage of this case, no evidence of the
defendants' claimed justification for disciplining Michno
is before the Court.
these reasons, defendants are not entitled to dismissal of
Michno's section 1983 claims.
Court dismisses Michno's IWA claim against all of the
defendants except for Sheriff Dart in his official capacity
for the reasons stated in Bello v. Village of
Skokie, No.14 C 1718, 2014 WL 4344391, at *8-9 (N.D.
Ill. Sept. 2, 2014) (Kennelly, J.). In a nutshell, the IWA
imposes liability only on a person's "employer,
" and as individuals these defendants were not
reasons stated above, the Court dismisses Count 2 of
plaintiff's amended complaint (his Illinois Whistleblower
Act claim) against all defendants other than Sheriff Dart in
his official capacity but ...