United States District Court, N.D. Illinois, Eastern Division
WILLIAM P. DAVIS, Plaintiff,
VILLAGE OF HAZEL CREST, VERNARD L. ALSBERRY, JR., MARY GRANT, KEVIN MOORE, SUSAN PATE, BENJAMIN RAMSEY, and SANDRA G. SLAYTON, Defendants.
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge.
William Davis (“Plaintiff”) brings suit against
Defendants the Village of Hazel Crest
(“Village”), Village President Vernard L.
Alsberry, Jr. (“Alsberry”), and Village Trustees
Mary Grant, Kevin Moore, Susan Pate, Benjamin Ramsey, and
Sandra Slayton (collectively, the “Trustees”) for
alleged violations of federal and Illinois law arising out of
the elimination of Plaintiff's position as Director of
Communications and Public Outreach for the Village. Currently
before the Court is Defendants' motion to dismiss the
complaint for failure to state a claim . For the reasons
explained below, Defendants' motion  is granted in
part and denied in part. The Court grants the motion to
dismiss Counts I (retaliation/wrongful discharge), II (breach
of contract/wrongful termination), and IV (procedural Due
Process) as to all Defendants. The Court grants the motion to
dismiss Count III (violation of the First Amendment) as to
the Individual Defendants but denies the motion to dismiss
Count III as to the Village. This case is set for status
hearing on February 27, 2018 at 9:30 a.m.
Village is operated under a “Manager Form of
Government” pursuant to Article 5 of the Illinois
Municipal Code, Section 2-159 (the “Code”).
[14-2] at 2. Under the Code, a Village President has no
authority to appoint department heads or to hire, fire or
direct Village employees. Instead, these powers are bestowed
on the appointed (not elected) Village Manager. A Village
President also does not have unilateral authority to appoint
or terminate the Village Manager. That authority is held
jointly by the Village President and Village Board of
April 2012, the then-Village Manager, James Whigham, hired
Plaintiff as the Director of Communications and Public
Outreach. Plaintiff accepted employment “in reliance on
the Code which, as a matter of public policy, prohibited
political hiring and firing by the Village President and/or
the Village Board of Trustees.” [14-2] at 3. Shortly
after Plaintiff accepted employment at the Village, Alsberry
became Village President.
alleges that during the course of his employment, Alsberry
“repeatedly violated, or attempted to violate, the Code
by forcing hires or orchestrating the termination of certain
Village employees for political reasons and attempting to
illegally direct and/or influence Village employees'
activities.” Id. Plaintiff openly opposed and
interfered with Alsberry's efforts by preventing him from
forcing his preferential patronage hires at the Village.
Alsberry did not consider Plaintiff to be a part of his
political team and plotted to remove Plaintiff from his
April 30, 2015, Defendants, without warning or explanation,
cancelled Plaintiff's medical benefits. The next day, May
1, 2015, Alsberry convened a special board meeting to vote to
terminate Plaintiff's employment. Plaintiff alleges that
this violated Section 2-159 of the Village Code which states:
Neither the president nor the board of trustees shall direct
or request the appointment of any person to, or his removal
from, office by the manager or any of his subordinates, or in
any manner take part in the appointment or removal of
officers and employees in the administrative services of the
village, except as otherwise provided by law or elsewhere in
this division or this Code. Except for the purpose of
inquiry, the board of trustees shall deal with the
administrative service solely through the manager and neither
the board nor any member thereof, shall give orders to any
subordinates of the manager, either publicly or privately.
[14-2] at 4.
prior to the special board meeting, the Village Manager,
Marlo Kemp (“Kemp”) informed the Individual
Defendants that their plan to terminate Plaintiff “was
illegal and should not be done; procedurally, Defendants
could not eliminate an entire department without a budget
amendment that reflected that elimination and accounted for
the employees and other expenses in the eliminated
the special board meeting, Alsberry and the other Individual
Defendants ignored Kemp's warning and terminated
Plaintiff's employment. Defendants allegedly
“attempted to cover their illegal tracks by eliminating
Department 15 at the Village; if Plaintiff's entire
department was eliminated, he was eliminated.”
Id. at 5. However, Plaintiff alleges,
“Defendants never actually eliminated Department 15
from the Village budget”; Defendants continue to pay
Village expenses from Department 15; and Plaintiff's
position and salary were in Department 11, not Department 15.
Id. Immediately after the meeting, Defendants
deactivated Plaintiff's access card, locked him out of
his office, and refused to pay his salary and benefits.
Defendants also placed Kemp on administrative leave and
terminated his employment. Kemp has also filed suit against
brings a four-count complaint against the Village, Alsberry,
and the Trustees. In this opinion, the Court refers to
Alsberry and the Trustees collectively as the
Plaintiff brings a state-law claim for retaliation and
wrongful discharge against all Defendants. Plaintiff alleges
that only the Village Manager (Kemp) was authorized under the
Village Code to terminate his employment. Nonetheless,
Plaintiff alleges that, in retaliation for his opposition to
Alsberry's violations of the Village Code, Defendants
terminated his health insurance benefits, unlawfully
terminated his employment by pretending to eliminate
Department 15, locked him out of his office, and refused to
pay his salary and benefits.
Plaintiff brings a state-law claim for breach of
contract/wrongful termination against all Defendants.
Plaintiff alleges that the “terms of employment
included” Section 2-159 of the Code (quoted above) and
that he “relied upon the Code in accepting employment
at the Village.” [14-2] at 9. Plaintiff alleges that
Defendants violated Section 2-159 and breached his
contractual rights by wrongfully terminating his employment.
Plaintiff claims that all Defendants violated his First
Amendment right to free speech and to be free from
retaliation for exercising his right to free speech.
Plaintiff alleges that he openly disagreed with
Alsberry's political hiring and firing in violation of
the Code and Alsberry's attempts to force political
“patronage” hiring in the Village. [14-2] at 11.
As a consequence, Plaintiff alleges, Defendants
“targeted [him] for retaliation, including effectively
terminating [him] under the guise of ‘eliminating his
department', in violation of the First Amendment.”
Plaintiff contends that Defendants violated his right to
procedural due process by convening a special board meeting
to terminate his employment without authority and in
violation of Section 2-159 of the Code, covering up their
illegal actions under the ...