Opinion
Case No. 04 C 2947.
May 16, 2006
MEMORANDUM IN SUPPORT OF RESPONSE TO MOTION FOR SUMMARY JUDGMENT
NOW COMES the Plaintiff, JEFFREY HUTCHINSON ("HUTCHINSON"), by and through his attorney, Scott A. Schimanski, and submits his Memorandum in Support of Response to Motion for Summary Judgment, as follows:
As set forth in detail in HUTCHINSON's Local Rule 56(b)(3)(A) Response to State Officials' Rule 56.1 Statement of Facts Pursuant to Local Rule 56.1(a)(3), Local Rule 56(b)(3)(B) Statement of Facts and Local Rule 56(b)(1) Affidavits and other materials referred to in Federal Rule of Civil Procedure 56(e) there are a variety of undisputed and undisputable submissions, as well as, disputed submissions that constitute genuine and material issues that prevent summary judgment for the Defendants ROD R. BLAGOJEVICH and ROGER WALKER, JR. ("STATE DEFENDANTS"). Additionally, HUTCHINSON believes that many of the "facts" asserted by the STATE DEFENDANTS should not be considered by this Court as set forth in detail in the Response to Statement of Facts. Finally, HUTCHINSON believes that summary judgment is not appropriate at this stage of the proceeding pursuant to Federal Rule of Civil Procedure 56(f) ("Rule 56(f)") because HUTCHINSON has been unable to secure through discovery and present additional facts essential to, and supportive of, his opposition. In specific support of this final contention related to Rule 56(f), HUTCHINSON incorporates completely the previously filed Motion to Compel, Reply to Response to Motion to Compel and submissions objecting to the report of the Honorable Magistrate Judge Nan Nolan, as if fully set forth herein for all purposes, as well as, the Affidavit of Jeffrey Hutchinson attached to the Exhibit Volumes as Exhibit 33.
The STATE DEFENDANTS cannot reasonably dispute the authenticity of the CMS position description documents submitted by HUTCHINSON as Exhibit 6. The STATE DEFENDANTS also cannot dispute the content of those position description documents. Additionally, the STATE DEFENDANTS cannot in good faith dispute the authenticity of documents it produced pursuant to the Federal Rules of Civil Procedure governing discovery. See specifically Exhibits 7-8, 11-12, 19-28. Moreover, the STATE DEFENDANTS could not seriously dispute the authenticity of documents presented by HUTCHINSON that were printed from government, or other reliable and trustworthy sources such as publicly available web sites and newspapers. Furthermore, the STATE DEFENDANTS cannot possibly dispute the state of the law as it existed at the time HUTCHINSON was terminated. Given the lack of any ability to dispute the assertions made by HUTCHINSON in his Local Rule 56(b)(3)(B) Statement of Facts and Local Rule 56(b)(1) Affidavits and other materials referred to in Federal Rule of Civil Procedure 56(e) (collectively "Statement of Facts") the assertions by HUTCHINSON should be considered undisputed.
The undisputed facts in this case clearly create genuine issues that warrant a trial. From the very first day that Defendant ROD BLAGOJEVICH ("BLAGOJEVICH") was sworn into office on January 13, 2003, his administration has muscled and manipulated the Illinois civil service system for their political benefit. Statement of Facts ¶¶ 1-9, 11-15, 17-21, 23-24, 29-35, 37. The STATE DEFENDANTS would have this Court apply an extremely restrictive interpretation of the term "manipulate" in this case restricting review only to those cases where these specific STATE DEFENDANTS have taken some affirmative and overt action to "substantially" or "materially" change the verbiage of a specific CMS position description document. However, the Illinois civil service system can be manipulated in many different ways to achieve the goal of sanctioned unlawful employment practices. As defined, manipulate means "to control or play upon by artful, unfair, or insidious means especially to one's own advantage" and "to change by artful or unfair means so as to serve one's purpose." Statement of Facts ¶ 36. HUTCHINSON has presented a wealth of evidence, including the admissions of Abby Ottenhoff, Dede Short and John Harris, that establishes that the STATE DEFENDANTS have manipulated the employment process. Statement of Facts ¶¶ 1-9, 11-15, 17-21, 23-24, 29-35, 37. The STATE DEFENDANTS will no doubt argue without any proper evidence that the manipulation referenced by Abby Ottenhoff and John Harris, as well as, the federal investigation into the hiring practices of the STATE DEFENDANTS referenced by Dede Short, occurred as a result of a rogue individuals. Nevertheless, the fact remains that the STATE DEFENDANTS did manipulate the employment process for the purpose of providing employment to a political favorite outside of the legal bounds established by the Illinois civil service system and the Illinois Personnel Code, as well as, the hiring practices of the STATE DEFENDANTS are the subject of federal investigations. The artful, unfair and insidious method of utilizing rogue employees does not make the manipulation and federal investigation any less offensive. Moreover, the employment of Julie Wilkerson, and others, in positions that the particular individual was unquestionably not qualified to occupy is another specific example of manipulation of the Illinois civil service system for the benefit of political favorites of the STATE DEFENDANTS. The very CMS positions description documents that the STATE DEFENDANTS tout as sacred in this case were not so sacred when Julie Wilkerson, a music teacher, was hired for an Assistant Warden position without the requisite four (4) years of correctional experience as set forth in the CMS position description for the position. Finally, the use of the CMS position descriptions in this case is certainly artful, unfair and insidious given the wealth of information presented by HUTCHINSON that establishes without question that the use is not proper in any context based on historical practices and based on the existence of other position description documents containing substantially similar and materially identical duties and responsibilities as the position at issue, but employment practices based on political affiliation for these positions is clearly and unquestionably improper.
The undisputed facts establish that the checks and balances found to be so important in the Panel opinion of Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005) are simply not presented in this case. No argument or evidence has been presented by the STATE DEFENDANTS that any of the position description documents in this matter have been created or updated by the Illinois Department of Central Management Services ("CMS"). See STATE DEFENDANTS Statement of Facts ¶¶ 4-10. The reason for the lack of argument and evidence is apparent, CMS has no authority to create or update position descriptions. Statement of Facts ¶¶ 4-10. Moreover, even if the STATE DEFENDANTS attempted to present argument or evidence on the checks and balances issue, it would be contrary to well established law. Statement of Facts ¶¶ 4-10. The STATE DEFENDANTS have also failed to present any stipulation document executed by HUTCHINSON purporting to authenticate any position description documents. Furthermore, the undisputed facts establish that CMS position description documents are not sufficiently reliable or accurate to allow this Court to easily ascertain the inherent duties and responsibilities of the position at issue for the purpose of determining whether the STATE DEFENDANTS have satisfied their burden to present evidence to support the defense that political affiliation is an appropriate requirement for the effective performance of the Assistant Warden position. Additionally, it cannot be disputed that the STATE DEFENDANTS seek to eliminate constitutional protections for hundreds and possibly thousands of Illinois Department of Corrections ("IDOC") employees, at more than thirty-five facilities throughout the State of Illinois. Finally, it cannot be disputed, and the STATE DEFENDANTS do not even try, that HUTCHINSON spoke out on matters of public concern unrelated to his duties and unrelated to his political viewpoints. See STATE DEFENDANTS Memorandum in Support of the Motion for Summary Judgment, footnote 4 on page 8.
In this case the STATE DEFENDANTS purport to rely entirely on a position description purportedly from CMS and the Panel opinion in Riley and the opinion in Pierson v. Blagojevich, 437 F.3d 587 (7th Cir. 2005). However, upon close scrutiny the STATE DEFENDANTS are really asking this Court to disregard both Riley and Pierson and to ignore established Seventh Circuit case law. The STATE DEFENDANTS ask this Court to disregard and ignore the requirement that the STATE DEFENDANTS present evidence in this case to establish that CMS created and updated the position descriptions at issue, a critical factor in the Riley Panel opinion. The assertion in this case that position descriptions that are "maintained" by CMS are sufficient to satisfy the clear dictates set forth in Riley is clearly incorrect. The STATE DEFENDANTS have failed to establish the accuracy and reliability of the CMS position description documents, including that CMS created and updated the documents and that the Illinois Civil Service Commission ("Commission") reviewed and approved of the documents (HUTHINSON does not concede that authority even exists for such a proposition). Additionally, HUTCHINSON has presented a wealth of information, far more than a mere scintilla, that identifies genuine issues of material fact regarding the reliability and accuracy of the CMS position description documents, the manipulation of the Illinois civil service system and the failure of the STATE DEFENDANTS to satisfy their burden to establish that political affiliation is an appropriate requirement for the position formerly occupied by HUTCHINSON, including evidence disputing that any "Duty Warden" or budget duties and responsibilities in the most general manner in which the assertions are made by the STATE DEFENDANTS could in any way be dispositive given the evidence contained in CMS position description documents that other positions that are unquestionably not political positions perform the very same generalized functions. HUTCHINSON has also demonstrated and it cannot be legitimately disputed by the STATE DEFENDANTS that distinct meanings exist in the English language for the words "create", "update" and "maintain." Create is defined as, "to bring into existence." Statement of Facts ¶ 36. Update is defined as, "to bring up to date." Statement of Facts ¶ 36. Maintain is defined as, "to keep in an existing state." Statement of Facts ¶ 36. Therefore, the STATE DEFENDANTS could only have established that CMS keeps position descriptions in an existing state but the STATE DEFENDANTS have clearly failed to satisfy the requirement in Riley to establish how the position descriptions were brought into existence and brought up to date.
The STATE DEFENDANTS have also failed to establish the authority by which the CMS position descriptions are promulgated. CMS and the Commission are created by statute and have no general powers or greater powers than those conferred upon them by the legislature. Schalz v. McHenry County Sheriff's Department Merit Commission, 113 Ill.2d 198, 202-03, 497 N.E.2d 731, 732-33 (1986); City of Chicago v. Fair Employment Practices Commission, 65 Ill.2d 108, 112-13, 357 N.E.2d 1154, 1155 (1976);Chestnut v. Lodge, 34 Ill.2d 567, 216 N.E.2d 799 (1966);Pearce Hospital Foundation v. Illinois Public Aid Commission, 15 Ill.2d 301, 307, 154 N.E.2d 691, 695 (1958); Polen v. Hoehler, 405 Ill. 322, 325-26, 90 N.E.2d 729, 732, (1950). Any power or authority must find its source within the provisions of the statute by which the agency was created. Schalz, 113 Ill.2d at 202-03, 497 N.E.2d at 732-33; City of Chicago v. Fair Employment Practices Commission, 65 Ill.2d at 112-13, 357 N.E.2d at 1155. The citations to Illinois statute and the Illinois Administrative Code are insufficient as a matter of law to establish statutory authority. 20 ILCS 415/8a(1), 20 ILCS 415/10(4) and 80 Ill.Admin. Code § 301.20; Denton v. Civil Service Commission of the State of Illinois, 176 Ill.2d 144, 148-52, 679 N.E.2d 1234, 1236-37 (1997). Additionally, the STATE DEFENDANTS have failed to establish that CMS and the Commission act as checks against manipulation. 20 ILCS 415/8a(1), 20 ILCS 415/10(4), 80 Ill.Admin. Code § 1.45 and 80 Ill.Admin. Code § 301.20; Harvey v. Office of Banks and Real Estate, 377 F.3d 698, 702 (7th Cir. 2004); Chesko v. Illinois Civil Service Commission, 355 Ill.App.3d 488, 490-91, 822 N.E.2d 933, 935 (4th Dist. 2005); American Federation of State, County and Municipal Employees, Council 31, AFL-CIO v. Department of Central Management Service, 288 Ill.App.3d 701, 704, 681 N.E.2d 998, 1000 (1st Dist. 1997); Department of Corrections v. Civil Service Commission, 187 Ill.App.3d 304, 109, 543 N.E.2d 190, 194-95 (1st Dist. 1989) (When a statute enumerates certain things, that enumeration implies the exclusion of all other things.); Roth v. Department of Public Aid, 109 Ill.App.3d 457, 460, 440 N.E.2d 910, 913 (1st Dist. 1982) (When a statute enumerates certain things, that enumeration implies the exclusion of all other things.); Boys v. Patterson, 98 Ill.App.3d 409, 411-12, 424 N.E.2d 327, 328 (4th Dist. 1981). Any deference due to legislative descriptions of positions is certainly not as strong in this case where the position description is simply "maintained" by the executive (under what authority we do not know) and not enacted into law. Thompson v. Illinois Department of Professional Regulation, 300 F.3d 750, 757 (7th Cir. 2002).
The only possible authority provided to CMS by the statutory citations of the STATE DEFENDANTS is the authority to establish payroll and position classification plans, such authority clearly does not include any stated authority related to position descriptions. Statement of Facts ¶¶ 4-10. As a part of that statutory authority CMS has created a payroll plan and classification system encompassing a broad range of administrative positions throughout government in the State of Illinois, including class specifications for Senior Public Service Administrator and Public Service Administrator positions. It is by no means easy to ascertain from the class specification for Senior Public Service Administrator the duties and responsibilities inherent in the position having working title of Assistant Warden. It is not any easier trying to ascertain from CMS position description documents the duties and responsibilities that would render political affiliation an appropriate requirement for any Senior Public Service Administrator or Public Service Administrator position because the generalized listings are so similar. For example, it is not appropriate to consider political affiliation for Senior Public Service Administrator positions having the working title of Health Care Administrator with duties and responsibilities similar to those asserted as inherent in the position having a working title of Assistant Warden. It is also not appropriate to consider political affiliation for any Public Service Administrator positions even if the positions include duties and responsibilities similar to those asserted as inherent in the position having a working title of Assistant Warden. No reasonable or credible argument could be made consistent with the CMS position description documents that would support any government official relying on the duties and responsibilities of the CMS position description documents to determine that political affiliation is appropriate for one position and not another when the duties and responsibilities are so similar that no significant, substantial or material difference exists between them. Even if this Court determines that the STATE DEFENDANTS have established the authority under which CMS could promulgate position description documents, HUTCHINSON has presented information that creates a genuine and material dispute regarding the validity of the documents presented in this case and their use in determining whether political affiliation is an appropriate requirement for the position at issue. HUTCHINSON has presented materials that establish that the current administration has muscled and admitted manipulating the employment process, as well as, being the subject of a federal investigation into the employment practices at IDOC. No better example is presented than the documents promulgated by the STATE DEFENDANTS' Office of Management and Budget. The Management and Budget documents clearly establish that the STATE DEFENDANTS believe Wardens are responsible for "making policy decisions" and if Warden vacancies are not filled, despite the presence of two (2) Assistant Wardens at each facility and despite the presence of numerous employees occupying positions purportedly authorized to act in the capacity of Warden, according to CMS position description documents, there would be "no management person to make judgment calls and there will be no one to interpret administrative directives, write institutional directives and lead subordinate staff." Moreover, it is crystal clear that the STATE DEFENDANTS believe Assistant Wardens are nothing more than supervisors and a "technical source for inmate/employee issues that arise" that limits liability. Assistant Wardens were even considered expendable middle management and the STATE DEFENDANTS explored elimination of the position entirely. See Carlson v. Gorecki, 374 F.3d 461, 465 (7th Cir. 2004) (Efforts to eliminate position are relevant to patronage termination claims.). In the face of such overwhelming evidence, this Court could only find that the STATE DEFENDANTS are attempting to manipulate the Illinois civil service system by arguing that Assistant Wardens are significant discretionary "policymakers" in the IDOC bureaucracy. The materials presented by HUTCHINSON establish that the documents relied upon by the STATE DEFENDANTS are not accurate, the position at issue is not classified by CMS as "policy-making" under the statutory class specification system and include admissions by the STATE DEFENDANTS that CMS position descriptions are nothing more than generalized lists of duties and responsibilities, manipulation of the Illinois civil service system has occurred during the administration of BLAGOJEVICH and the employment practices of the STATE DEFENDANTS are currently the subject of a federal investigation.
The STATE DEFENDANTS are also asking this Court to ignore additional fundamental holdings in Riley and Pierson. InRiley and Pierson the presence of stipulation documents regarding the position descriptions at issue in those cases were critical to the outcome. In this case the STATE DEFENDANTS ask this Court to disregard and ignore the absence of such a document. Additionally, the STATE DEFENDANTS ask this Court to disregard and ignore the two (2) different "official" position description documents "maintained" by CMS and presented to HUTCHINSON in this matter. The position description document delivered to this Court and purported to be the "official" position description document "maintained" by CMS contains a handwritten "Y" in box 15 indicating "Rutan Exempt". By contrast, the position description document delivered to HUTCHINSON by CMS and attached as Exhibit 6E, pp. 5-6, purported to be the "official" position description document "maintained" by CMS does not contain any notation in box 15 indicating "Rutan Exempt". Moreover, the STATE DEFENDANTS are asking this Court to ignore and disregard the critical holdings related to the effective date of the position description at issue. In neither of the Panel opinions Riley, nor Pierson does the appellate court mention a position description signed by Defendant ROGER WALKER, JR. ("WALKER") or a position description that is materially and substantially different from the preceding position description. The STATE DEFENDANTS ask this Court to ignore and disregard the distinction in this case regarding those issues. Furthermore, the STATE DEFENDANTS ask this Court to ignore and disregard well established and long standing precedent regarding submission of affidavits by the non-moving party in response to a motion for summary judgment. See Federal Rule of Civil Procedure 56. The STATE DEFENDANTS cannot make any legitimate or credible argument that the affidavits presented by HUTCHINSON are not properly relied upon by this Court. HUTCHINSON need not match the STATE DEFENDANTS affidavit for affidavit or persuade this Court that his case is convincing. Payne v. Pauley, 337 F.3d 767, 771-72 (7th Cir. 2003). The STATE DEFENDANTS could present no evidence or legal support for the assertion that the affidavits submitted by HUTCHINSON could not defeat summary judgment at this stage of the proceedings. The STATE DEFENDANTS have not and cannot present any support that the affidavits are "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience." Id., at 772. In fact, the affidavits submitted by HUTCHINSON are the exact type of evidence based on personal knowledge, including reasonable inferences grounded in observation and other first-hand personal experience, found to be acceptable. Id. In this case, HUTCHINSON has presented affidavits that include detailed factual evidence to support the claims made by HUTCHINSON and defeat the defenses raised by the STATE DEFENDANTS. Under such circumstances where the facts specifically averred by HUTCHINSON contradict the assertions by the STATE DEFENDANTS, summary judgment must be denied. Id., at 773. Moreover, HUTCHINSON has presented evidence that is far more than the "self serving" affidavit of "a plaintiff" as referred to in Riley. In fact, HUTCHINSON has presented affidavits from individuals with cumulative state employment experience in the Illinois Department of Corrections ("IDOC") that approaches two hundred (200) years, including experience of a Chief of Operations, the third (3rd) highest position within IDOC, experience of a Deputy Director, the position that controls institutional policymaking and experience of six (6) individuals that occupied the position of Warden. None of the affiants are "mice who forbore to exercise" any duty, listed or otherwise, but simply provide testimony regarding the accuracy, reliability and manipulation of position description documents, as well as, the inherent duties and responsibilities of the Assistant Warden position. The STATE DEFENDANTS simply cannot provide any credible argument that these individuals are not competent to provide pertinent information on the issues of consequence in this matter. For example, the Affidavit of Dwayne Clark establishes personal knowledge through employment by the State of Illinois, IDOC for over twenty-four (24) years, including occupying the positions of Assistant Warden, Warden, Deputy Director and Chief of Operations. The Affidavit of Dwayne Clark establishes personal knowledge through numerous opportunities to review numerous position descriptions for IDOC employees, including IDOC position descriptions and CMS position descriptions, and specifically including CMS position descriptions for Assistant Warden and Warden positions under the Senior Public Service Administrator classification and positions under the Public Service Administrator classification. The Affidavit of Dwayne Clark establishes personal knowledge through the job responsibilities as Chief of Operations including creating and updating position descriptions for IDOC positions, as well as, communicating with personnel from CMS and the Illinois Civil Service Commission regarding duties and responsibilities of IDOC positions and personal consultation with the Director of IDOC, including WALKER and the Director's staff, including the Associate Director, Assistant Director and Chief of Staff, regarding the duties and responsibilities of positions within IDOC, including the positions of Assistant Warden and Warden, as well as, positions classified as Public Service Administrator positions at correctional centers throughout the State of Illinois. The Affidavit of Dwayne Clark establishes personal knowledge through the job responsibilities as a Deputy Director including personal consultation with the Chief of Operations of IDOC regarding the duties and responsibilities of subordinates that occupied the positions of Assistant Warden and Warden, as well as, positions classified as Public Service Administrator positions at correctional centers throughout the State of Illinois, managing and evaluating subordinates that occupied the positions of Warden at correctional centers throughout the State of Illinois. The affidavits of others presented in support of HUTCHINSON's position are equally replete with evidence establishing sufficient personal knowledge through employment by the State of Illinois, IDOC regarding the reliability and accuracy of CMS position description documents and the duties and responsibilities of the Assistant Warden and Warden positions, as well as, positions classified as Public Service Administrator positions to provide competent evidence now, and ultimately at the trial of this matter. In fact, it is Larry Plummer, that is incompetent, as a matter of law, to establish the inherent duties and responsibilities of the position at issue because three (3) months worth of service, none of which was with the IDOC, at any correctional facility including Vienna Correctional Center or as Assistant Warden or Warden, does not make Larry Plummer competent to authenticate or establish the inherent duties and responsibilities of IDOC positions.
HUTCHINSON has also established that the position he formerly occupied was subject to management approval and actions were taken under specific administrative directives from immediate superiors, as well as, that the inherent duties and responsibilities of the Assistant Warden position were well defined, limited in scope and tightly constrained to limit discretionary decision making. See Elrod v. Burns, 427 U.S. 347, 367-68 (1976); Thompson, 300 F.3d at 757; Milazzo v. O'Connell, 108 F.3d 129, 133 n. 1 (1997); Flenner v. Sheahan, 107 F.3d 459, 463-64 (7th Cir. 1997). In fact, all IDOC rules, and policies undergo an extensive review and approval process prior to being published, including input and recommendations from internal and external experts, legal, operational, administrative and executive branches of IDOC and many other resources and all significant and discretionary decisions regarding IDOC finance and administration are made by offices and sections reporting directly to the executive staff of WALKER. Statement of Facts ¶¶ 17-18. The IDOC mission cannot be disputed. The mission of IDOC is to protect the public from criminal offenders through a system of incarceration and supervision which securely segregates offenders from society, assures offenders of their constitutional rights and maintains programs to enhance the success of offenders' reentry into society. Statement of Facts ¶ 33. Consistent with the IDOC mission, CMS position description documents simply do not accurately describe the duties and responsibilities of positions within IDOC and IDOC administration did not utilize or rely upon CMS position descriptions to make employment decisions.
It cannot be disputed by the STATE DEFENDANTS that the position description document presented by the STATE DEFENDANTS to evidence the inherent duties and responsibilities of the position at issue is alleged to have become effective in June of 2003, while the STATE DEFENDANTS were in power. In fact, the position description document appears to contain the signature of WALKER. Moreover, it also cannot be disputed by the STATE DEFENDANTS, despite their contentions to the contrary, that the June 2003 position description is materially and substantially different on its face from the previous position descriptions (For example, see affidavit of Larry Plummer, Exhibits B, D-E, J, position description documents containing no budget responsibilities whatsoever.)
HUTCHINSON has also demonstrated that IDOC is organized in such a manner to prevent discretionary decision making by individuals occupying Assistant Warden positions, an issue mentioned inRiley and Pierson. (Ministerial tasks as simple as directives regarding wearing baseball caps and televisions were formulated at the highest levels of the IDOC bureaucracy far above the position of Assistant Warden.). HUTCHINSON has established the significance of the IDOC hierarchy and the role that hierarchy plays in limiting the inherent authority of individuals occupying Assistant Warden positions. The STATE DEFENDANTS would have this Court ignore and disregard this information. Additionally, the position HUTCHINSON formerly occupied was subject to management approval and actions were taken under specific administrative directives from immediate superiors, as well as, the inherent duties and responsibilities of the Assistant Warden position were well defined, limited in scope and tightly constrained to limit discretionary decision making. See Elrod v. Burns, 427 U.S. 347, 367-68 (1976); Thompson, 300 F.3d at 757; Milazzo v. O'Connell, 108 F.3d 129, 133 n. 1 (1997); Flenner v. Sheahan, 107 F.3d 459, 463-64 (7th Cir. 1997). Unlike the situation mentioned by the appellate court in Riley, the undisputed and undisputable assertions in this case establish that IDOC had a command and control structure that required all Assistant Wardens to act under specific administrative directives from their superiors. Assistant Wardens received administrative direction from Wardens who received their administrative directives from Deputy Director level personnel, including Assistant Deputy Directors. The duties and responsibilities resulting from the specific administrative directives given to Assistant Wardens were of limited scope to allow for tight control within the chain of command structure of IDOC. In order to maintain tight controls IDOC ran the state prison system by dividing the system into districts commanded and controlled by Deputy Director level personnel. All policy functions within a district were controlled at the Deputy Director level and above. Policy judgments required for the operation of the IDOC prison system were made by Deputy Directors and their superiors. All IDOC rules, and policies undergo an extensive review and approval process prior to being published, including input and recommendations from internal and external experts, legal, operational, administrative and executive branches of IDOC and many other resources and all significant and discretionary decisions regarding IDOC finance and administration are made by offices and sections reporting directly to the executive staff of WALKER. CMS position description documents simply do not accurately describe the duties and responsibilities of positions within IDOC and IDOC administration did not utilize or rely upon CMS position descriptions to make employment decisions. It is quite clear that the Riley opinion does not establish a list of duties and responsibilities that are outcome determinative. At its core theRiley opinion stands for the proposition that if a state employer desires to meet its burden to establish that political affiliation is an appropriate requirement for a position under Branti v. Finkel, 445 U.S. 507 (1980) and Elrod v. Burns, 427 U.S. 347 (1976) by presenting position descriptions to the court for review, then the state employee should be allowed to secure and present evidence regarding the system, including and asserted checks and balances, under which the position descriptions are created, updated and contain a realistic documentation of the actual duties and responsibilities of the position at issue. Riley, 425 F.3d at 361-62. In the instant case, unlike the record articulated by the Panel inRiley, HUTCHINSON is challenging the authenticity and reliability of the position descriptions and the Illinois civil service system, the Affidavit of Larry Plummer, the citations to Illinois law purporting to give authority to CMS and the Commission, including the asserted checks and balances. Moreover, unlike the record articulated in Riley, HUTCHINSON is asserting that elected officials have manipulated the Illinois civil service system and position descriptions to allow the filling of positions with political favorites when it was not appropriate.
In this case, HUTCHINSON has presented information that establishes that assisting in the formulation and implementation of rules, regulations, directives, policies and procedures cannot be a sufficient duty or responsibility that makes political affiliation an appropriate requirement for a position in the State of Illinois by presenting CMS position descriptions, the very same sort of position description relied upon by the STATE DEFENDANTS, for numerous positions that the STATE DEFENDANTS could not argue have no political implications. HUTCHINSON has also established that assisting in the administration and direction of operations cannot be a sufficient duty or responsibility that makes political affiliation an appropriate requirement for a position in the State of Illinois by presenting CMS position descriptions, the very same sort of position description relied upon by the STATE DEFENDANTS, for numerous positions that the STATE DEFENDANTS could not argue have no political implications. Additionally, HUTCHINSON has established that planning and directing the budget (an activity that was not part of the duties of the Assistant Warden in 1965, or for the twenty-three (23) years from 1980 until June 2003 when the STATE DEFENDANTS were in office) cannot be a sufficient duty or responsibility that makes political affiliation an appropriate requirement for a position in the State of Illinois by presenting CMS position descriptions, the very same sort of position description relied upon by the STATE DEFENDANTS, for numerous positions that the STATE DEFENDANTS could not argue have no political implications. The STATE DEFENDANTS have simply offered a listing of generalizations and buzzwords in an effort to convince this Court that political affiliation is an appropriate requirement for the position formerly occupied by HUTCHINSON. The evidence clearly establishes that HUTCHINSON was no more than an administrative supervisor with well defined and limited duties constrained by the IDOC command structure, his immediate superior and the volumes of directives, rules and regulations promulgated by IDOC.
Additionally, HUTCHINSON has established that a long standing and legitimate state court decision exists that determined that an individual occupying the position of Assistant Warden within the State of Illinois correctional system could not be transferred or terminated for political reasons. Derringer v. Civil Service Commission, 66 Ill.App.3d 239, 383 N.E.2d 771 (5th Dist. 1978). When considering the issues in these cases this Court is allowed to look to whatever decisional law is available. McGrath v. Gillis, 44 F.3d 567, 570 (7th Cir. 1995). In Derringer the determination of the Commission, the same Commission referenced in the opinion in Riley, was reversed by an Illinois trial court and that trial court decision was subsequently affirmed in late 1978. The trial and appellate courts determined that an assistant warden could not be transferred or terminated for political reasons. TheDerringer court took note of the recognition by the Commission that transfer and discharge of an assistant warden for partisan political purposes was clearly contrary to the stated aim of the Personnel Code, the same Personnel Code that the STATE DEFENDANTS purport gives authority to CMS to promulgate position descriptions, to achieve a system of personnel administration based on merit principles and scientific methods. The STATE DEFENDANTS have also admitted, under the Panel opinion analysis in Riley, that the duties and responsibilities set forth in a series of position descriptions for the assistant warden position at issue in Derringer have not changed materially since 1974, prior to the Derringer decision in 1978. Statement of Facts ¶¶ 182-84. Given the treatment of the position in Derringer and the admission by the STATE DEFENDANTS that the duties and responsibilities of the assistant warden position have "not been changed materially since 1974" prior to the Derringer decision it would be unreasonable to grant judgment in favor of the STATE DEFENDANTS for the same position addressed by the state court.
In footnote 4 on page 8 of the Memorandum in Support of the Motion for Summary Judgment the STATE DEFENDANTS ask this Court to dismiss Count II of the First Amended Complaint relating to retaliatory discharge because the claim "falls under the same analysis as her patronage claim in Count I." However, the STATE DEFENDANTS have provided no support for this assertion. Therefore, this Court should summarily deny the Motion for Summary Judgment and any qualified immunity defense regarding Count II. In the event this Court determines to consider the singular statement made by the STATE DEFENDANTS regarding Count II, HUTCHINSON asserts that he has demonstrated that he spoke out on matters of public concern unrelated to his position or his political beliefs and was terminated as a result. Statement of Facts ¶¶ 25-33. The United State Supreme Court has previously called for a distinct inquiry where a government employer takes adverse action on account of an employee's right of free speech, even when the asserted free speech violation is intermixed with an asserted violation of the right of free association, each of which is protected by the First Amendment. O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 719 (1996) (There will be cases where specific instances of the employee's speech or expression, which require balancing in the Pickering context, are intermixed with a political affiliation requirement. In those cases, the balancing Pickering mandates will be inevitable.);Pickering v. Board of Education, 391 U.S. 563 (1968). The Seventh Circuit also requires a fact specific inquiry and application of the Pickering balancing test when speech by employees labeled "policymakers" is unrelated to the duties of the position or the employee's political viewpoints, including speech targeting abuse of office issues. Vargas-Harrison v. Racine Unified School District, 272 F.3d 964, 971-72 (7th Cir. 2001); Bonds v. Milwaukee County, 207 F.3d 969, 979 (7th Cir. 2000); Ryan v. Illinois Department of Children Family Services, 185 F.3d 751, 759 (7th Cir. 1999); Marshall v. Porter County Plan Commission, 32 F.3d 1215, 1219-20 (7th Cir. 1994); Wilbur v. Mahan, 3 F.3d 214, 217 (7th Cir. 1993). The claim in Count II asserted by HUTCHINSON and supported by the instant filings could in no way be determined to be "merely a restatement of [his] claim that political affiliation is a forbidden criteria" under the Panel opinion in Riley. Furthermore, the policymaking employee exception does not cover all employee speech and does not immunize public employer action unconnected to and unmotivated by need for political loyalty. Vargas-Harrison, 272 F.3d at 971-74; Bonds, 207 F.3d at 979; Ryan, 185 F.3d at 759;Wilbur, 3 F.3d at 217. Whether an individual is a policymaker is not the determinative question in this case. An individual does not surrender all of his freedom of speech by becoming a confidential or policymaking employee of government. Marshall, 32 F.3d at 1221 (It was too big a leap for the district court to infer that once a public employee is put into the policymaker slot, he loses his right of free speech.); Wilbur, 3 F.3d at 217. This Court should also consider that the Supreme Court recently heard oral argument in the matter of Garcetti v. Ceballos, No. 04-473, regarding the question presented related to whether a public employee engaged in purely job related speech, expressed strictly pursuant to the duties of employment is protected by the First Amendment from termination underPickering v. Board of Education, 391 U.S. 563 (1968).
It is well established that complaints regarding misuse of taxpayer funds constitute protected speech. Sullivan v. Blanco, 360 F.3d 692, 699 (7th Cir. 2004) (chronic time abuse);Vargas-Harrison, 272 F.3d at 973 n. 4; Marshall, 32 F.3d at 1219-20 (abuse of time and funds, and failure to conduct duties and responsibilities of position); Breuer v. Hart, 909 F.2d 1035, 1038 (7th Cir. 1990) (allegations of favoritism and receipt of pay for work not performed); Ohse v. Hughes, 816 F.2d 1144, 1150-51 (7th Cir. 1987) (misappropriation of public funds). It is equally well established that private expression of one's views is not beyond constitutional protection. Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 695-96 (1979); Button v. Kibby-Brown, 146 F.3d 526, 531 (7th Cir. 1998); Hulbert v. Wilhelm, 120 F.3d 648, 654 (7th Cir. 1997); Campbell v. Towse, 99 F.3d 820, 827 (7th Cir. 1996);Cliff v. Board of School Commissioners of the City of Indianapolis, 42 F.3d 403, 411 (7th Cir. 1994). The First Amendment and the decisions of the United States Supreme Court protect the public employee who arranges to communicate privately with her employer rather than to spread her views before the public. Id. Public employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions and a government employee like any citizen may have a strong legitimate interest in speaking out on public matters. Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 1887 (1994); Campbell, 99 F.3d at 828 (Importance of viewpoint of speaker with substantial experience.); Breuer, 909 F.2d at 1038 (Wrongdoing may often be revealed only by those who have some personal stake in exposing wrongdoing.); Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1257 (7th Cir. 1985) (A government employee has a constitutional right to make accusations of malfeasance in office, even when the accusations are against fellow workers.). The ruling in Marshall clarifies that the content of the "for political reasons" prong of the policymaking exception does not include speech such as reporting potential violations of the law. Speech that exposes official impropriety or corruption has generally been accorded the greatest level of First Amendment protection. Speech that addresses questions of public safety, proper allocation of resources and departmental reorganization have been recognized as involving matters of vital public concern. Campbell, 99 F.3d at 828; Auriemma v. Whalen, 910 F.2d 1449, 1460 (7th Cir. 1990). HUTCHINSON has alleged that he spoke out on a variety of matters of public concern that did not involve his views on political or policy issues. Statement of Facts ¶¶ 25-33. Additionally, the matters did not relate to the performance of his duties. Id.; See also Affidavit of Larry Plummer, Exhibits A-J (The generalized list of buzzwords and legal conclusions does not include any duties or responsibilities related to the matters upon which HUTCHINSON spoke out about, including any duty or responsibility related to filling employment vacancies or excessive use of overtime, the residency requirements or final approval for employee evaluations.). These allegations are undisputed and undisputable. Id. Therefore, this Court should deny the Motion for Summary Judgment regarding Count II.
The STATE DEFENDANTS assert that they are entitled to qualified immunity on Counts I and II. The qualified immunity question boils down to whether, in light of the law and facts, the STATE DEFENDANTS could have reasonably believed that HUTCHINSON's position was unprotected. Flenner, 107 F.3d at 462; Pounds v. Griepenstroh, 970 F.2d 338, 340 (7th Cir. 1992). Although qualified immunity is a question of law that a court should resolve before trial if possible, this Court cannot do so where the question turns on facts that are in dispute. McMath v. City of Gary, 976 F.2d 1026, 1031-32 (7th Cir. 1992); Apostol v. Landau, 957 F.2d 339, 342 (7th Cir. 1992); Jones v. City of Chicago, 856 F.2d 985, 994-95 (7th Cir. 1988); Wrigley v. Greanias, 842 F.2d 955, 958 (7th Cir. 1988); Green v. Carlson, 826 F.2d 647, 651 (7th Cir. 1987). If resolution of a claim of qualified immunity depends on disputed issues of material fact the issue must await a full trial. Mitchell v. Randolph, 215 F.3d 753, 755 (7th Cir. 2000).
It is not absolutely necessary for HUTCHINSON to present on-point cases to avoid qualified immunity. Flenner, 107 F.3d at 465. A position that is primarily ministerial, carries little autonomy or discretion, and occupies an extremely low rung on the bureaucratic ladder is clearly protected, even if no case has specifically deemed it so. Flenner, 107 F.3d at 465; Upton v. Thompson, 930 F.2d 1209, 1213 (7th Cir. 1991). An employee who performs primarily ministerial functions and who has little autonomy or discretion in performing his duties is not subject to patronage dismissal. Flenner, 107 F.3d at 463. The allegations made by HUTCHINSON place HUTCHINSON squarely within the category of employees not subject to patronage employment practices. Any government official should realize that firing any employee such as HUTCHINSON having duties and responsibilities for political reasons is forbidden, even if no case has come down saying as much. As stated above it is entirely unreasonable for the STATE DEFENDANTS to come to this Court bearing the CMS position description document and requesting sanctuary when this Court gives consideration to each and all of the materials presented by HUTCHINSON.
When this Court takes all of the assertions made by HUTCHINSON, draws all reasonable inferences and views the facts and inferences in the light must favorable to HUTCHINSON the position of Assistant Warden at Vienna Correctional Center occupied an extremely low rung on the bureaucratic ladder. Flenner, 107 F.3d at 465 (The employees received daily instructions from their immediate supervisors as to the handling, care and supervision of the prisoners to whom they were assigned); Milazzo, 108 F.3d 129 (The complaint specifically alleged that Milazzo was not accorded nor did she exercise in the performance of her duties autonomous or discretionary authority and that the she was subject to close supervision and approval from the defendants). HUTCHINSON is among the government workers who are clearly and completely protected from patronage firing. Flenner, 107 F.3d at 465; Milazzo, 108 F.3d 129.
The courts have never required a plaintiff to find a "nearly identical" case, involving a nearly identical position, that rules against the government officials. The operation of qualified immunity standard depends substantially upon the level of generality at which the relevant "legal rule" is to be identified and calls for something in between, at one extreme, a plaintiff's reliance on the general proposition that the particular right is quite clearly established by the Constitution, so that any violation is rendered actionable and, at the other extreme, HUTCHINSON's need to identify a "white horse" case that is on all fours with the current one in factual terms. Id. HUTCHINSON need not offer proof that the very action in question has previously been held unlawful in order to overcome the qualified immunity defense, but is only required to show that in the light of the pre-existing law the unlawfulness of the STATE DEFENDANTS actions was apparent. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515 (2002); Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038 (1987). A general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question. Id., at 2516; 640. The salient question is whether the state of the law at the time of the conduct at issue provided fair warning that the treatment of HUTCHINSON was unconstitutional. Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596 (2004); Hope, 536 U.S. at 739, 122 S.Ct. at 2515;Anderson, 483 U.S. at 639, 107 S.Ct. at 3038; Conner v. Reinhard, 847 F.2d 384, 388 (7th Cir. 1988).
There can be no question that at the time of the alleged constitutional violation the "safe harbor" created by the Panel opinion in Riley did not exist and the ruling in Pierson was two (2) years away. Therefore, no argument in support of qualified immunity could possibly be based on these two (2) decisions. At the time of the action taken by the STATE DEFENDANTS federal appellate courts had determined that a variety of positions with similar duties and responsibilities as those alleged to exist for the position occupied by HUTCHINSON do not require party affiliation for effective performance. Hale v. State of New York Office of Children and Family Services, 219 F.3d 61 (2nd Cir. 2000) (Summary judgment is not appropriate regarding public speech objecting to superiors policies and practices, proper implementation of appropriate facility policies and concerning the proper administration of State facilities for the incarceration of juveniles, including internal facility administration relating directly to the plaintiff's duties and responsibilities by Director of youth correctional facility having policy-influencing position held at the pleasure of the Governor, even if the position is later determined to be a policymaker.); Sowards v. Loudon County, 203 F.3d 426, (6th Cir. 2000) (Political affiliation is not an appropriate requirement for jailer with decision-making authority with respect to providing for the needs and safety of the prisoners whose duties require discretion in the day-to-day operation of the jail, but who are supervised by and must follow the directives of superior.); Diruzza v. County of Tehama, 206 F.3d 1304 (9th Cir. 2000) (Jail employee responsible for the custody, care, supervision, security, movement and transportation of inmates, as well as, drafting and revising policies and procedures in order the comply with court-ordered requirements protected from patronage termination.); Terry v. A.C. Cook, 866 F.2d 373, 377-78 (11th Cir. 1989) (After reviewing responsibilities of the position and relationship to elected official it was determined that loyalty to elected official is not a requirement for jailer position because such position traditionally revolve around limited objectives and defined duties and do not require those holding them to function as the alter ego of the elected official although each job implements policies the limited and defined roles of the position do not support the need for political loyalty to the elected official.);Dickeson v. Quarberg, 844 F.2d 1435, 1443 (10th Cir. 1988) (After reviewing responsibilities of the position, including housing and feeding prisoners, supervising employees, preparing work schedules, ordering food and other nourishment related issues and relationship to elected official it was determined that loyalty to elected official is not a requirement for head jailer.); See also Kiddy-Brown v. Blagojevich, 408 F.3d 346 (7th Cir. 2005); Flenner, 107 F.3d 459; Milazzo, 108 F.3d 129; Vrdolyak v. City of Chicago, 604 F.Supp. 1325 (N.D.Ill. 1984).
WHEREFORE, Plaintiff, JEFFREY HUTCHINSON, respectfully prays that this Honorable Court enter an Order denying the Motion for Summary Judgment.