Crull v. Sunderman

• Decision Date: 17 September 2004
• Docket Number: No. 02-4093.,02-4093.
• Citation: 384 F.3d 453
• Parties: Misti CRULL, Plaintiff-Appellee, v. William SUNDERMAN, John W. Rapp, Justice, Lindsay Parkhurst, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

384 F.3d 453

Misti CRULL, Plaintiff-Appellee, v. William SUNDERMAN, John W. Rapp, Justice, Lindsay Parkhurst, et al., Defendants-Appellants.

No. 02-4093.

United States Court of Appeals, Seventh Circuit.

Argued October 24, 2003.

Decided September 17, 2004.

Rehearing En Banc Denied October 21, 2004.

Appeal from the United States District Court for the Northern District of Illinois, John W. Darrah, J.

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H. Candace Gorman, Catherine Caporusso (Argued), Chicago, IL, for Plaintiff-Appellee.

Brett E. Legner (Argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellants.

Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Misti Crull brought this action pursuant to 42 U.S.C. § 1983 against her former employer, the State of Illinois Judicial Inquiry Board ("JIB"), individual JIB members and employees. She alleged constitutional violations as a result of the termination of her employment.¹ The district court dismissed the JIB as a party because it was immune from suit in federal court. The parties then filed cross-motions for summary judgment. The remaining defendants asserted that summary judgment was appropriate because Ms. Crull had no property interest in her continued employment, and, therefore, they were entitled to qualified immunity. The district court denied both motions. The defendants appealed. We now reverse the judgment of the district court.

I BACKGROUND

A. Facts

1. Parties

The 1970 Illinois Constitution created the JIB for the purpose of investigating judicial misconduct and mental or physical incapacity of the State's judges. See Ill. Const. art. VI, § 15(b). The JIB is composed of board members ("Board"), a full-time Executive Director, two full-time investigators and other support staff. The Executive Director is appointed by the Board to supervise the investigators, to assist with budget preparation and to be the spokesperson to the media, among other responsibilities. The JIB hired Ms. Crull in 1997 as an investigator. Defendants, William Sunderman and Justice John W. Rapp, were members of the Board in 1997, and defendant Lindsay Parkhurst became a board member in 1999. Mr. Sunderman became Chairman of the JIB in August 1999 and was Chairman at the time the Board terminated Ms. Crull's employment. Finally, defendant Kathy Twine was the JIB Executive Director at the time of this appeal; she had been named to that position in 1998. Ms. Twine replaced the former Executive Director, Sue Tohinaka, after Tohinaka's death in 1997. Ms. Twine also fills the role of General Counsel to the JIB. See R. 13 ¶ 7.

2. Purpose and Structure of the Judicial Inquiry Board

As stated above, the 1970 Illinois Constitution created the JIB to conduct investigations and to receive or initiate complaints concerning judges. See Ill. Const. art. VI, § 15(b) & (c). The Board may file complaints with the Courts Commission if there is a reasonable basis to charge a judge with misconduct or to allege physical or mental disability which renders the judge unable to perform judicial duties. See id. at § 15(c).

The JIB's first meeting was held on October 6, 1971, and was called to order by Governor Richard Ogilvie. At that initial meeting, Governor Ogilvie described the agency as an independent agency and commented that the only authority the Governor's office had over the agency was to appoint seven of its nine members. In 1992, after an inquiry from the JIB, the Chief Legal Counsel of the Department of Central Management Services ("CMS") provided a legal opinion that stated that the JIB was not subject to the provisions of the Personnel Code.² See R.41, Ex.4, Letter of Oct. 19, 1992. In 1993, the Attorney General concluded that the JIB was an independent state agency, part of the judiciary, and, therefore, was exempt from the state personnel rules. See id., Letter of Feb. 24, 1993. The JIB formally adopted the Attorney General's opinion in 1993. See id., Minutes of March 12, 1993.

Unlike other state employees, generally speaking JIB employees are not hired from the CMS list of eligible employees but by the Board; the Board's hiring decisions were not restricted by the requirements of CMS. The JIB employees do not have a written contract for any specific employment period, and the Board has no formal grievance or discharge procedures. In some respects, however, JIB employees receive similar treatment to CMS employees. Both parties agree that during the relevant time period (1) JIB employees were evaluated on CMS forms, (2) vacation day forms stated "Personnel Code Vacation Days Earned" and (3) JIB adopted the model sexual harassment policy promulgated by the Governor for agencies within his jurisdiction. See Appellee's Br. at 4; Appellants' Br. at 13. Additionally, Ms. Crull's life and health insurance were administered through CMS. Ms. Crull asserts that, when the JIB had no policy of their own, it would follow the state employee Personnel Code. The defendants claim that they looked to the state policies "just to get a parameter" but have not necessarily followed the policies as provided by the Personnel Code. Appellants' Br. at 12.

3. Hiring of Ms. Crull

When Ms. Crull was hired in 1997 as an investigator for the JIB, she was not hired through CMS; she applied directly to the JIB. Ms. Crull interviewed with Executive Director Tohinaka and, like other JIB employees, did not meet with the Board prior to her offer of employment. At some point during the hiring process, Executive Director Tohinaka told Ms. Crull that she would be placed on a six-month probationary period, after which "they have to have a reason to fire you." R.44, Ex.3 at 21. Ms. Crull also offered testimony that she "was assured that the structure of the JIB was designed to produce credibility and due process for the JIB staff" as well as for the judges they investigate. R.44, Ex.4, Crull Aff. ¶ 2. Executive Director Tohinaka sent Ms. Crull a letter advising her of the date on which she should begin work, her starting salary and that she would receive "full State of Illinois Employee Benefit[s]." R.44, Ex. 4, Letter of Sept. 30, 1997. The Board set Ms. Crull's salary, which does not depend on any set pay scale.

In a 1999 letter responding to Ms. Crull's inquiries about sick leave, the Labor Relations Manager/Chief Labor Relations Counsel for the CMS informed Ms. Crull that the JIB was "not under the jurisdiction of the Governor." R.41, Ex.9. The letter informed Ms. Crull to address the issues with Executive Director Twine and explained that CMS Labor Relations "generally do[es] not give advice regarding matters that are not within the Governor's jurisdiction." Id. Further, in June 2000, Board Chairman Sunderman told Ms. Crull she was an at-will employee.

4. JIB Employees Placed on Probation

In addition to Ms. Crull, at least four other JIB investigators were placed "on probation" when they started their employment. "[F]ormer Executive Director Sue Tohinaka and ... Executive Director Twine had discretion to put employees on probation...." R.46 ¶ 14. Investigators Tom Jennings, John Valencia, Wayne McClory and Dan Marello were all placed on a six-month probationary period upon being hired. Furthermore, based on an initial conversation with Executive Director Tohinaka, McClory believed he could be fired only for cause after his six months' probation. The Board placed Executive Director Twine on probation as a new employee in January 1998 and removed her from probation at their October 9, 1998 Board meeting. See R.44, Ex. 19 at 2.

Several employees also were placed back on probation when they experienced difficulties in performing their responsibilities. Executive Director Tohinaka told Jennings that he was being returned to probationary status. Executive Director Twine told John Valencia that his probation had been extended for another six months. See R.44, Ex.9. Both employees were provided a written explanation of why they were placed back on probation and an opportunity to improve their performance. Finally, the defendants acknowledge that "[t]he JIB, through interim Director Sandra Otaka, also extended McClory's probation during the transition between Executive Directors after Tohinaka's death so that the new director `could fire [him] more easily.'" Appellant's Br. at 16 (quoting R.44, Ex.8, McGuire Dep. at 69-70) (alteration in original).

5. Board's Past Termination of Employees

Prior to Ms. Crull's termination, there is evidence of only one other termination, the Board's termination of Jennings in March 1997. The Board did not provide Jennings with a hearing but made its decision based on "Director Tohinaka's packet of materials ... including Tom Jennings' March 5, 1997 memo in response to his February 24, 1997 Annual Performance Review." R.41, Ex.14. In announcing its decision to terminate Jennings, the Board expressly stated the decision was "with authorization" to the Executive Director "to determine a suitable effective date which gives him at least two weeks notice." Id. at 1-2.

Prior to Ms. Crull's dismissal, the Board became concerned about her ability to conduct investigations. Specifically, the Board was concerned about "her judgment, her ability to write unbiased reports, her reliance on unsubstantiated rumors and her ability to separate rumors from credible evidence." R.41, Ex.12 at ¶ 5. The outside counsel also expressed concerns about even using her as a witness before the Courts Commission. See id. The Board determined to terminate Ms. Crull because it had lost confidence in her investigative abilities. See id.; see also Appellant's Br. at 11 (citing to record). On October 13, 2000, Ms. Crull attended a meeting with three Board members, defendants Sunderman, Rapp and Parkhurst, and the Executive Director, Kathy Twine. At this meeting, those present informed Ms. Crull that the Board had voted unanimously to...