Gregorich v. Lund, 94-2505

Decision Date26 June 1995
Docket NumberNo. 94-2505,94-2505
Parties149 L.R.R.M. (BNA) 2278, 63 USLW 2711 John GREGORICH, Plaintiff-Appellee, v. Carl A. LUND, in his individual capacity, Darryl Pratscher, in his individual capacity, and Shirley K. Wilgenbusch, in her individual capacity, Defendants-Appellants, and Supreme Court of Illinois, by William Madden, Acting Director of the Administrative Office of the Illinois Courts, Frederick S. Green, in his official capacity, Defendants.
CourtU.S. Court of Appeals — Seventh Circuit

Bryan F. Savage, Urbana, IL, John Gregorich (argued), Auburn, IL, for John Gregorich.

Kathy Shepard, Office of Atty. Gen., Crim. Appeals Div., Springfield, IL, Michael Vujovich (argued), Administrative Office of Illinois Courts, Springfield, IL, for Carl A. Lund, Darryl Pratscher and Shirley K. Wilgenbusch.

Before RIPPLE and MANION, Circuit Judges, and SKINNER, District Judge. *

RIPPLE, Circuit Judge.

John Gregorich, a former research attorney for the Appellate Court of Illinois, Fourth District, brought this action under 42 U.S.C. Sec. 1983 against Carl Lund, the former Presiding Justice of that court. Mr. Gregorich alleged that Justice Lund fired him for engaging in union-organizing activities. Mr. Gregorich also alleged a defamation claim, based on state law, against Darryl Pratscher

and Shirley Wilgenbusch. He alleged that their false statements proximately caused his termination. The district court denied Justice Lund's claim of qualified immunity and retained the state tort claim under its supplemental jurisdiction. For the reasons that follow, we reverse in part, and remand.

I BACKGROUND
A. Facts

John Gregorich began working as a staff research attorney for the Appellate Court of Illinois, Fourth District in December 1981. Prior to January 1, 1991, the court's leave policy allowed employees to carry over unused vacation days into the next calendar year. The policy also entitled employees to compensation for unused vacation time in the event of termination. On November 26, 1990, the Illinois Supreme Court changed the leave policy. The amended policy allowed employees to carry over no more than ten days from year to year. Although the new policy became effective January 1, 1991, it applied retroactively. It thus prevented Mr. Gregorich from receiving benefits for sixty-seven of the seventy-seven vacation days he had previously accumulated.

Mr. Gregorich and his fellow research attorneys were unhappy with the new rule. In an effort to change it, Mr. Gregorich began, in February 1991, a union-organizing campaign among the research attorneys of the Fourth District. He also discussed unionization with employees in the Clerk's Office. In April 1991, Mr. Gregorich and another research attorney signed unionization cards authorizing the Teamsters to represent them. However, the Teamsters subsequently withdrew their representation petition that had been pending before the Illinois Labor Relations Board. On November 20, 1991, Carl Lund, then the Presiding Justice of the Fourth District, discharged Mr. Gregorich on grounds of insubordination. Shirley Wilgenbusch, Research Director for the Fourth District, and Darryl Pratscher, Clerk of the Court, apparently had informed Justice Lund that Mr. Gregorich was acting in a "rude or discourteous manner." R.1 at 9. Mr. Gregorich believed that these allegations were pretextual and that he had been fired in retaliation for his union-organizing activities.

B. Earlier Proceedings

Mr. Gregorich filed a two-count complaint against several defendants. The first count named as defendants the Illinois Supreme Court and William Madden, the Acting Director of the Administrative Office of the Illinois Courts. It alleged that these defendants had violated the Contracts Clause, as well as Mr. Gregorich's procedural and substantive due process rights, by changing retroactively the leave policy. Mr. Gregorich's second count consisted of a wrongful discharge claim against Justice Lund, Ms. Wilgenbusch, and Mr. Pratscher, in their individual capacities. It also included a defamation claim against the latter two defendants. The federal claims involved in this count centered around Mr. Gregorich's rights of free association and substantive and procedural due process. The portion of this count that articulates the First Amendment claim central to this appeal states:

By terminating plaintiff's employment with the Fourth District Appellate Court in part because of a personal desire to retaliate against plaintiff for engaging in union activities and to discourage other employees of the Fourth District Appellate Court from engaging in union activities, defendant CARL A. LUND, acting under color of State law, violated plaintiff's right of free association guaranteed by the First and Fourteenth Amendments of the United States Constitution.

R.1 at 15, p 62. Mr. Gregorich sought compensatory and punitive damages from the three defendants. He also sought an order of reinstatement.

The defendants filed a motion to dismiss. The district court dismissed Mr. Gregorich's first count in its entirety. 1 The court also

                dismissed all of the claims in the second count except Mr. Gregorich's First Amendment and procedural due process claims against Justice Lund and his defamation claim against Wilgenbusch and Pratscher.  These remaining defendants then moved for summary judgment on the issues that had survived their motion to dismiss.  The district court granted Justice Lund's motion with respect to the procedural due process claim.  It held that Mr. Gregorich was an "at will" employee.  However, the court denied summary judgment on the remaining issues.  First, it determined that there were genuine issues of material fact concerning whether Justice Lund discharged Mr. Gregorich in retaliation for his union-organizing activities.  Assuming that Mr. Gregorich's discharge was at least partly due to his union-organizing efforts, the district court then held that Justice Lund was not entitled to qualified immunity because the "First Amendment right of public employees to speak and assemble around union issues is well-established."   R.46 at 3-4.  Likewise, the court determined that genuine issues of material fact existed with respect to the defamation claim, and chose to retain this state law claim under its supplemental jurisdiction
                
II DISCUSSION
A. Qualified Immunity
1.

Government officials who deprive an individual of constitutionally protected rights while acting under the color of state law are subject to personal liability for damages. See 42 U.S.C. Sec. 1983. However, officials performing discretionary functions may avoid such liability by invoking the defense of qualified immunity, a powerful shield that insulates officials from suit as long as their conduct does not violate a "clearly established" constitutional right "of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). 2 The plaintiff bears the burden of proof on the issue. McGrath v. Gillis, 44 F.3d 567, 570 (7th Cir.1995); Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). Accordingly, when considering a defense of qualified immunity, we inquire "whether the plaintiff has asserted a violation of a constitutional right at all," Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), and also whether the plaintiff has demonstrated that the applicable constitutional standards were clearly established at the time in question. See Zorzi v. County of Putnam, 30 F.3d 885, 892 (7th Cir.1994) (delineating the two-part test); Rakovich, 850 F.2d at 1210. Although the plaintiff must allege the violation of a right "sufficiently particularized" to enable the district court to determine whether the defendants were on notice that their actions violated clearly established law, Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987), he need not show that the very action in question has previously been held unlawful. Id.; Bakalis v. Golembeski, 35 F.3d 318, 323 (7th Cir.1994) ("[T]he right should not be defined so intricately that invariably guiding law never can be found.") (quoting Rakovich, 850 F.2d at 1211).

Justice Lund contends that it was not clearly established at the time Mr. Gregorich was terminated that judicial research attorneys had the right to engage in union-organizing activities. 3 Mr. Gregorich responds that this right was clearly established. We review the district court's decision to deny Justice Lund qualified immunity de novo. Bakalis, 35 F.3d at 322.

2.

To determine whether it was clearly established that Mr. Gregorich had a right to engage in union-organizing activities, we must identify the nature of his claim and the legal standards that govern it. Mr. Gregorich's claim is grounded in the First Amendment right of free association. See NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958); see also Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 3249-50, 82 L.Ed.2d 462 (1984). When a public employee alleges that he was fired in violation of his constitutional right to associate freely with others, we analyze his claim under the approach announced by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and reiterated in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). See Griffin v. Thomas, 929 F.2d 1210, 1212-14 (7th Cir.1991). 4 In Pickering, the Court noted that individuals do not relinquish their First Amendment rights "to comment on matters of public interest" simply by accepting public employment. 391 U.S. at 568, 88 S.Ct. at 1734-35. However, when the State acts as an employer, it "has interests ... in regulating...

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