Gunville v. Walker

• Citation: 583 F.3d 979
• Decision Date: 09 October 2009
• Docket Number: No. 08-1035.,08-1035.
• Parties: Robert GUNVILLE and Richard Oakley, Plaintiffs-Appellants, v. Roger WALKER, Jr., Director of the Department of Corrections of the State of Illinois, and Donald J. Snyder, former Director of the Department of Corrections of the State of Illinois, in their individual and official capacities; Michael M. Rumman, former Director of the Department of Central Management Services of the State of Illinois, in his individual capacity only; and James P. Sledge, Director of the Department of Central Management Services of the State of Illinois, in his official capacity only, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

583 F.3d 979

Robert GUNVILLE and Richard Oakley, Plaintiffs-Appellants, v. Roger WALKER, Jr., Director of the Department of Corrections of the State of Illinois, and Donald J. Snyder, former Director of the Department of Corrections of the State of Illinois, in their individual and official capacities; Michael M. Rumman, former Director of the Department of Central Management Services of the State of Illinois, in his individual capacity only; and James P. Sledge, Director of the Department of Central Management Services of the State of Illinois, in his official capacity only, Defendants-Appellees.

No. 08-1035.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 2009.

Decided October 9, 2009.

Howard W. Feldman (argued), Feldman, Wasser, Draper & Benson, Springfield, IL, for Plaintiffs-Appellants.

Debrai G. Haile, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Chicago, IL, Mary Ellen Welsh (argued), Brian F. Barov, Office of Attorney General, Civil Appeals Div., Chicago, IL, for Defendants-Appellees.

Before MANION, ROVNER and SYKES, Circuit Judges.

ROVNER, Circuit Judge.

Robert Gunville and Richard Oakley were terminated from their employment with the State of Illinois after a change in the governing political. Although they would have been eligible to be reemployed at positions throughout the state under prior interpretations of personnel rules, the new administration applied the rules much more narrowly, resulting in a lack of opportunities for reemployment for the two men. They charged certain state officials with violating their rights under the First and Fourteenth Amendments. The district court granted summary judgment in favor of all of the defendants and we affirm.

I.

Gunville and Oakley were employees of the Illinois Department of Corrections ("IDOC") when the Republican lost control of the governor's office to Democrat (now ex-governor) Rod Blagojevich in January 2003. Gunville had been working for IDOC since 1985, beginning as a stationary fireman and working his way up to the position of plant maintenance engineer II by 1992. In 2002, he was assigned to oversee the construction of two new prison facilities: Hopkins Park Correctional Center in Kankakee County, and Grayville Correctional Center in White County. Gunville also retained some duties at Thomson Correctional Center, but he was the only state employee working at Hopkins Park and Grayville in early 2003. His position description listed Kankakee County as the his county of employment. Oakley too began working for IDOC in 1985, and also rose through the ranks to the position of statewide commander of the Special Operations Response Team ("SORT"). Oakley held the rank of colonel at the beginning of 2003, overseeing three regional SORT commanders. Although he was the state-wide SORT commander, his position description listed Sangamon County as his county of employment.

When the new administration took office in January 2003, the governor directed all state agencies to find ways to improve efficiencies and save money to address a statewide budget crisis. In the ensuing months, the new administration halted construction on the Hopkins Park and Grayville correctional centers. Gunville, whose main job responsibilities related to those new facilities, was laid off as of May 30, 2003. Oakley was also laid off on May 30, 2003, following a reorganization of the SORT command structure. SORT was consolidated from three regions into two. One of the regional commanders, Cecil Polley, was demoted from captain to lieutenant and his pay was cut. At this lower rank and pay, Polley was then appointed the new statewide SORT commander, although his duties changed little from his prior regional position. Gunville and Oakley believed they were targeted for layoffs because of their political affiliation. Gunville was an active member of the Republican party; Oakley had voted as a Republican in some primaries. The Republicans had controlled the executive branch in Illinois for twenty-six years when the new Democratic governor took office.

In 2003, certain correctional facilities in Illinois were empty because IDOC lacked operational funding for them. Donald Snyder was the Acting Director of IDOC until June 1, 2003, when Roger Walker became the Director. Michael Rumman was the Director of the Illinois Department of Central Management Services ("CMS") from January 2003 through June 2005. James Sledge is now the Director of CMS. CMS is the agency that administers the personnel rules for all state agencies. Julie Curry, the new Deputy Chief of Staff for the new governor, was responsible for several state agencies, including IDOC. Snyder hired Jim Underwood as the Personnel Manager of IDOC. At the time of his hiring, Underwood had no experience in personnel matters and was not interviewed for the job, but he had been a political supporter of both Curry and Blagojevich. Curry told Underwood to look for positions in IDOC that could be eliminated, and Underwood, together with his retiring predecessor, Nanci Bounds, compiled a list. Underwood asked Bounds to provide a list of positions created under the administration of George Ryan, the outgoing Republican governor, and Bounds complied with that request. Underwood and Bounds reviewed the IDOC organizational chart and together identified positions that were no longer needed. The two also considered for elimination certain positions that did not appear on the organizational chart. Without discussing the list with Snyder, Underwood presented the resultant list to Curry. Underwood conveyed Curry's ensuing approval to Bounds, who then prepared the layoff package for the May 2003 layoffs. In addition to layoffs, some departments underwent reorganizations at the same time. Snyder forwarded the layoff package to CMS in early May 2003, and CMS approved the layoff, which eliminated the positions held by Gunville and Oakley. Twenty other IDOC positions were eliminated at the same time, and all captains' positions were eliminated, a decision that affected more than two hundred IDOC employees. Gunville and Oakley were eligible for recall or reemployment under the personnel rules of the Illinois Administrative Code, but neither were reemployed by IDOC following the layoff.

Gunville had voted as a Republican in primaries from 1998 to 2003, and believed Snyder saw him at certain Republican functions, including fundraisers. Oakley's only political activity was voting, and he consistently voted in Republican primaries while he was working for IDOC. Gunville and Oakley concede that Walker and Rumman did not know them and had no personal role in decisions concerning them. The district court declined to consider an additional piece of evidence concerning the defendants' knowledge of the plaintiffs' political affiliation. Kathleen Danner, an assistant to the personnel manager at IDOC, testified in her deposition that she had been told that voter records were pulled for certain personnel decisions. The district court found this testimony was inadmissible hearsay, and declined to include it in the summary judgment analysis. The evidence that the defendants even knew the plaintiffs' political affiliation was thin; the evidence that political affiliation motivated the layoff decisions is even thinner, as we shall see.

Gunville and Oakley claim that their First Amendment rights were violated when they were terminated because of their political affiliation. They also alleged that their Fourteenth Amendment rights were violated when they were not placed on reemployment lists for all of the counties in which they had been employed, but rather were placed only on lists for their last county of employment. The district court granted judgment in favor of the defendants on all counts, and the plaintiffs appeal.

II.

On appeal, the plaintiffs urge us to reconsider the district court's decision to exclude as hearsay the testimony of Kathleen Danner that she had been told that voter records were pulled for certain personnel decisions. Gunville and Oakley also contend that they have produced sufficient evidence to create an issue of material fact regarding whether they were terminated because of their affiliation with the Republican party, or their lack of affiliation with the Democratic party. Finally, they complain that the Due Process Clause of the Fourteenth Amendment was violated when IDOC interpreted the State's personnel rules to place laid-off employees on reemployment lists only for the last county of their employment, rather than for all counties in which they had ever been employed, as the prior administration had done.

A.

To make out a prima facie claim for a violation of First Amendment rights, public employees must present evidence that (1) their speech was constitutionally protected; (2) they suffered a deprivation likely to deter free speech; and (3) their speech caused the employer's action. George v. Walker, 535 F.3d 535, 538 (7th Cir.2008); Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir.2009).¹ The plaintiffs' affiliation with the Republican party is protected under the First Amendment, and they both suffered the loss of their jobs. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 64, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (the First Amendment forbids government officials to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved) (citing Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980)). See also Powers v. Richards, 549 F.3d 505, 509 (7th Cir.2008) (termination of certain lower-level government employees because of their political affiliation may violate the First Amendment); Carlson v. Gorecki, 374 F.3d 461, 464 (7th Cir.2004) (with limited exceptions, public employees may not be made to suffer adverse employment actions because of their political beliefs); ...