Vickery v. Jones

• Decision Date: 22 November 1996
• Docket Number: Nos. 96-1055 and 96-1163,s. 96-1055 and 96-1163
• Parties: GARY VICKERY, Plaintiff-Appellant, Cross-Appellee, v. JANELL JONES, WILLIAM PEARMAN and KIRK BROWN, Defendants-Appellees, Cross-Appellants, and SALINE COUNTY REPUBLICAN CENTRAL COMMITTEE and WILLIAM ROBERTS, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1334

100 F.3d 1334

GARY VICKERY, Plaintiff-Appellant, Cross-Appellee, v. JANELL JONES, WILLIAM PEARMAN and KIRK BROWN, Defendants-Appellees, Cross-Appellants, and SALINE COUNTY REPUBLICAN CENTRAL COMMITTEE and WILLIAM ROBERTS, Defendants-Appellees.

Nos. 96-1055 and 96-1163

In the United States Court of Appeals

Seventh Circuit

ARGUED SEPTEMBER 6, 1996

DECIDED NOVEMBER 22, 1996

Appeal from the United States District Court for the Southern District of Illinois, Benton Division, James L. Foreman, Judge, No. 93 C 4030

Mary L. Leahy (argued), Cheryl R. Jansen, Springfield, IL, for Gary Vickery.

Jeffrey D. Colman (argued), Edward J. Lewis, II, David Jimenez-Ekman, Jenner & Block, Chicago, IL, Charles R. Schmadeke, Office of the Attorney General, Criminal Appeals Division, Springfield, IL, for Janell Jones and William Pearman in No. 96-1055.

Craig S. Burkhardt (argued), Peggy J. Ryan, Sorling, Northrup, Hanna, Cullen & Cochran, Springfield, IL, for William Roberts and Saline County Republican Cent. Committee in No. 96-1055.

Jeffrey D. Colman (argued), Edward J. Lewis, II, David Jimenez-Ekman, Jenner & Block, Chicago, IL, for Janell Jones, William Pearman and Kirk Brown in No. 96-1163.

Before CUMMINGS, BAUER and KANNE, Circuit Judges.

CUMMINGS, Circuit Judge.

On January 27, 1993, plaintiff Gary Vickery brought this action against certain Illinois state officials (the "State Defendants") and certain members of the Illinois Republican Party (the "Party Defendants"), alleging that the State Defendants and Party Defendants acted under color of law in violation of 42 U.S.C. secs. 1983 and 1988 in maintaining and operating a political patronage system in which political and financial supporters of the Republican Party of the State of Illinois are favored in regard to state employment as highway maintainers and alleging that his failure to be appointed to a temporary highway maintainer position violated his rights under the First and Fourteenth Amendments. Vickery represents two plaintiff classes: (i) Class A, consisting of all persons denied the position of temporary highway maintainer with the Illinois Department of Transportation ("IDOT") on the basis of political affiliation, who contend that IDOT's consideration of political affiliation in appointing temporary highway maintainers violated their First and Fourteenth Amendment rights under the Supreme Court's decision in Rutan v. Republican Party of Illinois, 497 U.S. 62, and (ii) Class B, consisting of all persons denied the position of permanent highway maintainer on the basis of political affiliation, who contend that the use of temporary highway maintainers was a scheme to circumvent the Rutan decision.

On July 6, 1994, the district court issued an opinion and order denying the State Defendants' motion to dismiss the plaintiff's claims for failure to state a claim, but granting the State Defendants qualified immunity as to the plaintiff's request for monetary damages. Vickery v. Jones, 856 F. Supp. 1313 (S.D. Ill. 1994). At the same time, the court granted the motion of the Party Defendants to dismiss the plaintiff's complaint for failure to state a claim upon which relief could be granted against them. Id. On December 6, 1995, the court entered a declaratory judgment on the pleadings in favor of the plaintiff to the effect that the "defendants' use of political affiliation as a criterion for hiring temporary highway maintainers is unconstitutional" under the Rutan decision, but entered a final judgment on the pleadings in favor of the State Defendants on all of the plaintiff's other claims for monetary, injunctive and declaratory relief. Vickery v. Jones, No. 93 C 4030, final judgment at 2 (S.D. Ill. Dec. 6, 1995).

Plaintiff appeals the district court's denial of other injunctive and monetary relief against the State Defendants and its final judgment in favor of the Party Defendants. The State Defendants cross-appeal the district court's entry of the declaratory judgment in favor of plaintiff. We affirm.

I.

The following facts are undisputed: IDOT is responsible for the design, construction and maintenance of roadways across the State of Illinois. During the winter season, those responsibilities include the removal of snow and ice from the State's roadways. To fulfill its responsibilities, IDOT uses a workforce of both permanent, full-time "highway maintainers" and highway maintainers who have been appointed to temporary, seasonal positions. Temporary highway maintainers perform the same duties as permanent highway maintainers when they are working, but they do not receive certain traditional benefits of State employment, such as health insurance coverage, pension plan participation or vacation time. During the 1990-91 snow season, IDOT hired 750 temporary highway maintainers for the season. By the 1993-94 snow season, such number had grown to 1,133.

In 1990, the Supreme Court held in Rutan v. Republican Party of Illinois, 497 U.S. 62, that public employers could not base promotion, recall, transfer or hiring decisions on political affiliation or political support, except with respect to certain policy-making positions for which political affiliation is an appropriate requirement. Immediately following the decision in Rutan, then Illinois Governor Thompson declared in an Administrative Order that "No hiring or other personnel decisions -- including promotions, transfers or recalls from layoff -- may be decided on the basis of the candidate's party affiliation or support." Administrative Order No. 1 (1990). After Jim Edgar became Governor of Illinois in 1991, he reaffirmed and adopted Governor Thompson's Administrative Order No. 1. In May 1991, Governor Edgar determined that temporary employees would be treated as exempt from the holding in Rutan, with the result that political considerations could be taken into account in filling those positions. In 1992, the parties in the Rutan litigation reached a settlement upon remand to the district court. The settlement included an undertaking by the State to publish a list of positions that were exempt from the Rutan holding and Administrative Order No. 1. The position of temporary highway maintainer did not appear on that list of positions.

The State Defendants admit that, prior to July 5, 1994, "they considered a variety of factors in awarding temporary highway maintainer positions in IDOT, including but not limited to prior work experience at IDOT, recommendations or referrals from a variety of sources, and affiliation with or support by representatives of the Republican Party." At a hearing on August 31, 1994, defendant William Pearman, head of the Office of Personnel at IDOT, described how the position of temporary highway maintainer was filled. He testified that for the snow seasons following May 1991 through July 1994, he used the same system to fill the temporary positions. First, in most cases, he ran the name of each employee who had worked the previous year by the employee's Republican County Chairman. If the County Chairman approved, the employee was called back to work so long as certain prerequisites (such as a valid commercial driver's license, drug test and a physical) were satisfied. If the County Chairman did not approve, in most cases that person was not called back to work. If there was a vacant temporary position, the County Chairman was often notified, and then, in most cases, either the County Chairman referred a person to IDOT or the name of a candidate was submitted to the County Chairman for approval.

Randy Vickery, plaintiff's brother, was Chairman of the Gallatin County Republican Central Committee from March 1990 to March 1992. While he was County Chairman, he called Pearman's office and told him the persons he wanted selected as temporary highway maintainers and was involved in the selection of plaintiff as a temporary highway maintainer. Gary Vickery worked in that capacity from September 30, 1991, to March 31, 1992, at IDOT's shed at Harrisburg, Illinois. The parties agree that he performed his duties in an acceptable manner. However, in April 1992, at the expiration of Gary Vickery's contract, William Eugene Bethel was awarded a six-month contract as temporary highway maintainer instead of Vickery. That position was not advertised or posted in any way. Randy Vickery had ceased to be Republican County Chairman in March 1992.

Since the district court's July 6, 1994 opinion, the State Defendants have taken action to end the policy of considering political affiliation in the selection of temporary employees. Governor Edgar's chief counsel issued a new policy to all agency directors and their chief legal counsel, prohibiting the hiring or firing of temporary employees based on political affiliation, and IDOT established new procedures to fill vacant temporary highway maintainer positions, including the posting of available temporary highway maintainer positions at IDOT facilities around the State. Additionally, an application and evaluation process has been established that does not consider political affiliation.

II.

This Court has recently decided the case of Tarpley v. Jeffers, 96 F.3d 921 (7th Cir. 1996), which raised issues similar to those raised in this case. In 1992, Tarpley applied for a permanent job as a power plant maintenance worker at an Illinois state-run facility. He was denied the job in favor of Harold Blessing, who had been filling the job for several months on a temporary basis upon the recommendation of a Republican County Chairman. Tarpley alleged that Blessing obtained the temporary position as well as the permanent position because of his affiliation with the Republican Party, in violation of Tarpley's First Amendment rights.

The district court in Tarpley granted summary judgment to all defendants. With respect to the filling of permanent positions, the court held, and we agreed, that (i) Tarpley had not shown that he would have...