Yahnke v. Kane Cnty.

• Citation: 823 F.3d 1066
• Decision Date: 24 May 2016
• Docket Number: No. 15-2162,15-2162
• Parties: Steven Yahnke, Plaintiff–Appellant, v. Kane County, Illinois, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

823 F.3d 1066

Steven Yahnke, Plaintiff–Appellant
v.
Kane County, Illinois, et al., Defendants–Appellees.

No. 15-2162

United States Court of Appeals, Seventh Circuit.

Argued January 20, 2016
Decided May 24, 2016

William J. Delaney, Cynthia M. Rote, Attorneys, Delaney Law, Chicago, IL, for Plaintiff–Appellant.

Erin Marie Gaeke, Joseph F. Lulves, Attorneys, Office of the Kane County States Attorney, Geneva, IL, for Defendant–Appellee Kane County, Illinois.

Patrick M. Kinnally, Paul G. Krentz, Attorneys, Kinnally Flaherty Krentz & Loran PC, Aurora, IL, for Defendant–Appellee Patrick Perez, Sheriff of Kane County, in his official and individual capacities.

Before Wood, Chief Judge, and Manion and Rovner, Circuit Judges.

Rovner, Circuit Judge.

After the Sheriff of Kane County terminated Deputy Sheriff Steven Yahnke's employment, Yahnke sued the County and the Sheriff, alleging that he was terminated because of his political affiliation and that the termination occurred without due process. The district court granted summary judgment in favor of the defendants on both counts, and Yahnke appeals. We affirm the judgment on the due process claim but we vacate the judgment on the

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political affiliation count and remand for trial.

I.

The Kane County Sheriff's office hired Yahnke in 1986, and he worked as a Deputy Sheriff for more than twenty years, eventually holding the rank of Sergeant. The position of Sheriff is an elected post in Kane County, and in 2006, then-Sheriff Kenneth Ramsey opted to retire rather than run for re-election. Deputy Sheriff Patrick Perez decided to run for the post, and Yahnke also contemplated entering the race. At the time, Yahnke told several people about his intention to run and spoke to a number of people about becoming his campaign manager and raising funds. Eventually, Yahnke decided not to run for the office, and Perez, a Democrat, defeated Republican Kevin Williams, another Deputy Sheriff whom Yahnke had supported.

Perez took over the post in December 2006. Earlier that year, Sheriff Ramsey had approved Yahnke's request to engage in secondary employment as the part-time police chief of the Village of Maple Park. In June 2007, after Sheriff Perez took office, Yahnke was injured while working as a Deputy Sheriff and began receiving disability benefits. In July 2007, Perez and Undersheriff Stephen Ziman advised Yahnke that his secondary employment as Maple Park police chief was suspended until he could return to work in the Sheriff's office. But Ziman allowed Yahnke to continue with some involvement in the Maple Park position, such as opening the mail. In August 2007, Yahnke hosted a party at his home attended by almost all of the Maple Park police officers. At that event, Yahnke openly discussed a plan to run for the Sheriff's position in 2010, the next election cycle.

Because Yahnke remained on temporary total disability, in early November 2007, Ziman ordered Yahnke to cease all secondary employment, including the limited involvement in Maple Park that Ziman previously allowed. In the meantime, Perez sought a legal opinion from the County's State's Attorney regarding whether Yahnke's dual employment presented a conflict of interest. The State's Attorney consulted with the Illinois Attorney General and concluded that secondary employment as chief of the Maple Park police presented a potential conflict of interest with Yahnke's job as a Deputy Sheriff.¹ Later that same month, Sheriff Perez permanently revoked Yahnke's authorization to act as police chief of Maple Park.

Sheriff Perez also opened an investigation with the Office of Professional Standards (“OPS”) into whether Yahnke continued to work as police chief of Maple Park during the period that his secondary employment was suspended. The OPS investigator collected business and public records that could be construed as evidence that Yahnke had continued to perform some of his duties as police chief of Maple Park after November 2007. On October 7, 2008, Sheriff Perez notified Yahnke in two letters that he was filing charges with the Merit Commission seeking his removal for cause. In the first letter, Perez accused Yahnke of violating Merit Commission Rules by failing to display absolute honesty during an OPS investigative interview that took place on September 2, 2008, and by failing to follow the orders of the Sheriff and Undersheriff to cease secondary employment. In the

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second letter, Perez charged Yahnke with failing to display absolute honesty regarding an OPS investigation into Yahnke's use of comp time and overtime procedures. The Merit Commission set a hearing date to review the charges. For reasons we will discuss below, that hearing never took place. The Sheriff terminated Yahnke's employment on October 28, 2008.

Yahnke sued Kane County and Sheriff Perez, asserting that his termination was in retaliation for exercising his First Amendment rights, and that he was terminated without due process, in violation of 42 U.S.C. § 1983.² Yahnke asserted he had been terminated because of his political affiliation and because the Sheriff believed that Yahnke would oppose him in an election. In the course of discovery in a state court lawsuit between the same parties, Undersheriff Ziman was questioned about the Sheriff's reaction to learning that Yahnke had engaged in outside employment. Ziman testified:

The words I recall, when it came to disciplining Sergeant Yahnke, I went to the Sheriff and I said, You know, he was teaching, he was—we sent Internal Affairs out and they found him teaching, he's guilty of that, do you want to give him a letter, time off or whatever, I went to the Sheriff and asked him that. I don't mean to be vulgar here, but he said, I'm not giving him any time off, I'm firing him. He thinks he's going to run for Sheriff against me some day.

R. 170-3 at 67-68.³ In opposition to the defendants' motion for summary judgment, Yahnke cited this testimony as direct evidence of the Sheriff's motive for his termination, but the court did not address this evidence. Instead, the district court assumed that Yahnke established a prima facie case of First Amendment retaliation, and turned to the Sheriff's stated reasons for firing Yahnke. The court found that Perez had non-retaliatory reasons to terminate Yahnke, namely, that he had continued his secondary employment after being ordered to stop, and that he was not absolutely honest in departmental investigations of his conduct. The court then shifted the burden back to Yahnke to demonstrate that the Sheriff's stated reasons were not worthy of credence. The court concluded, again without addressing the deposition testimony of Undersheriff Ziman, that Yahnke had failed to produce evidence that the Sheriff's stated reasons were a pretext and that the true reason was Yahnke's political affiliation or ambitions. The court also concluded that Yahnke was provided all the process that was due in the course of his termination, and that Yahnke waived certain procedures that were available to him. The court therefore granted summary judgment in favor of the defendants. Yahnke appeals.

II.

On appeal, Yahnke asserts that the court erred in granting judgment to the defendants on the First Amendment claim when he presented direct evidence that the Sheriff terminated him because of his political activity. Yahnke also notes that, in shifting the burden to Yahnke to demonstrate

823 F.3d 1070

that the Sheriff's stated reasons were a pretext, the court erroneously required Yahnke to meet all three parts of a disjunctive standard that this court applied in Carter v. Chicago State Univ. , 778 F.3d 651, 659 (7th Cir. 2015). Yahnke also argues on appeal that the court erred in granting judgment on his due process claim when the court disregarded disputed issues of material fact. Finally, Yahnke asserts that the district court should have granted his motion to strike the defendants' Local Rule 56.1 statement of facts for various violations of that rule.

We review the district court's grant of summary judgment de novo , examining the record in the light most favorable to Yahnke and construing all reasonable inferences from the evidence in his favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Naficy v. Illinois Dep't of Human Servs. , 697 F.3d 504, 509 (7th Cir. 2012) ; Norman–Nunnery v. Madison Area Tech. Coll. , 625 F.3d 422, 428 (7th Cir. 2010). Summary judgment is appropriate when there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) ; Naficy , 697 F.3d at 509. Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ; McGreal v. Ostrov , 368 F.3d 657, 663 (7th Cir. 2004).

A.

“The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee's engagement in constitutionally protected political activity.” Heffernan v. City of Paterson, New Jersey , ––– U.S. ––––, 136 S.Ct. 1412, 1416, 194 L.Ed.2d 508 (2016) (citing Elrod v. Burns , 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ; and Branti v. Finkel , ...