Dandino v. Tieri
Dandino v. Tieri
Opinion of the Court
MEMORANDUM AND ORDER
Plaintiff Pat Dandino (Dandino) brought this action against defendants Charles Tieri (Tieri) and the Village of Steger (Village) under 42 U.S.C. § 1983 and state law. Dandino claims that his alleged patronage dismissal from the Village police force was a violation of his First and Fourteenth Amendment rights and a violation of Illinois common law on retaliatory discharge. Before us now is defendants’ motion to dismiss under Rule 12(b)(6), alleging that Dandino cannot show the element of causation, that they are protected from § 1983 liability by the doctrine of qualified immunity, and that Dandino has no cause of action for retaliatory discharge. For the reasons set forth below, defendants’ motion is granted in part and denied in part.
BACKGROUND
Since this is a motion to dismiss we accept the well-pleaded allegations in Dandino’s complaint. Land v. Chicago Truck Drivers, 25 F.3d 509, 511 (7th Cir. 1994). Dandino was hired by the Steger Police Department on November 3, 1986, as a part-time police officer. During the spring of 1993, the Village had mayoral elections in which two political parties, the active party and the reform party, had candidates-vying for the office of mayor. Dandino supported the candidate from the reform party, and contributed money to his campaign. Dandino’s support for the reform party was made known to his coworkers through discussions he had about local politics. Defendant Tieri, who was the chief of police for the Steger Police Department, allegedly supported the active party and its candidate. Soon after the Village election for mayor, the Steger Police Department had an election to determine whether the members of the police department should be represented by a union. Dandino attended meetings about possible union representation, and ultimately voted in favor of union representation in the May election.
According to Dandino, Tieri did not approve of his political associations. In May 1993, Tieri told Dandino that he “had been told to fire plaintiff for ‘getting involved in
Dandino filed a two-count complaint against Tieri and the Village. Count I, brought under 42 U.S.C. § 1983, claims that Tieri violated Dandino’s First and Fourteenth Amendment rights to freedom of speech and political association. Count II claims that Tieri and the Village are liable for retaliatory discharge under Illinois common law.
DISCUSSION
Count I: Section 1983 Action
A. Causation and Mitigation of Damages
Section 1983 actions, like all torts, require a showing of causation. Benson v. Cady, 761 F.2d 335, 339 (7th Cir. 1985). Tieri claims that Dandino cannot establish causation since the Village has repeatedly offered him the opportunity to be reinstated, and that any injury that Dandino suffered was therefore on account of his rejection of the offers of reinstatement. The Village allegedly first made this offer during a conversation between the Village president and Dandino on December 7, 1993, four days after Dandino was fired.
The offers of reinstatement, however, are not dispositive at this stage of the litigation. Whether Dandino failed to mitigate his damages is a question the trier of fact must determine when calculating damages. See Smith v. Rowe, 761 F.2d 360, 366-67 (7th Cir. 1985) (mitigation of damages in § 1983 action is a question of fact for the jury). Dandino’s failure to mitigate does not by itself render his otherwise properly pled claim inadequate. See United States v. Shriver, 989 F.2d 898, 906 (7th Cir. 1992) (questions of fact cannot be resolved on a motion to dismiss). Granted, Tieri does go a step further by claiming that had Dandino accepted the offer of reinstatement he would have no damages and thus could not show that his conduct caused any harm. We, however, cannot make this determination on a motion to dismiss. The record is not clear when Dandino became aware of the offer, and whether the offer afforded Dandino “make-whole” relief which would include back-pay. To the extent that these issues remain in doubt, it is inappropriate to dismiss Dandino’s claim. Since Dandino has alleged all that is required of him at this stage, we conclude that the § 1983 count has been properly pled.
B. Qualified Immunity
When considering a governmental actor’s individual liability under § 1983, we
The first prong of the qualified immunity analysis requires us to determine whether Tieri’s decision to fire Dandino for political reasons violated the First Amendment. In the political patronage area courts have traditionally been mindful of the conflicting interests between a government official’s need for loyal and compatible subordinates, and the First Amendment’s “legacy of protecting the individual’s freedom of association and his right to meaningfully exercise his political beliefs.” Upton v. Thompson, 930 F.2d 1209, 1213 (7th Cir. 1991), cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992). The Supreme Court has endeavored to strike a balance between these competing interests. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). In Elrod, the Court held that while the First Amendment generally protects government employees’ right of political association, an exception exists for “policymaking officials.” Elrod, 427 U.S. at 367, 96 S.Ct. at 2687. The Court reshaped the standard somewhat in Branti; there the Court held “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particularized position; rather the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. at 1295.
The Seventh Circuit has interpreted the Supreme Court’s caselaw as requiring “‘an examination of the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office,’” Upton, 930 F.2d at 1214 (quoting Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir), cert. denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985)), to determine whether “ ‘the position held by the individual authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation.’” Upton, 930 F.2d at 1214 (quoting Tomczak, 765 F.2d at 641).
The proper inquiry here is whether Dandino’s position as a part-time police officer is one in which “party affiliation is an appropriate requirement for the effective performance of the [job]”. See Branti 445 U.S. at 518, 100 S.Ct. at 1295. The Seventh Circuit has previously examined the constitutionality of patronage dismissals of law enforcement personnel. In Upton, the court held that since a sheriff has broad discretion to set policy, and that a deputy sheriff likely constitutes the core group of advisors to the sheriff, a deputy sheriff is likely to “ ‘make some decisions that actually create policy.’ ” Upton, 930 F.2d at 1215 (quoting Livas v. Petka, 711 F.2d 798, 800 (7th Cir. 1983)); see also Heideman v. Wirsing, 7 F.3d 659 (7th Cir. 1993) (same); Dimmig v. Wahl, 983 F.2d 86 (7th Cir.), cert. denied—U.S.-, 114 S.Ct. 176, 126 L.Ed.2d 135 (1993) (same). Tieri argues that Upton and its progeny are dispositive of this case.
Similarly, we cannot determine whether Dandino’s alleged First Amendment right to be free from patronage dismissal was clearly established at the end of 1993. We have no way of concluding that Dandino’s position as a part-time police officer involved the implementation of policy, without factual development by the parties. Again we refuse to speculate as to what Dandino’s exact job duties were. See Kolman, 31 F.3d at 434 (“even a qualified immunity inquiry cannot take place until the facts about the [plaintiffs position] and the plaintiff’s] roles there are put on the table”).
Count II: Retaliatory Discharge
While Illinois still maintains the general rule that an at-will employee may be discharged at any time, the Illinois Supreme Court has recognized an exception in the case of retaliatory discharge. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 564-66, 384 N.E.2d 353, 358-60 (1979). To state a cause of action for retaliatory discharge in Illinois a plaintiff must show (1) that he was discharged, (2) that the discharge was in retaliation for his activities, and (3) that it violates a clear mandate of public policy. Hartlein v. Illinois Power Co., 151 Ill.2d 142, 176 Ill.Dec. 22, 30, 601 N.E.2d 720, 728 (1992).
Since we must accept the well-pleaded allegations of Dandino’s complaint on this motion to dismiss, Caldwell v. City of Elwood, 959 F.2d 670, 672 (7th Cir. 1992), there is no question that Dandino can meet the first two prongs of the test. It is the third prong where Dandino flounders. He fails to highlight a single case allowing a cause of action for retaliatory discharge in a case involving patronage dismissal. The absence of any supporting authority dooms Dandino’s claim. The Illinois Supreme Court has repeatedly held that the tort of retaliatory discharge is a very narrow excep
CONCLUSION
For the foregoing reasons defendants’ motion to dismiss the complaint is granted in part and denied in part.
. We have jurisdiction over Count II through our supplemental jurisdiction under 28 U.S.C. § 1367.
. Tieri submits the affidavit of Louis Sherman, the Village President, who claims to have told Dandino to come to his office and that he “would straighten this matter out.”
. The Village has also moved to dismiss any claim against it under § 1983 since Dandino did not allege any plan or custom of the Village to deny him his First Amendment rights. The Supreme Court has held that such a showing must be made in official capacity actions against the governmental entity. See, Monell v. Department of Social Services of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The Village’s motion appears to be unnecessary since Dandino did not include the Village in Count I. Whatever ambiguity there is over whom Dandino was suing in Count I was resolved in Dandino’s response brief in which he unequivocally states that he is not proceeding against the Village under § 1983, but is focusing solely on Tieri’s individual liability.
. The court cited a mayor's chief of staff as an example of an obviously political position.
. In addition, the court's analysis in Upton makes clear that many factors are to be considered in these cases, such as how closely the defendant and the plaintiff must work, the degree of animosity generated by the plaintiff's lack of political support, and the degree of latitude the plaintiff has in carrying out his duties. Upton, 930 F.2d at 1215-16. While we may speculate as to the job duties of a part-time police officer in a suburban police department, such speculation would be unwarranted considering the ability of the parties to clarify the issues.
Reference
- Full Case Name
- Pat DANDINO, III v. Charles A. TIERI and Village of Steger
- Status
- Published