IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEVEN YAHNKE, )

)

Plaintiff, )

) Case No. 12 C 5151

v. )

)

COUNTY OF KANE, et. al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

On June 27, 2012, Plaintiff Steven Yahnke filed a three-count Complaint against

Defendants Kane County and Kane County Sheriff Patrick Perez alleging a First Amendment

retaliation claim (Count I) and a Fourteenth Amendment due process claim (Count II).1 See 28

U.S.C. § 1331, 42 U.S.C. § 1983. In addition, Yahnke brings a retaliatory discharge claim under

the Illinois Workers’ Compensation Act pursuant to the Court’s supplemental jurisdiction (Count

III). See 28 U.S.C. § 1367(a). 

Before the Court is Defendants’ motion for summary judgment as to all counts of the

Complaint and Plaintiff’s cross-motion for partial summary judgment as to Count II brought

pursuant to Federal Rule of Civil Procedure 56(a). Plaintiff also moves for partial summary

judgment regarding Defendants’ affirmative defenses 6-12 and moves to strike Defendants’

affirmative defenses 1-5. For the following reasons, the Court grants Defendants’ summary

1

 The Court rejects Defendants’ statute of limitations argument and arguments based on

res judicata and claim preclusion for the reasons stated in the Court’s December 2012 Order. 

The Court need not address Defendants’ perfunctory, undeveloped claim-splitting argument. See

Ripberger v. Corizon, Inc., 773 F.3d 871, 879 (7th Cir. 2014) (cursory, unsupported arguments

are waived). 
judgment motion and denies Plaintiff’s partial motion for summary judgment as to Count II,

dismissing Counts I and II with prejudice. The Court dismisses Count III without prejudice

because the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law

retaliatory discharge claim. The Court further denies Plaintiff’s partial summary judgment

motion regarding affirmative defenses 6-12 and Plaintiff’s motion to strike Defendants’

affirmative defenses 1-5 as moot. Because the Court considered Plaintiff’s arguments in his

motion to strike Defendants’ Rule 56.1 Statements of Fact within the context of the challenged

facts, the Court denies Plaintiff’s motion to strike as moot. 

BACKGROUND

I. Parties

The Kane County Sheriff’s Office employed Plaintiff Steven Yahnke as a Deputy Sheriff

from August 1986 until Defendant Sheriff Patrick Perez terminated his employment on October

28, 2008. (R. 150, Pl.’s Rule 56.1(a) Stmt. Facts ¶¶ 3, 5; R. 148, Defs.’ Rule 56.1(a) Stmt. Facts

¶ 1.) Defendant Kane County remains a party in this lawsuit as an indemnitor to the Sheriff of

Kane County. (Pl.’s Stmt. Facts ¶ 4.) Defendant Sheriff Perez was the Kane County Sheriff

from December 2006 through November 2014. (Id. ¶ 5.) Yahnke, along with other sergeants

and patrol officers employed by the Kane County Sheriff’s Office, were members of the

Policeman’s Benevolent Labor Committee (the “Union”). (Defs.’ Stmt. Facts ¶ 75.) 

II. 2006 Election for Sheriff of Kane County

After the former Kane County Sheriff Ken Ramsey decided to resign in 2006, Sheriff

Perez, who was then a Kane County Deputy Sheriff, decided that he was going to run for Kane

County Sheriff. (R. 148-8, Defs.’ Ex. 8, Ramsey Dep., at 5; R. 148-12, Defs.’ Ex. 12, Perez

2
Dep., at 114-15.) At that time, Yahnke told several people that he intended to run for Kane

County Sheriff, as well, and asked certain individuals about becoming his campaign manager

and raising funds. (R. 169, Pl.’s Rule 56.1(b)(3)(A) Resp. ¶ 20.) Eventually, Yahnke decided

not to run for office and Sheriff Perez defeated the Republican candidate Kevin Williams, whom

Yahnke supported. (Id.; R. 148-7, Williams Aff. ¶ 2; R. 148-2, Defs.’ Ex. 2, 10/15/08 grievance;

Perez Dep., at 7.) Yahnke maintains that he had political aspirations to run for Kane County

Sheriff and believes that Sheriff Perez terminated his employment because Sheriff Perez thought

Yahnke would run against him in the future. (Defs.’ Stmt. Facts ¶ 19.) 

III. OPS Investigation into Yahnke’s Secondary Employment

In 2006, former Sheriff Ramsey granted Yahnke permission to work secondary

employment as the Chief of Police for the small municipality of Maple Park, Illinois, on a trial

basis, although Sheriff Ramsey had denied Yahnke’s earlier requests to do so in 2003 and 2004

due to a potential conflict of interest. (Defs.’ Stmt. Facts ¶ 33; Ramsey Dep., at 8-12.) On

November 6, 2007, Undersheriff Stephen Ziman ordered Yahnke to cease any and all secondary

employment, including working as the part-time Chief of Police in Maple Park, because Yahnke

was on temporary total disability. (Id. ¶ 34, 35.) In the meantime, Sheriff Perez asked the Kane

County State’s Attorney’s Office for a legal opinion as to whether the Office of Chief of Police

of Maple Park was an incompatible position with the position of Kane County Deputy Sheriff or

whether it presented a conflict of interest, after which an Assistant Kane County State’s Attorney

advised Sheriff Perez that it was incompatible and a conflict of interest. (Id. ¶¶ 37, 38.) On

November 27, 2007, Sheriff Perez permanently revoked Yahnke’s authority to act as Chief of

Police of Maple Park. (Id. ¶ 38.) 

3
Concerned that Yahnke was continuing to work for Maple Park after the Sheriff and

Undersheriff directed him not to, the Sheriff’s Office opened an Office of Professional Standards

(“OPS”) investigation into Yahnke’s conduct. (Id. ¶ 57; R. 148-30, Defs.’ Ex. 30, 9/2/08 OPS

interview; Defs.’ Exs. 31, 32, Collins’ Rep.) In investigating Yahnke’s conduct, the OPS

investigator uncovered business and public records that Yahnke had continued to work as the

Chief of Police for Maple Park after November 2007. (Defs.’ Stmt. Facts ¶¶ 43, 44, 46, 50.) On

September 2, 2008, the OPS investigator conducted Yahnke’s interview regarding this

investigation, at which time Yahnke’s Union attorney and Union representative were present. 

(Id. ¶ 57; Defs.’ Ex. 30, 9/2/08 OPS inter., at 1.) After the September 2008 investigative

interview, the OPS investigator prepared reports setting forth the instances in which the

investigator concluded that Yahnke had acted as the Chief of Police for Maple Park after

November 2007. (Id. ¶¶ 58, 59.) 

IV. Yahnke’s Termination

Pursuant to the Kane County Sheriff’s Merit Commission Rules, the Sheriff’s Office may

file charges with the Merit Commission seeking removal of any employee for cause. (Pl.’s Stmt.

Facts ¶ 8.) On October 7, 2008, Sheriff Perez sent correspondence to Yahnke attaching his

written complaints that he had filed with the Merit Commission. (Id. ¶ 16.) Sheriff Perez’s

October 7, 2008, letter specifically notified Yahnke that he was recommending that the Merit

Commission discharge Yahnke’s employment based on his failure to display absolute honesty in

regard to the OPS investigative interview of September 2, 2008, and for failing to follow

Undersheriff Ziman’s and Sheriff Perez’s November 2007 orders to stop outside, secondary

employment. (R. 163, Defs.’ Rule 56.1(b)(3)(c) Stmt. Add’l Facts ¶ 1.) Also on October 7,

4
2008, Sheriff Perez notified Yahnke that he filed a complaint with the Merit Commission to

discharge Yahnke based on his failure to display absolute honesty regarding an OPS

investigation into his conduct in relation to comp time and overtime procedures. (Defs.’ Stmt.

Add’l Facts ¶ 2.) On October 15, 2008, the Merit Commission sent a letter to Yahnke advising

him that Sheriff Perez had filed copies of the charges against him in which Sheriff Perez

requested Yahnke’s discharge and removal as an employee. (Id. ¶ 3.) In addition, the letter

informed Yahnke that the Merit Commission had scheduled an October 27, 2008, hearing to

review these charges. (Id.) The parties do no dispute that the October 27, 2008, hearing never

took place. (Pl.’s Stmt. Facts ¶¶ 33, 34.) Instead, Sheriff Perez terminated Yahnke’s

employment on October 28, 2008. (Id. ¶ 19; Defs.’ Stmt. Facts ¶ 1.)

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In determining summary judgment

motions, “facts must be viewed in the light most favorable to the nonmoving party only if there

is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167

L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that

there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary

judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine

5
issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted). A court’s “job when assessing a

summary judgment motion is not to weigh evidence, make credibility determinations, resolve

factual disputes and swearing contests, or decide which inferences to draw from the facts.” 

Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014).2

ANALYSIS

I. First Amendment Claim—Count I

In Count I of his Complaint, Yahnke brings a First Amendment retaliation claim in the

context of his public employment with the Kane County Sheriff’s Office. To establish a prima

facie case of First Amendment retaliation, a public employee must show that: (1) his speech was

constitutionally protected; (2) he suffered a deprivation as a result of his protected speech that

was sufficiently adverse to deter the exercise of free speech; and (3) his speech was a substantial

or motivating factor in the employer’s decision. See Graber v. Clarke, 763 F.3d 888, 894-95

(7th Cir. 2014); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012). If the employee

establishes a prima facie case, the burden shifts to the employer show that other factors

influenced the decision, namely, that the decision would have been made absent the protected

speech. See Greene v. Doruff, 660 F.3d 975, 978-79 (7th Cir. 2011) (citing Mt. Healthy City

Sch. Dist. Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977));

Fleishman v. Continental Cas. Co., 698 F.3d 598, 604 (7th Cir. 2012) (“constitutional claims,

2

 Yahnke’s argument that Sheriff Perez is not a credible witness is of no consequence at

summary judgment. See Williams v. City of Chicago, 733 F.3d 749, 752 (7th Cir. 2013)

(“Neither we nor the district court can resolve issues of credibility when deciding a motion for

summary judgment or an appeal from its grant.”).

6
such as First Amendment retaliation cases, continue to proceed under the Mt. Healthy

burden-shifting framework.”). In other words, “the defendant may then rebut that evidence by

demonstrating that ‘the harm would have occurred anyway,’ even without the protected

conduct.” Peele v. Burch, 722 F.3d 956, 960 (7th Cir. 2013) (citation omitted). “If the

defendant fails to carry that burden, the inference is that ‘but for’ causation (that is, a necessary

condition) has been shown: the plaintiff would not have been harmed had his rights not been

violated by the defendant.” Greene, 660 F.3d at 979. On the other hand, if the defendant

presents evidence of a legally permissible, non-political reason for its decision, the employee

must then show that the defendant’s stated reason was pretextual. See Thayer v. Chiczewski, 705

F.3d 237, 252 (7th Cir. 2012); Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir. 2011). “[T]his

means a plaintiff must produce evidence upon which a rational finder of fact could infer that the

defendant’s proffered reason is a lie.” Zellner, 639 F.3d at 379; see also Kidwell, 679 F.3d at

969 (pretext is “a dishonest explanation, a lie rather than an oddity or an error”) (citation

omitted). 

Assuming that Yahnke has established a prima facie case of First Amendment retaliation,

the Court turns to the Sheriff’s argument that he recommended Yahnke’s discharge to the Merit

Commission for a permissible, non-political reason. Specifically, the Sheriff presents evidence

that he recommended Yahnke’s termination to the Merit Commission for violating Kane County

Sheriff’s Department General Order 92-02, Regulation 07(e), requiring that all personnel be

absolutely honest in all department dealings. In particular, the Sheriff asserts that Yahnke was

not absolutely honest when the OPS investigator interviewed him regarding his employment as

the Chief of Police of Maple Park, as well as in a March 19, 2008, email to Undersheriff Ziman

7
in which Yahnke represented that he had been compliant with the November 2007 order to cease

all secondary employment, including acting as the Chief of Police for Maple Park. (Defs.’ Stmt.

Facts ¶¶ 49, 56-59.) At Yahnke’s September 2, 2008, investigative interview, the OPS

investigator asked Yahnke about several incidences pertaining to Yahnke’s continued work for

Maple Park after November 2007, as reflected by February 2008 Maple Park Police Committee

meeting minutes and March and April 2008 Maple Park Board of Trustees meeting minutes. 

(Defs.’ Stmt. Facts ¶¶ 44, 46, 50, 56-59.) More specifically, the minutes of the February 21,

2008, Maple Park Police Committee meeting reveal that “Chief Yahnke” presented a change to

the Maple Park police budget. (Id. ¶ 44.) Yahnke’s response to the OPS investigator’s inquiry

about these meeting minutes at his September 2008 investigative interview was that it was

actually Officer Thomas Blincoe, the officer in charge, who presented the budget, although

Yahnke did not specifically deny that he was acting as the Chief of Police, but instead stated that

“I was primarily there to answer questions about the budget.” (Defs.’ Ex. 30, 9/2/08 OPS inter.,

at 17-20.) Also, the OPS investigator relied on other evidence, including the March 4, 2008,

Village of Maple Park Trustee meeting minutes in which the trustees discussed Yahnke’s

position “with the Sheriff” stating that “things are not looking really good for Chief Yahnke right

now” in the context of Yahnke’s contractual obligations with Maple Park. (Id. ¶ 46.) In

addition, when the OPS investigator asked Yahnke about an April 24, 2008, Maple Park police

committee meeting at which Yahnke advised the committee that surplus guns from the federal

government were donated to Maple Park, Yahnke clarified that he brought up the topic of the

donated guns, but that it was not a “presentation.” (Id. at 32-35.) Moreover, other evidence of

Yahnke’s continued work for Maple Park includes a February 2008 article from the local paper

8
newspaper, the Elburn Herald, reporting that Chief of Police Yahnke stated that the bars in

Maple Park were complying with the recent smoking ban. (Id. ¶ 43.) Evidence in the record

also reveals that Yahnke’s misstatements and denials at the September 2, 2008, investigative

interview formed the basis of Sheriff Perez’s conclusion that Yahnke was not absolutely honest

in all department dealings. (Defs.’ Stmt. Add’l Facts ¶ 1.)

Because Sheriff Perez has produced evidence that he would have made the same decision

in the absence of Yahnke’s political ambitions, desire to run for Kane County Sheriff, or his

support of Sheriff Perez’s opponent in the 2006 election, “the burden shifts back to the plaintiff

to demonstrate that the proffered reason was pretextual and that the real reason was retaliatory

animus.” Thayer, 705 F.3d at 252. “Showing pretext requires ‘[p]roof that the defendant’s

explanation is unworthy of credence.’” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th

Cir. 2008) (citations omitted). Id. (citations omitted). To establish that the Sheriff’s reason for

discharging him is not worthy of credence, Yahnke must show that: (1) the Sheriff’s

justification has no basis in fact; (2) the reason is insufficient to warrant discharge; and (3) the

justification is not the real reason for his discharge. See Carter v. Chicago State Univ., 778 F.3d

651, 659 (7th Cir. 2015); Vukadinovich v. Board of Sch. Trs. of No. Newton Sch. Corp., 278 F.3d

693, 700 (7th Cir. 2002). 

Yahnke first argues that the Sheriff’s reason lacks a factual basis arguing that “each and

every one of Defendant’s alleged uncontested material facts relating to Maple Park [is] either

contested by Plaintiff or not relevant to the inquiry at hand.” To clarify, Yahnke challenges

numerous documents set forth by the Sheriff as hearsay, although many of these documents are

excepted under the business records exception and public records exception, including the Maple

9
Park Police Committee meeting minutes and the Village of Maple Park Trustee meeting minutes. 

See Fed.R.Evid. 803(6), 803(8). 

Further, Yahnke argues that other documents supporting the Sheriff’s Rule Local Rule

56.1 Statements of Fact lack proper foundation, but fails to recognize that, even it this is true, the

Court can take judicial notice of public records and historic facts. See Papasan v. Allain, 478

U.S. 265, 268 n. 1, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Here, the Court takes judicial notice

of the public records discussed above, including the Maple Park Police Committee minutes and

the Maple Park Trustee meeting minutes. See Weiler v. Village of Oak Lawn, ___ F.Supp.3d

___, 2015 WL 1538498, at *5 n.2 (N.D. Ill. Mar. 31, 2015) (taking judicial notice of municipal

ordinances and meeting minutes). In addition, several of the meeting minutes contain Yahnke’s

own statements regarding his work, and thus contain admissible statements of a party-opponent. 

See Fed.R.Evid. 801(d)(2)(A). The Court also takes judicial notice of an Elburn Herald

newspaper article, see Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012), which

is self-authenticating. See Castilho de Oliveira v. Holder, 564 F.3d 892, 897 (7th Cir. 2009)

(citing Fed.R.Evid. 902(6)). While the newspaper article is hearsay and the Court cannot

consider it for the truth of the matters asserted in the article, the Court can consider it as notice to

Sheriff Perez. See, e.g., Young v. County of Cook, 616 F.Supp.2d 834, 844 (N.D. Ill. 2009). 

Sheriff Perez was aware of the February 14, 2008, Elburn Herald newspaper article because the

OPS investigator included it in his August 12, 2008, report entitled “Possible Acts of

Insubordination/Failure to Display Absolute Honest” and in his September 2, 2008, report

entitled “Investigative Interview.” (R. 148-31, 148-32, Defs.’ Exs. 31, 32.) In fact, when

questioned about this article at the September 2, 2008, OPS investigative interview, Yahnke

10
admitted that he made the statements to the newspaper reporter in his capacity as Chief of Police

of Maple Park, which is a Rule 801(d)(2)(A) admission by a party-opponent. (Defs.’ Ex. 30,

9/2/08 OPS inter., at 15-16.)

Next, looking to whether the Sheriff’s justifications are insufficient to warrant Yahnke’s

discharge and viewing the facts and all reasonable inferences in Yahnke’s favor, by failing to

follow Sheriff Perez’s and Undersheriff Ziman’s directive to stop his secondary employment,

Yahnke’s conduct amounts to insubordination. See Vukadinovich, 278 F.3d at 699 (“we have

consistently held that insubordination constitutes a legitimate justification for an adverse

employment action”). In addition, Yahnke’s statements at his OPS interview in September 2008

and in his March 2008 email to Undersheriff Ziman that he was not working for Maple Park

sufficiently support a violation of Kane County Sheriff’s Department General Order 92-02,

Regulation 07(e), requiring that all personnel be absolutely honest in all department dealings.

Last, Yahnke criticizes the OPS investigation into his secondary employment, pointing

out that the OPS investigator did not interview numerous Village of Maple Park employees,

including the mayor or other police officers. Yahnke also takes issue with the fact that the OPS

investigator knew that Officer Thomas Blincoe was in charge of the Maple Park Police

Department starting in November 2007. The fact that Officer Blincoe was officially “in charge”

of the Maple Park Police Department does not refute the evidence in the record that Yahnke

continued to work for the Maple Park Police Department after November 2007 in some

capacity–

keeping in mind that Undersheriff Ziman had directed Yahnke to cease any and all secondary

employment, not just his employment as Maple Park’s Chief of Police. Moreover, Yahnke’s

11
argument that the OPS investigation was flawed and that Sheriff Perez also investigated his

alleged misconduct does not establish that the Sheriff’s justification for recommending his

discharge was a lie because the relevant question is not whether the reasons for terminating

Yahnke’s employment were inaccurate or unfair, but whether Sheriff Perez sincerely believed

his explanation for recommending Yahnke’s termination to the Merit Commission. See

Hobgood v. Illinois Gaming Board, 731 F.3d 635, 645-46 (7th Cir. 2013). At his deposition,

Sheriff Perez explained why he believed Yahnke continued to act as Maple Park’s Chief of

Police based on evidence that he had gathered regarding a May 2008 Maple Park Board of

Trustees meeting at which Yahnke attended and discussed police coverage for the Memorial Day

2008 weekend. (R. 148-12, Perez Dep., at 379, 383-87.) In short, the alleged flaws in the OPS

investigation and Sheriff Perez’s personal investigation do not support the conclusion that

Sheriff Perez’s reason for terminating Yahnke’s employment was a lie or that the Sheriff’s

reason was unreasonable. See id. at 646; Kidwell, 679 F.3d at 969. On a final note, Yahnke’s

March 19, 2008, email to Undersheriff Ziman states that Yahnke would be leaving his

employment at the Kane County Sheriff’s Office in 2013, which further supports the conclusion

that a reasonable jury would not infer that the real reason Sheriff Perez recommended Yahnke’s

discharge was Yahnke’s desire to run for Kane County Sheriff in the future. (Defs.’ Stmt. Facts

¶ 49; R. 148-23, Defs.’ Ex. 23, Yahnke 3/19/08, email.) As such, Yahnke has failed to produce

evidence upon which a rational finder of fact could infer that Sheriff Perez’s proffered reason,

namely, Yahnke’s continued secondary employment with Maple Park, is a lie and that Sheriff

Perez’s real reason for recommending his discharge was politically motivated. See

Vukadinovich, 278 F.3d at 700 (subjective belief that action was retaliatory and the proffered

12
reason pretext, does not create a genuine issue of material fact for trial). 

Because Yahnke has not presented sufficient evidence creating a genuine factual dispute

for trial that the Sheriff’s proffered reason for his termination was pretextual and that the real

reason for Yahnke’s discharge was his political affiliation or ambitions, the Court grants

Defendants’ summary judgment as to Yahnke’s First Amendment claim in Count I and dismisses

Count I with prejudice.3 

III. Fourteenth Amendment Procedural Due Process Claim — Count II

In Count II of his Complaint, Yahnke alleges that he had a protected property interest in

his continued employment with Kane County, and that prior to his termination, he was not

afforded a hearing in front of the Merit Commission or the opportunity for independent

arbitration. Due process requires “the opportunity to be heard at a meaningful time and in a

meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18

(1976). There are two steps in analyzing Yahnke’s procedural due process claim: (1) whether

the Sheriff deprived him of a protected property interest; and (2) what process is due under the

circumstances. See Bryn Mawr Care, Inc. v. Sebelius, 749 F.3d 592, 598 (7th Cir. 2014); Leavell

v. Illinois Dep’t Natural Res., 600 F.3d 798, 804 (7th Cir. 2010). When determining what

process is due in the context of unauthorized deprivations of a protected property right, if there is

an adequate post-deprivation state law remedy available, this remedy is all the process a plaintiff

3

 Because Yahnke has failed to establish that the Sheriff’s reason for recommending his

termination based on his statements made in regard to his secondary employment is pretextual,

the Court need not address the Sheriff’s second reason for recommending Yahnke’s discharge, 

cf. Simpson v. Beaver Dam Cmty. Hosp., Inc., 780 F.3d 784, 798 (7th Cir. 2015), especially

because Yahnke makes the same, unsuccessful arguments he made regarding the Sheriff’s first

reason for recommending his discharge.

13
is due. See Michalowicz v. Village of Bedford Park, 528 F.3d 530, 535 (7th Cir. 2008).4

The parties do not dispute that Yahnke had a protected property interest in his continued

employment with the Kane County Sheriff’s Office pursuant to the relevant Collective

Bargaining Agreement (“CBA”) and the Kane County Sheriff’s Merit Commission Rules and

Regulations that made Yahnke a tenured deputy subject to the Merit Commission. (Pl.’s Stmt.

Facts ¶¶ 6-10.) Also, the parties do not dispute that Sheriff Perez terminated Yahnke’s

employment without a hearing. (Id. ¶ 33.) Instead, the Sheriff argues that Yahnke decided to

pursue arbitration, and therefore, waived his right to a hearing in front of the Merit Commission. 

The Court turns to the facts underlying the Sheriff’s argument.

It is undisputed that under the Merit Commission Rules, a hearing shall commence within

30 days after the Sheriff files a written complaint seeking removal of an employee with the Merit

Commission unless the employee waives the 30 day requirement or elects arbitration instead of a

hearing. (Id. ¶¶ 10-11; R. 150-5, Pl.’s Ex. E, Kane County Sheriff’s Merit Comm., Rules &

Regs., Art. VIII, § 2(B).) On October 15, 2008, the Merit Commission sent a letter to Yahnke

advising him that it had received copies of Sheriff Perez’s charges against him and the Sheriff’s

request that the Merit Commission terminate Yahnke’s employment. (Defs.’ Stmt. Add’l Facts ¶

3.) The Merit Commission’s October 15, 2008, letter also notified Yahnke that it had scheduled

4

 Yahnke’s argument that public employers must always provide their employees with a

pre-deprivation hearing is misplaced. See Swank v. Smart, 898 F.2d 1247, 1256 (7th Cir. 1990)

(“Only if there is no provision for a post-termination hearing must the pre-termination hearing

provide all the procedural safeguards to which due process entitles a tenured public employee.”);

see also Chaney v. Suburban Bus Div. of Regional Transp. Auth., 52 F.3d 623, 628 (7th Cir.

1995) (“grievance procedures created by collective bargaining agreements can satisfy the

requirement of due process”) (citation omitted).

14
a hearing on Sheriff Perez’s charges against him for October 27, 2008. (Id.) Also on October

15, 2008, the Union filed a grievance on behalf of Yahnke requesting a stay of discipline until

the outcome of his grievance in arbitration that addressed the central issue of the OPS

investigation. (Pl.’s Stmt. Facts ¶ 17.) It is undisputed that there was no hearing on the October

15, 2008, grievance. (Id. ¶ 18.) Instead, it is undisputed that in an October 22, 2008, letter to the

Merit Commission, Yahnke’s Union lawyer stated that Yahnke wished to arbitrate his October

15, 2008, grievance. (Id. ¶ 24.) Undersheriff Ziman and Sheriff Perez, however, were under the

impression that Yahnke intended to arbitrate the Sheriff’s recommendation to terminate

Yahnke’s employment, as well as the October 15, 2008, grievance. (Id. ¶¶ 20, 24.) Indeed, in an

October 28, 2008, Agreed Order before the Kane County Sheriff’s Merit Commission, Yahnke

waived his right to proceed before the Merit Commission to determine the validity behind the

termination charges that Sheriff Perez filed against him and elected to proceed to arbitration

under the CBA. (Defs.’ Stmt. Add’l Facts ¶ 5.)5

 The Agreed Order also stated that due to

Yahnke’s election to pursue arbitration, Sheriff Perez withdrew his charges against Yahnke and

terminated all proceedings before the Merit Commission. (R. 163-5, Defs.’ Ex. 5, 10/28/08,

Agreed Order.) 

Viewing the facts and all reasonable inferences in Yahnke’s favor, Sheriff Perez has

presented proof of the absence of material fact, namely, that Yahnke entered into an Agreed

Order and waived his rights to a hearing in front of the Merit Commission. Even if Yahnke had

5

 The Court takes judicial notice of the Kane County Sheriff’s Merit Commission’s

October 28, 2008, Agreed Order. See Fed.R.Evid. 201(b)(2); Radaszewski ex rel. Radaszewski v.

Maram, 383 F.3d 599, 600 (7th Cir. 2004) (taking judicial notice of administrative findings);

Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998) (judicial

notice of reports of administrative bodies proper).

15
set forth evidence creating a genuine issue of material fact that he did not waive his right to a

hearing before the Merit Commission, the Court’s inquiry does not end there. Rather, the Court

must look to the process that Yahnke was due under the circumstances. 

Breaking down Yahnke’s claim in simple terms, he argues that a required procedure was

in place pursuant to the Merit Commission Rules and the CBA regarding his discharge and that

Sheriff Perez did not follow these required procedures. Yahnke’s claim is thus based on Sheriff

Perez’s random and unauthorized conduct. See Leavell, 600 F.3d at 806. “Because such

misconduct is inherently unpredictable, the state’s obligation under the Due Process Clause is to

provide sufficient remedies after its occurrence, rather than to prevent it from happening.” 

Michalowicz, 528 F.3d at 535. Under these circumstances, the Court must determine whether

there were adequate post-deprivation state law remedies available to Yahnke. See id. at 534. 

First, there is an adequate post-deprivation remedy pursuant to the Illinois Administrative

Review Act, 735 ILCS 5/301, et seq., under which Yahnke could have filed a complaint in state

court challenging the decision to terminate his employment if it qualified as the Merit

Commission’s administrative decision. See, e.g., Rodriguez v. Sheriff’s Merit Comm’n of Kane

County, 218 Ill.2d 342, 349-50, 843 N.E.2d 379, 381, 300 Ill.Dec. 121, 123 (Ill. 2006). In the

alternative, because there is evidence in the record that Yahnke decided to arbitrate his

termination pursuant to the CBA, he could have moved to compel arbitration in connection with

his termination like he did in regard to his October 15, 2008, grievance. See Policemen’s

Benevolent Labor Cmte. v. County of Kane, et al., 2012 Ill.App. Unpub. LEXIS 2006, 2012 Ill

App (2d) 12009-U (2d Dist. Aug. 17, 2012) (unpublished). In fact, Yahnke did attempt to

compel arbitration regarding the Sheriff’s termination of his employment, but the Illinois

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Appellate Court concluded that Yahnke had failed to properly initiate the grievance process

pursuant to the CBA in the first instance. See id. at 2012 Ill App (2d) 12009-U ¶¶ 16, 17. In

addition, Yahnke filed a later state court complaint to compel arbitration regarding his

termination. (R. 181-6, Pl.’s Ex. F, Mot. Consolidate.) As Yahnke explains, after discovery in

the state court matter, he moved to voluntarily dismiss the complaint that the Kane County

Circuit Court granted on April 9, 2012. 

Nonetheless, it is not enough that Yahnke did or did not avail himself of a state law

remedy, he must also show that the state law post-deprivation remedy was inadequate. See

Bettendorf v. St. Croix County, 631 F.3d 421, 427 (7th Cir. 2011) (citing Hudson v. Palmer, 468

U.S. 517, 539, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). A state law remedy is inadequate if it is

meaningless or nonexistent. See Michalowicz, 528 F.3d at 535 (quoting Easter House v. Felder,

910 F.2d 1387, 1406 (7th Cir. 1990) (en banc)). Here, Yahnke has failed to argue, let alone

establish, that the applicable state law remedies are meaningless. Instead, as the Illinois

Appellate Court determined, Yahnke failed to properly file a grievance concerning his

termination in the first instance. It is well-settled that federal courts “do not allow a plaintiff to

claim that she was denied due process just because she chose not to pursue remedies that were

adequate.” Veterans Legal Def. Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003). Therefore,

Yahnke’s due process claim fails because adequate state law remedies provided the process he

was due under the circumstances. See Simmons v. Gillespie, 712 F.3d 1041, 1044 (7th Cir.

2013) (“the federal entitlement is to process, not to a favorable outcome”). The Court therefore

grants Defendants’ summary judgment motion and denies Plaintiff’s partial summary judgment

motion as to Count II and dismisses Count II with prejudice.

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III. Illinois Retaliatory Discharge Claim — Count III

Yahnke’s remaining claim in this lawsuit is his Illinois retaliatory discharge claim under

the Illinois Workers’ Compensation Act, as alleged in Count III of the Complaint. See Clemons

v. Mech. Devices Co., 184 Ill.2d 328, 704 N.E.2d 403, 235 Ill.Dec. 54 (1998). Because the Court

is dismissing, with prejudice, Yahnke’s claims over which the Court has original jurisdiction,

namely, his First Amendment retaliation claim and Fourteenth Amendment due process claim,

the Court, in its discretion, declines to exercise supplemental jurisdiction over his remaining

state law claim. See 28 U.S.C. § 1367(c).

As the Seventh Circuit instructs, “[t]he supplemental-jurisdiction statute provides that the

district court ‘may decline to exercise supplemental jurisdiction’ over state-law claims if the

court ‘has dismissed all claims over which it has original jurisdiction.’” RWJ Mgmt. Co., Inc. v.

BP Prods. N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012) (quoting 28 U.S.C. § 1367(c)(3)).

Although the decision to relinquish supplemental jurisdiction is within the district court’s broad

discretion, “[w]hen all federal claims in a suit in federal court are dismissed before trial, the

presumption is that the court will relinquish federal jurisdiction over any supplemental state-law

claims.” RWJ Mgmt. Co., 672 F.3d at 479 (citation omitted).

Because the Court declines to exercise supplemental jurisdiction Yahnke’s retaliatory

discharge claim, the Court grants Defendants’ summary judgment as to Count III and dismisses

Count III without prejudice.

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CONCLUSION

For these reasons, the Court grants Defendants’ motion for summary judgment [146],

denies Plaintiff’s motion for partial summary judgment [147], and dismisses Counts I and II with

prejudice and Count III without prejudice. The Court denies Plaintiff’s motions to strike as moot

[152, 164].

Dated: April 30, 2015

ENTERED

______________________________

AMY J. ST. EVE

United States District Court Judge

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