unions); Elk Grove Firefighters v. Willis 400.F. Supp. 1097 (N.D. Ill. 1976) (same as York

County), aff'd, 539 F.2d 714 (7th Cir. 1976) aary disposition). These cases establish that a

municipality could flatly prohibit supervisory personnel in the fire department from participating

in the same union as the rank and file, as the interest in an efficient fire department has been
found to outweigh the firefighters First Amendment associational rights. See York County

Firefighters Ass’n, 589 F.2d at 776-77. Indee he very same fire department that employs

Plaintiffs formerly had this exact prohibition supervisory personnel participating in the same

union as the rank and file in place. See Elk e Firefighters v. Willis, 400 F. Supp. at 1103.

In this case, however, the Defendants haye neither asserted nor established that the

promotions Plaintiffs sought would elevate.them.to the level of a supervisor, though they have

had ample opportunity to do so. This case ha eeded through discovery to summary

judgment without any indication from the De ants that the Plaintiffs were set to become
supervisors. When asked during the final pi ettial conference whether they sought to establish
that Plaintiffs would become supervisors, Defendants were only able to highlight a footnote in
their reply brief supporting summary judgme (Def. Rep. to Pl. Mem. in Opp. Def. Mot. Sum.
J. at 5,n.3) This is a patently insufficient me to establish what could be a dispositive fact.
The Court will not assume facts about the or; tional structure of the Elk Grove Village Fire

Department. As the Seventh Circuit recently declared, “First Amendment rights cannot be

(rampled based on hypothetical concerns that ernmental employer never expressed.”

Gustafson v, Jones, 290 F.3d 895, 910 (7th: 02).
Thus, in the “specific context of the. ¢ Saucier v. Katz, 533 U.S. at 201, Defendants’

position is that Plaintiffs’ union activities ot a substantial motivating factor in the



t clear from the Court’s summary judgment

Saucier v. Katz, 533 U.S. at 202. Although it ws
opinion, the answer to this question for these ; ndants is yes, it would be clear to a reasonable
officer that failing to promote firefighters bec of their union activities and speech relating to
union issues is unlawful.
For the purposes of this motion (whichjs.é continuation of the Defendants’ summary
judgment motions), the Court makes reasonab! rences in favor of the Plaintiffs. With this
procedural posture, the Court must assume thatthe. Defendants failed to promote Plaintiffs

because of their union activities and their spec union issues. As to that motivation, the law

is abundantly clear. “It has been well established for many years in this Circuit that a public

employer may not retaliate against an employee, who exercises his First Amendment speech

rights.” Gustafson v. Jones, 117 F.3d 1015,

7th Cir. 1997).

There have been several published cas in this circuit and elsewhere, that deal directly

See Int’! Ass’n of Firefighters, Local No.

with the First Amendment and firefighters’

Cir, 2000) (finding a rule prohibiting supervisory

3898 v. City of Kansas City, 220 F.3d 969 (81

firefighters from joining a separately organi ‘on that is affiliated with the union of the rank

and file violates the First Amendment); Bal of Milwaukee, 133 F.3d 1036 (7th Cir.
1998) (addressing complaint that firefighter unlawfully retaliated against for failure to pay

union dues); Messman v. Helmke, 133 F.3d 1042 (7th Cir. 1998) (upholding union-based

restriction on firefighters participating in oths firefighting duties elsewhere when they are not

working); York County Firefighters Ass’n v.C ounty of York, 589 F.2d 775 (4th Cir. 1978)

(addressing complaint that firefighters were deprived of First Amendment freedom of association

by local regulations that prevented superviso! ‘sonnel from membership in rank and file



promotion decision. It is clearly established law.that a public employer may not base promotion

decisions on their employees exercise of Fi

sndment rights. See Rutan v. Republican Party
of Ilingis, 497 U.S. 62, 72 (1990) (“the govet tt may not... deny a benefit [such as
promotion] to a person because of his constitutionally protected speech or associations . . . .”);
Gustafson v. Jones, 117 F.3d at 1021. Therefore, Defendants are not entitled to qualified

immunity on Plaintiffs claim.

Enter:

Dhl Nt

id H. Coar
ited States District Judge

Dated: January 21, 2003



sia

Minute Order Form (06/97)

United States District ¢

Northern District of Ilinois

Name of As:

Sitting Judge if Other
than Assigned Judge

David H. Coar

CASE NUMBER 01 C 8504 DATE 1/21/2003
CASE Kevin Quinn, et al. vs. Vi f Elk Grove Board of Fire and Police Commissioners
TITLE

[In the following box (a) indicate the pa
of the motion being presented.)

qu)

MOTION:

DOCKET ENTRY:

(o) o Filed motion of [ use listing in “Motion”.

Q) oO Brief in support of motion due

(3) Oo Answer brief to motion due. . Reply to apswer briefdue____

@ a Ruling/Hearing on set for

(5) a Status hearing[held/continued to] [set foy for] on set for at

(6) o Pretrial conference[held/continued to] [setfor/ré-set for]on__—esetfor__at__

(7) Oo Trial{set for/re-set for]on ss at__. a

(8) im [Bench/Jury trial] [Hearing] held/continued,to..... at

(9) Oo This case is dismissed [with/without] prej ad without costs[by/agreement/pursuant to]
QFRCP4(m) OLocal Rule 41.1 OF (a1) 1 FRCP41(a)(2).

CO _| [Other docket entry] For the reasoi én in the attached memorandum opinion, Defendants

Motion to Alter or Amend Judgment is grant the extent it requests a clarification on the Court’s prior
ted 101 q! P'
requests that Defendants be granted qualified immunity,

ruling on summary judgment. To the extent 1
the motion is denied.

| [For further detail see order attached to the original minute order.

asd Cee.

No notices required, advised in open court
No notices required

Notices mailed by jutdge’s staff,

Notified counsel by telephone,

Dockeling (0 tial notices.

Mail AO 450 form,

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

jarite

Document
Number.
number of notices.

JAN 2 2 2003

date docketed

|

dave hyifed notice

nailing deputy initials



IN THE UNITED SLATES DISTRICT COURT Ober.
FOR THE NORTHERN, DISTRICT OF ILLINOIS JAN 2 ae
EASTERN DIVISION ® 2005
KEVIN QUINN, HOWARD HALL, and —
BRIAN McVEIGH

Plaintiffs,

No. 01 C 8504

HONORABLE DAVID H. COAR

eco

VILLAGE OF ELK GROVE BOARD OF

FIRE AND POLICE COMMISSIONERS
al.

Defendants.

MEMORANDUM OP. NON AND ORDER

This case comes before the Court on] ants’ Motion to Alter or Amend Judgment or

for Other Relief pursuant to Federal Rules 9 rocedure 59(e) and 60(b). The motion is
granted to the extent that it requires a clarifi this Court’s prior ruling on the Defendants’

Motions for Summary Judgment.

The sole issue presented in Defend: fotion is whether the Defendants should receive
qualified immunity on Plaintiffs’ First Amey t retaliation claim. In evaluating the defense
of qualified immunity, the initial step is to. di e whether the facts, as alleged, would
constitute a violation of the plaintiffs consti rights. Saucier v. Katz, 533 U.S. 194, 201
(2001) (determining whether a constitutio ion is alleged “must be the initial step”). If
the facts do show a constitutional violation, rt must next examine whether the right was

clearly established “in light of the specific 0 f the case.” Id, The Supreme Court clarified



that, for this second step, “{t]he relevant, disp : inquiry in determining whether a right is
clearly established is whether it would be clear,to.a. reasonable officer that his conduct was

unlawful in the situation he confronted.” Id, at 21

It is clear from the case law, as well he Court’s summary judgment opinion
(mem. op. of 12/23/02, at 8), that Plaintiffs’ roven to a jury, make out a constitutional
violation. For the sake of clarity, the Court fly recount the analysis. In order to make out

role in the union is protected by the freedom,g ation the First Amendment affords. See,
¢.g.. Marshall v. Allen, 984 F.2d 787, 799 (it th Ci 1993) (“most of the reported cases in this
area revolve around an employee’s right t in order to express political ideas through a

union”). Their opinions about current statutes (the Fair Labor Standards Act) and pending
legislation (the firefighter promotion act) statut ere clearly protected by the freedom of
speech the First Amendment provides, as the ects involve matters of public concern. As

discussed at length in the Court’s summary judgment opinion, Plaintiffs have also offered

sufficient evidence to submit to a jury whet rotected activities were a substantial or

motivating factor in the Defendant’s decision. (Mem. Op. of 12/23/02, at 9-13)
Though Plaintiffs have satisfied the,; inquiry, the second step is often more critical

to the qualified immunity analysis. To reiterate, the question at the second step is “would it be

clear to a reasonable officer that his condt unlawful in the situation he confronted.”