In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1389
C OLLEEN B AGLEY, et al.,
Plaintiffs-Appellants,
v.
R OD R. B LAGOJEVICH, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:05-cv-3156—Richard Mills, Judge.
A RGUED O CTOBER 22, 2010—D ECIDED M AY 2, 2011
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
T INDER, Circuit Judge. A group of former captains from
the Illinois Department of Corrections (IDOC) sued state
and union officials alleging that the defendants unlaw-
fully punished them for seeking to organize with a rival
union. One of the defendants is former Illinois Governor
Rod Blagojevich. Much of the litigation below, which
began in June 2005, focused on plaintiffs’ efforts to de-
pose Governor Blagojevich. After a series of motions and
2 No. 10-1389
rulings, the district court found the Governor immune
from deposition pursuant to legislative immunity and
later granted summary judgment to the Governor and
the remaining defendants. We affirm the district court’s
rulings.
I. Background
When Governor Blagojevich assumed office in Janu-
ary 2003, the state faced a $5 billion budget deficit, or 10%
of the state’s budget. A Blagojevich campaign plank
promised to reduce costs and layers of management in
state government. Thus, to reduce the budget gap and
fulfill a campaign promise, Blagojevich administration
officials required state agencies in early 2003 to find
efficiencies in their organizational structures with the
goal of saving money.
A. Blagojevich officials focus on the Illinois
Department of Corrections.
Part of the administration’s review targeted eliminating
management positions in IDOC. Governor Blagojevich’s
deputy chief of staff Julie Curry (an appellee) was re-
sponsible for about fifteen state agencies, including
IDOC. In April 2003, IDOC’s high security facilities main-
tained a twelve-level rank structure. The relevant posi-
tions up the twelve-layered chain of command were cor-
rectional officers, sergeants, lieutenants, captains, ma-
jors/chiefs of security, superintendents, and assistant
No. 10-1389 3
wardens. At about the same time, IDOC employed 217
captains, 40 majors, and 42 superintendents. Captains
performed a variety of supervisory jobs, including that of
a “shift commander.” Captains performing “shift com-
mander” duties did exactly what the title suggests—they
took command of a shift at a facility. Shift commanders
reported to the facilities’ chiefs of security or higher up
the chain of command. Facilities generally maintained
three shifts, but some facilities had more than three
captains. One facility had 28 captains, but only one
captain could command an individual shift at a time. The
following diagram represents IDOC’s command structure
at the time.
4 No. 10-1389
The American Federation of State, County and Municipal
Employees (AFSCME), Council 31 represented about
37,000 Illinois state employees, including about 10,000
IDOC employees. AFSCME contributed $125,000 to
Blagojevich’s primary campaign and $250,000 to his
general election campaign. AFSCME’s RC-6 bargaining
unit represented IDOC officers, sergeants, and other
security employees. AFSCME’s CU-500 bargaining unit
represented lieutenants. The captains were not repre-
sented. In 2000, the captains began meeting with Illinois
State Employees Association (ISEA) representatives. In
2002, ISEA initiated attempts to organize the captains.
In March 2003, AFSCME petitioned to have the captains
become part of the CU-500 bargaining unit. ISEA inter-
vened to block AFSCME and filed its own petition in
April 2003.
In early 2003, Curry began working with James Under-
wood (an appellee and IDOC personnel director starting
in February 2003) and Nancy Bounds (IDOC personnel
director but only until June 2003) to identify positions to
eliminate or consolidate, including captains, chiefs of
security, superintendents, and assistant deputy directors.
Curry believed eliminating captains consolidated IDOC
management and saved about $17 million annually.
Governor Blagojevich proposed a state budget in
March 2003 that did not fund the captain position. Yet
eliminating the captains would not happen until June 30,
2003, the day before the proposed budget became effec-
tive on July 1, 2003.
Curry told AFSCME officials in an April 17, 2003,
meeting that Governor Blagojevich would eliminate the
No. 10-1389 5
captain position. But on May 23, 2003, the Illinois General
Assembly passed a budget that included $17.3 million
in funding for the captain position. The Blagojevich
administration issued a press release on June 4, 2003,
declaring that the Governor would veto various budget
items, including funding for “Corrections’ Captains”
because he could not ask the public “to cover the cost
of middle management we just don’t need.” Governor
Blagojevich formally vetoed the line item funding the
captain position on June 4, 2003. IDOC eliminated the
position on July 31, 2003.
But the process of eliminating the captain position
began earlier. A plan for layoffs, dubbed the June 30
Layoff Plan, anticipated reassigning the captains’ duties
to other positions up and down the chain of command.
This plan anticipated giving captains the following
options: demotion to another position in state govern-
ment; demotion to correctional officer within their
current facility; or being laid off. Meanwhile, AFSCME
opposed offering the captains lower-ranking IDOC posi-
tions, particularly that of lieutenant (right below captain).
Earlier that year, IDOC received permission to fill 122
lieutenant spots. AFSCME officials made it quite public
that IDOC should not offer the position “to people
outside the bargaining unit” and that 700-plus AFSCME
members had passed an exam making them eligible for
the position. A newspaper article quoted the Governor
saying that AFSCME appeared “concerned that most of
these captains happen to be Republicans and that they
shouldn’t be hired. . . . They should be able to reapply
for other positions in state government and we don’t
6 No. 10-1389
care what political party they come from.” AFSCME filed
a grievance on May 28, 2003, complaining that IDOC
violated the collective bargaining agreement (CBA) by
offering lieutenant spots to the former captains.
AFSCME’s complaint failed in arbitration.
Meanwhile, eliminating the captains did not make
the work performed by the captains go away. On June 17,
2003, IDOC created a new position called “shift com-
mander.” Shift commanders performed at least one of the
functions carried out by captains: they commanded shifts.
Employees with the title major/chief of security and
superintendent (the two positions above captain) took
some of the shift commander positions and IDOC pro-
moted 55 of the former captains to fill the remaining spots.
The following diagram represents IDOC’s revised com-
mand structure.
No. 10-1389 7
Budgetary reasons kept the state from giving IDOC
permission to fill all shift commander positions. So IDOC
temporarily assigned some lieutenants to serve as shift
commanders. Operational needs prevented IDOC from
eliminating all superintendent positions and reassigning
those individuals as shift commanders. Of the remaining
former captains, 83 became lieutenants; 64 became correc-
tional officers; 5 became youth supervisors; and 10 were
laid off. Since 2003, Illinois has agreed to an ISEA-repre-
sented bargaining unit of shift commanders. Former
captains taking lieutenant positions became part of
AFSCME’s CU-500 bargaining unit. For purposes of
determining seniority, the CU-500 CBA provides (em-
phases supplied):
8 No. 10-1389
Seniority shall, for the purpose of layoff and recall,
be continuous service as currently defined and
administered by the Rules of the Director of Cen-
tral Management Services. Seniority for all other
purposes shall be the continuous length of service
in the affected employee’s classification, except that
employees employed in the CU-500 bargaining
unit as of July 1, 1989, shall have his/her length
of service prior to July 1, 1989, whether continuous
or not, in his/her affected classification counted
toward his/her seniority.
Because the former captains assumed a different classifi-
cation, IDOC gave them seniority based on their demotion
date. Former captains demoted to the lowest rank of
correctional officer were another matter. Officers were in
AFSCME’s RC-6 unit. The CBA determining seniority
for the RC-6 unit differed slightly and perhaps—de-
pending how it is interpreted—meaningfully (emphases
supplied):
Seniority for RC-6 and 9 shall, for the purposes
stated in this Agreement, consist of the length of
service of an employee with their department in an
AFSCME bargaining unit(s), except when a previ-
ously excluded position enters a bargaining unit
pursuant to labor board procedures, seniority
for an employee in that position shall consist of
the employee’s total length of service with their
department.
IDOC initially gave captains demoted to officer
seniority credit for time previously spent in the
No. 10-1389 9
bargaining unit. AFSCME opposed giving the former
captains credit. Some existing RC-6 bargaining unit
members would lose seniority. Seniority determined
bidding rights for shifts, days off, promotions, and the
order of layoffs. AFSCME maintained that the language
from the RC-6 CBA barred persons entering the RC-6
bargaining unit from receiving seniority credit for past
service in the unit. AFSCME argued that the phrase
“length of service” actually meant “length of continuous
service.” IDOC refused to accept AFSCME’s position so
AFSCME filed a grievance on July 22, 2003. The grievance
went to the state’s Central Management Services (CMS)
for resolution. Before arbitration, CMS determined that
the state’s position was not viable. AFSCME and
IDOC agreed on November 18, 2003, to stipulate that
the captains demoted into the RC-6 unit would receive
seniority based on “their length of the continuous
service . . . beginning with their most recent return to
the RC-6 AFSCME bargaining unit.”
B. Some former captains sue state and union officials.
A group of former captains sued current and former
Illinois officials (including Governor Blagojevich and
Curry) in their individual and official capacities
and AFSCME officials in their individual capacities on
June 24, 2005, alleging that the defendants unlawfully
retaliated against them for seeking to unionize with
ISEA. Plaintiffs alleged that defendants violated 42 U.S.C.
§ 1983 by removing them from their positions as
captains and depriving the demoted captains of their
10 No. 10-1389
seniority in retaliation for their exercise of their First
Amendment rights.
Much of the litigation focused on plaintiffs’ attempts
to depose the Governor. On February 27, 2007, the state
defendants sought a protective order to block plaintiffs
from deposing Governor Blagojevich on grounds that it
would just “disrupt a busy public official who should not
be taken away from his work.” R. 46 (citing among other
cases Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999)).
State defendants maintained that it would never
be appropriate to depose the Governor but argued that
it was particularly inappropriate unless plaintiffs iden-
tified “a particularized need” that could not “be satisfied in
a less burdensome manner.” Plaintiffs opposed the motion
on March 15, 2007, arguing that Governor Blagojevich was
not immune from testifying because evidence established
that he had evidence explaining the captain position’s
elimination. Plaintiffs cited the state’s initial disclosures
stating that Blagojevich had “knowledge concerning his
own actions and thought process, but Defendants object to
any discovery from the Governor without there being a
showing that the Governor has personal knowledge of the
subject matter at issue in the case;” the AFSCME defen-
dants’ initial disclosure that Governor Blagojevich would
have discoverable information regarding the “[d]ecision to
eliminate position of captain;” the administration’s June 4,
2003, press release announcing the line item veto of the
captain position’s funding; and a January 13, 2004, state-
ment by the Governor saying why it was necessary to
eliminate “all these high-level positions that” did not
help IDOC “work better.” Plaintiffs argued that
No. 10-1389 11
Blagojevich’s stated reasons for eliminating the captain
position were pretextual and thus, to prove their claim,
they had “to inquire into the ‘thought process’ of the
Governor in making this decision.”
The magistrate judge denied the state defendants’
request on March 28, 2007, because plaintiffs showed
that it was likely that Governor Blagojevich possessed
“relevant information, such that requiring him to sit for
deposition would be reasonable.” The state defendants
objected on April 10, 2007, and advanced a new argu-
ment that the Governor was entitled to legislative im-
munity from suit and discovery. The state defendants
argued that the complaint’s basis was Governor
Blagojevich’s line-item veto because plaintiffs’ evidence
that Blagojevich participated in the decision was the
press release and interview about the veto. Plaintiffs
responded on April 26, 2007, citing the initial disclosures
and the press release and interview regarding the elim-
ination of IDOC positions as evidence that Governor
Blagojevich had relevant evidence, and argued that
defendants waived legislative immunity by failing to
raise the issue earlier. Plaintiffs also argued that legisla-
tive immunity did not prohibit discovery and that leg-
islative immunity is properly raised in a motion to dis-
miss. The district court adopted the magistrate
judge’s opinion in its entirety on May 10, 2007, allowing
plaintiffs to depose Governor Blagojevich. The court did
not address legislative immunity. See Bagley v. Blagojevich,
486 F.Supp.2d 786, 787 (C.D. Ill. 2007).
But that was hardly the end of the legislative
immunity battle. What happened next frames the case
12 No. 10-1389
for purposes of review. On one side, the state attempted
to block Governor Blagojevich’s deposition by arguing
that he was a busy public official who could only be
deposed if the former captains showed a particularized
need. The state defendants were only partially success-
ful. Although the court rejected the “particularized need”
standard, the court did require plaintiffs to show “that
there is some reason to believe that the deposition will
produce or lead to admissible evidence.” R. 49 (quoting
Hobley v. Burge, No. 03 C 3678, 2007 WL 551569, at *2 (N.D.
Ill. Feb. 22, 2007) (unpublished)). On the other side,
after the former captains showed that it was likely the
Governor possessed “relevant information, such that
requiring him to sit for deposition would be reason-
able,” the state argued that the former captains’ evidence
showing that Blagojevich possessed relevant informa-
tion was based on actions protected by legislative im-
munity. Government officials are entitled to legislative
immunity when their actions “stripped of all consider-
ations of intent and motive” are legislative. Bogan v. Scott-
Harris, 523 U.S. 44, 55 (1998). Courts first look at
whether the action took place “in the sphere of legitimate
legislative activity.” Id. at 54 (quoting Tenney v. Brandhove,
341 U.S. 367, 376 (1951)). Although not mandatory, courts
may also look beyond the government officials’ “formal
actions to consider whether the ordinance was legisla-
tive in substance.” Bogan, 523 U.S. at 55.
On May 30, 2007, Governor Blagojevich moved for
reconsideration and for a protective order regarding his
deposition. The Governor argued that plaintiffs based
No. 10-1389 13
their lawsuit on his veto and that the district court did
not address legislative immunity. Blagojevich argued
that legislative immunity shielded him from testifying
“about the motive and/or rationale for his legislative
veto, which directly implicates a legislative immunity
defense and discovery bar.” Blagojevich also argued that
with the Illinois General Assembly in session, deposing
him would be inconvenient. Blagojevich supplemented
this motion on June 19, 2007, asking the district court
to strike the deposition notice plaintiffs submitted on
June 13, 2007. Plaintiffs responded on June 19, 2007,
arguing that Governor Blagojevich improperly raised
“legislative immunity” because he failed to raise it
when he first opposed the deposition. Plaintiffs argued
that legislative immunity is an affirmative defense,
that evidence suggested that the Governor’s decision
to eliminate the captain position before his veto was
administrative, not legislative, and that the case in-
volved Governor Blagojevich’s motivations in the deci-
sion regarding the former captains’ seniority. Governor
Blagojevich replied June 21, 2007, noting that the state
defendants did not mention legislative immunity in
their December 16, 2005, answer “because there were
no allegations of legislative acts in the Complaint.”
Governor Blagojevich filed an emergency motion for
a protective order on Friday, June 22, 2007, asking for
a stay of his deposition that plaintiffs scheduled for
Monday, June 25, 2007. Blagojevich argued that the dep-
osition notice was improper because plaintiffs issued
it while the motion to reconsider was pending, with short
notice during a legislative session, and without con-
14 No. 10-1389
firming defense counsel’s availability. That same day,
plaintiffs responded and the district court denied
Blagojevich’s motions to reconsider and for a protective
order. But the court ruled separately on Governor
Blagojevich’s emergency motion for a protective order,
staying the deposition due to the “difficulty scheduling
the deposition.” The court also directed the parties to
contact the magistrate judge to schedule the deposition.
The parties conferred on June 28, 2007, agreeing not to
conduct the deposition until the legislative session ended
in “probably late August, 2007.” Blagojevich’s counsel
advised that “he may be seeking a protective order
or other relief on the scope of Governor Blagojevich’s
deposition or otherwise based upon privilege.”
On July 25, 2007, Governor Blagojevich renewed his
efforts to block his deposition. He argued that legislative
immunity barred plaintiffs from deposing him on the
captain position’s elimination and that in the alternative
his deposition should be delayed because of his govern-
ment position. On August 7, 2007, Governor Blagojevich
moved to dismiss the complaint against him pursuant
to legislative immunity. He argued that eliminating
the captain position was legislative, that the plaintiffs
wanted to hold him liable for a budgetary decision,
and that the inquiry was based on his “thought process.”
On August 8, 2007, Curry sought a protective order to
limit her deposition’s scope pursuant to legislative im-
munity (excluding IDOC’s budget proposals, the captain
position’s funding, and the veto). Plaintiffs responded
September 24, 2007, arguing that the budget changes “were
not merely legislative in nature” because others were
No. 10-1389 15
placed into positions to perform the same work and that
no one performed a budget analysis. Plaintiffs argued
that Governor Blagojevich’s actions preceding the
captain position’s elimination were “outside the scope
of legislative immunity.” Plaintiffs cited the governor’s
meetings during “budget negotiations which involved
negotiations outside the legislative process.” Plaintiffs
argued that these “meetings were being held in order
for the Governor to appease contributors to his cam-
paign.” Plaintiffs opposed the motion to dismiss on
grounds that legislative immunity, if applicable, did not
shield Governor Blagojevich from liability on the
seniority aspect of their claim.
On December 7, 2007, the court denied Blagojevich
and Curry’s motions. Because defendants answered
plaintiffs’ complaint, the court converted the motion to
dismiss to a motion for judgment on the pleadings.
The court found “[w]ithout a doubt” that the veto was
legislative procedurally, but nothing on the complaint’s
face suggested that the veto was substantively legisla-
tive. Yet the court also found that nothing on the face of
the complaint suggested that the decision to deny
seniority to the former captains “was accomplished in
the form of a legislative act.” The court refused to decide
whether legislative immunity applied as a testimonial
privilege because defendants did not provide sufficient
evidence that legislative immunity applied to their
actions. The court also noted that neither party provided
evidence explaining whether the shift commanders
were merely renamed captains. If the shift commanders
were renamed captains, the court said the veto would
16 No. 10-1389
be administrative. Bagley v. Blagojevich, No. 05-3156,
2007 WL 4302434 (C.D. Ill. Dec. 7, 2007).
Governor Blagojevich renewed his protective order
motion on January 23, 2008, again on grounds of legisla-
tive immunity. Blagojevich provided evidence on
whether the shift commanders were simply renamed
captains. He argued that the shift commanders had
additional responsibilities and that the timing of the
shift commander position’s creation suggested that it
was not simply a renamed captain. The Governor also
argued that his deposition would not produce evidence
concerning the seniority decision and thus he should not
be deposed on that matter due to his government posi-
tion. On January 25, 2008, Curry renewed her motion for
a protective order limiting her deposition’s scope. Plain-
tiffs responded April 14, 2008, arguing that the shift
commander position was simply a renamed correc-
tional captain, and that at the very least, a question of
fact precluded a legislative immunity finding. Governor
Blagojevich filed a renewed motion for judgment on
the pleadings on May 22, 2008, pursuant to legislative
immunity.
On October 22, 2008, the court granted Governor
Blagojevich and Curry protective orders pursuant to
legislative immunity. The court did not determine
whether shift commanders were renamed captains
because it found that the plaintiffs’ evidence showed
that “the elimination of the captain position had prospec-
tive implications . . . and . . . [had] the traditional hall-
marks of legislative action.” The court prohibited
No. 10-1389 17
plaintiffs from seeking discovery from Curry on the
IDOC budget, the legislation defunding the captains, and
the analysis of the budgetary effects of the position’s
elimination. The court also found that plaintiffs failed
to present evidence suggesting that Governor Blagojevich
participated in the seniority decision and decided
that deposing Governor Blagojevich would be improper.
The court also converted the motion on the pleadings
to a motion for summary judgment and deferred its
ruling until the parties had an opportunity to present
more evidence. Bagley v. Blagojevich, No. 05-3156, 2008
WL 4724310 (C.D. Ill. Oct. 22, 2008).
The court granted Governor Blagojevich summary
judgment on February 20, 2009, based on its finding
that legislative immunity shielded him from liability.
The court also found that plaintiffs failed to present
evidence connecting Governor Blagojevich to the sen-
iority decision. Bagley v. Blagojevich, No. 05-3156, 2009
WL 426399 (C.D. Ill. Feb. 20, 2009).
The AFSCME defendants filed for summary judgment
on February 26, 2009, and the remaining state defendants
did the same on February 27, 2009. The state defendants
argued that there was no evidence of a causal relation-
ship between plaintiffs’ union activities and the alleged
retaliatory actions. The state defendants argued that
the captain position was eliminated to reduce manage-
ment layers, that the CBA language drove the seniority
decision, and that there was no evidence of improper
motive or knowledge of plaintiffs’ alleged protected
activities. The AFSCME officials argued that their
18 No. 10-1389
actions related to the former captains’ seniority were
protected by various immunity doctrines, and alterna-
tively, that they did not act under color of state law to
deprive the former captains of their First Amendment
rights.
In a September 1, 2009, response to the summary judg-
ment motions, plaintiffs acknowledged:
. . . that if Governor Blagojevich’s actions are en-
titled to legislative immunity, all of the other
defendants are entitled to immunity as to [the
issue of eliminating the captain position]. Given
that the Court has already granted the motions by
concluding that qualified immunity has been
established, this issue has previously been dis-
posed of. As such, the only issue remaining for
this Court to decide is whether there is sufficient
evidence from which a jury could conclude that
the defendants retaliated against the Plaintiffs
by eliminating their seniority.
Plaintiffs reasserted their disagreement on legislative
immunity but recognized that the law of the case doc-
trine closed the issue. Plaintiffs argued that defendants
agreed to read the word “continuous” into the CBA to
deny the former captains seniority; that Curry spoke
with the person making the seniority decision; that an
AFSCME official spoke to an administration official;
and that the history of AFSCME and ISEA’s battle to
represent the captains suggested that the AFSCME offi-
cials’ actions were retaliatory. Plaintiffs alleged that
AFSCME used its campaign contributions to influence
No. 10-1389 19
the state officials’ decisions related to the former cap-
tains’ seniority.
The district court granted the remaining defendants
summary judgment on January 15, 2010. The court found
that plaintiffs failed to show evidence of a conspiracy
between AFSCME officials and the Blagojevich admin-
istration. Although the court found that the immunity
doctrines did not apply to the union officials, the court
found that plaintiffs failed to present sufficient evidence
linking the AFSCME officials to state action. The court
found that its prior legislative immunity determination
as to Governor Blagojevich and Curry did not affect the
other state and AFSCME defendants’ liability as to the
captain position’s elimination. Yet the plaintiffs “unsuc-
cessfully attempted to tie the Court’s earlier decision
regarding Blagojevich’s immunity to all Defendants.”
Bagley v. Blagojevich, 685 F.Supp.2d 904, 911 (C.D. Ill. 2010).
The court noted:
The fact that a governor enjoys legislative immu-
nity for making a line item veto in a budget bill
does not necessarily mean that lower level execu-
tive branch officials enjoy the same immunity. In
addition, the Plaintiffs’ statement that all of the
other Defendants are immune is broad enough
to include the AFSCME Officials as well.
The Plaintiffs have attempted to put words into
the mouth of the Court. The Court’s determination
regarding the immunities enjoyed by former
Governor Blagojevich and Curry are each separate
determinations, compartmentalized from the rest
of the case and the rest of the Defendants. Immu-
20 No. 10-1389
nity is not automatically imputed to other Defen-
dants.
The Plaintiffs have thrown up their hands on the
matter of the elimination of the Captain Position.
They have not responded to the State Officials’
contentions on this claim, and they have not made
any alternative arguments. The Plaintiffs have
made no effort to effectively argue their case.
Instead, they point out an earlier disagreement
they had with the Court that is not necessarily
controlling on the issue.
Because plaintiffs failed to respond to the state offi-
cials’ arguments on the remaining issues, the court found
that they waived the issue “by making no real argument on
the claim.” Id. The court went on to find that plaintiffs
failed to present evidence of a causal link between the ISEA
organizing activities and the seniority decision. The court
found that the interpretation of the CBA “was not objec-
tively unreasonable,” id., and that there was not enough
evidence that state officials influenced the seniority
decision. Plaintiffs filed a timely appeal from the final
judgment entered in favor of all of the defendants.
II. Standard of Review
We review a district court’s grant of summary judg-
ment de novo. Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602
F.3d 845, 849 (7th Cir. 2010). Summary judgment is ap-
propriate “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.
No. 10-1389 21
P. 56(a). “A genuine issue of material fact arises only if
sufficient evidence favoring the nonmoving party exists
to permit a jury to return a verdict for that party.”
Egonmwan, 602 F.3d at 849 (quoting Faas v. Sears, Roebuck &
Co., 532 F.3d 633, 640-41 (7th Cir. 2008)). We construe
facts favorably to the nonmoving party and grant the
nonmoving party “all reasonable inferences” in its favor.
Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010) (citing
Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010)).
Although this is a § 1983 case alleging retaliation for
the plaintiffs’ union-organizing activities, the former
captains argue that summary judgment should be
granted “quite cautiously in employment discrimination”
cases because issues of intent and motivation are “inher-
ently fact driven.” The former captains cite Sarsha v. Sears,
Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993), where
we noted that the summary judgment standard “is
applied with added rigor in employment discrimination
cases, where intent and credibility are crucial issues.”
In Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396
(7th Cir. 1997), we clarified the propriety of summary
judgment when intent is an issue in employment cases.
We noted that language in some cases implied “that
because intent is a critical issue in employment discrim-
ination cases, summary judgment is unlikely to be ap-
propriate.” Id. (citing Wolf v. Buss (Am.) Inc., 77 F.3d 914,
918 (7th Cir. 1996); Sarsha, 3 F.3d at 1038, 1042; Holland
v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1312-13
(7th Cir.1989)). We explained that “there is not a separate
rule of civil procedure governing summary judgment in
22 No. 10-1389
employment discrimination cases.” Wallace, 103 F.3d at
1396. The cases indicating the importance of intent
mean that “courts should be careful in a discrimination
case as in any case not to grant summary judgment if
there is an issue of material fact that is genuinely con-
testable, which an issue of intent often though not
always will be.” Id.
We explained the “added rigor” phrase further in
Alexander v. Wisconsin Department of Health & Family
Services, 263 F.3d 673, 681 (7th Cir. 2001) (footnote omitted):
Although it is understandable how one might
infer from our regular use of this phrase that we
meant to communicate a more stringent standard
to be used in reviewing employment cases, the
original use of this phrase indicates that it was
merely included to stress the fact that employment
discrimination cases typically involve questions of
intent and credibility, issues not appropriate for
this court to decide on a review of a grant of sum-
mary judgment. Thus, regardless of our inclu-
sion of the phrase “added rigor” in prior cases,
we review a district court’s decision to grant
a motion for summary judgment on a claim in-
volving issues of employment discrimination as
we review any case brought before this court
involving the review of a grant of summary judg-
ment.
As we held in Alexander, our review of the district court’s
grant of summary judgment in this case is no different
from any other case. If a genuine dispute as to a material
No. 10-1389 23
fact exists, such as intent, summary judgment is inap-
propriate. But that genuine dispute must be supported
by “sufficient evidence . . . [to permit] a jury to return
a verdict for” appellants. Egonmwan, 602 F.3d at 849
(quoting Faas, 532 F.3d at 640-41).
III. Analysis
At oral argument, the former captains’ counsel argued
that Governor Blagojevich’s actions after his veto did not
constitute legislative action; rather, such actions are
administrative. Yet at the district court the former cap-
tains’ targeted the line-item veto and the seniority deci-
sion as Governor Blagojevich’s alleged retaliatory
acts. At times the former captains alleged that actions
before the line item veto constituted administrative
actions and the parties disputed whether the “shift com-
mander” position was merely a renamed captain. Yet
the former captains never tied Governor Blagojevich
to any alleged retaliatory action that happened before
or after the veto.
Early in discovery, the evidence the former captains
cited tying Governor Blagojevich to the captain posi-
tion’s elimination consisted of a press release an-
nouncing the veto and an interview on eliminating
IDOC positions. The former captains cited this evidence
because the Governor tried to block his deposition
by arguing that his high-ranking public official status
justified requiring plaintiffs to show that deposing
him would lead to admissible evidence. See Stagman, 176
F.3d at 994-95 (holding that the court did not abuse its
24 No. 10-1389
discretion in finding that deposing Illinois’s attorney
general “would serve no useful purpose”); Olivieri v.
Rodriguez, 122 F.3d 406, 409-10 (7th Cir. 1997) (noting
that busy officials “should not have to spend their time
giving depositions in cases arising out of the performance
of their official duties unless there is some reason to
believe that the deposition will produce or lead to ad-
missible evidence”). And the former captains defeated
Governor Blagojevich’s initial attempts to avoid his
deposition because of the evidence tying him to the
veto. The magistrate judge found on March 28, 2007, that:
. . . Governor Blagojevich is likely to possess rele-
vant information, such that requiring him to sit
for deposition would be reasonable. . . . Plaintiffs
allege that the Governor was either the ultimate
decision maker or at least personally involved in
the decision to eliminate the correctional captain
position. As support, Plaintiffs have provided
the Court with a June 4, 2003 press release from
the Office of the Governor, in which the Governor
personally takes credit for the decision to elim-
inate the correctional captain position, as well as a
newspaper article containing similar comments.
Bagley v. Blagojevich, No. 05-3156, 2007 WL 951921, at *3
(C.D. Ill. Mar. 28, 2007). The district court expressly
adopted the magistrate judge’s opinion in its entirety
on May 10, 2007, denying Governor Blagojevich’s initial
effort to block his deposition. See Bagley, 486 F.Supp.2d
at 787.
The former captains did not show how Governor
Blagojevich participated in the decision to fill some of
No. 10-1389 25
the former captains’ responsibilities with shift com-
manders or any other post- or pre-veto actions that
could be construed as administrative. And the former
captains do not appeal the lower court’s decision that
Blagojevich’s high-ranking public official status justifies
requiring plaintiffs to show that he was “likely to possess
relevant information, such that requiring him to sit for
deposition would be reasonable.” Id. at 789. Because of
this posture, we proceed to determine whether the
district court erred in finding that legislative immunity
covered Governor Blagojevich’s veto. Deciding whether
legislative immunity covers post- or pre-veto acts would
be irrelevant because the former captains did not pre-
sent evidence that Governor Blagojevich partic-
ipated in those decisions.
As for the remaining defendants, the former captains
fail to acknowledge that the district court’s decision
granting legislative immunity to Governor Blagojevich’s
veto (and Curry’s involvement) did not relate to the
other defendants’ involvement in the position’s elimina-
tion. As argued by the former captains’ counsel at oral
argument, the post-veto actions may not be legislative;
rather, decisions such as creating a new position may
be administrative and unprotected by legislative immu-
nity. But the former captains fail to explain why the
district court erred in finding that they waived the
issue related to the non-Blagojevich defendants “by
making no real argument on the claim.” Indeed, the
former captains’ response to the non-Blagojevich defen-
dants’ motions for summary judgment acknowledges
“that if Governor Blagojevich’s actions are entitled to
26 No. 10-1389
legislative immunity, all of the other defendants
are entitled to immunity as to” the captain position’s
elimination. Thus, the former captains pin their case
against the non-Blagojevich defendants’ participation in
the position’s elimination on overturning the court’s
legislative immunity decision. See Reply Br. of Pls’-Appel-
lants at 1 (“This case presents largely a narrow question:
‘is a line item veto by a Governor per se entitled to leg-
islative immunity?’”)
A. Legislative immunity
Our discussion of whether legislative immunity covered
the veto starts with the Supreme Court’s unanimous
Bogan decision.1 “Absolute legislative immunity attaches
to all actions taken ‘in the sphere of legitimate legisla-
1
We acknowledge that there is an argument regarding whether
state officials generally, and Governor Blagojevich in par-
ticular, are entitled to claim legislative immunity pursuant to
federal common law or state law, which in this case would
be Illinois law. Compare Empress Casino Joliet Corp. v. Blagojevich,
Nos. 09-3975 & 10-1019, ___ F.3d ___, 2011 WL 710467, at *7-9
(7th Cir. Mar. 2, 2011), partially vacated on unrelated grounds
by Amended Order Granting Rehearing En Banc (Apr. 13, 2011),
with id. at *18-22 (Posner, J., dissenting) (citing Jorgensen v.
Blagojevich, 811 N.E.2d 652 (Ill. 2004)). We do not comment on
that issue other than to note that the former captains did not
argue that Illinois law applied to the issue of legislative im-
munity and appear content with having the issue decided
under federal law as they do not raise any state law issues
on appeal and appear to have never raised the matter before
the district court.
No. 10-1389 27
tive activity.’ ” 523 U.S. at 54 (quoting Tenney, 341 U.S.
at 376). Whether an action is legislative “turns on the
nature of the act, rather than on the motive or intent of
the official performing it.” Id. Legislative acts include
signing and vetoing bills because they are “integral steps
in the legislative process.” Id. at 55 (citing Edwards v.
United States, 286 U.S. 482, 490 (1932); Smiley v. Holm,
285 U.S. 355, 372-73 (1932)).
In Bogan, an administrator of a city’s health and
human services department received a complaint that an
employee temporarily under her supervision “made
repeated racial and ethnic slurs about her colleagues.” 523
U.S. at 46. As the administrator prepared to fire the
employee, the employee “used her political connections
to press her case with several state and local officials.”
Id. The city council held a hearing and accepted a settle-
ment where the employee was suspended without pay
for 60 days, but the city’s mayor later substantially
reduced the punishment. Id. at 47. As the charges
against the employee pended, the mayor prepared a
budget that froze salaries and eliminated 135 positions
because of an anticipated reduction in state assistance.
Id. The budget also eliminated the administrator’s depart-
ment, of which she was the only employee. Id. The
council adopted the proposal and the mayor signed
the bill, eliminating the administrator’s position. Id.
The administrator sued the city, its mayor, and other
city officials, alleging that her position’s elimination
“was motivated by racial animus and a desire to
retaliate against her for exercising her First Amend-
28 No. 10-1389
ment rights in filing the complaint.” Id. A jury found the
city, its mayor, and another official liable because the
administrator’s speech was a substantial or motivating
factor in her position’s elimination. Id. at 47-48. The
First Circuit affirmed the judgment against the mayor
and the official, holding that the positions’ elimination
was not legislative because the mayor and the official
individually targeted the administrator and “treated
her differently from other managers.” Id. at 54 (quoting
Scott-Harris v. City of Fall River, 134 F.3d 427, 441 (1st Cir.
1997)).
The Supreme Court reversed. The Court held that
“[w]hether an act is legislative turns on the nature of the
act, rather than on the motive or intent of the official
performing it. The privilege of absolute immunity ‘would
be of little value if [legislators] could be subjected to the
cost and inconvenience and distractions of a trial upon
a conclusion of the pleader, or to the hazard of a judg-
ment against them based upon a jury’s speculation as
to motives.’ ” Bogan, 523 U.S. at 54 (quoting Tenney, 341
U.S. at 377). A defendant acts “in a legislative capacity
even though he allegedly singled out the plaintiff for
investigation in order ‘to intimidate and silence plaintiff
and deter and prevent him from effectively exercising
his constitutional rights.’ ” Id. at 55 (quoting Tenney, 341
U.S. at 371). The Court “stripped . . . considerations of
intent and motive” and examined whether the actions
were legislative. Id. at 55.
Bogan first looked at whether the acts were “in form,
quintessentially legislative.” Id. The Court had “little
No. 10-1389 29
trouble concluding that they were.” Id. Introducing,
voting, and signing into law a budget were “formally
legislative” actions even though an executive official (the
mayor) introduced and signed the budget. Id. The
mayor’s actions “were legislative because they were
integral steps in the legislative process.” Id.
That almost ended the matter. But the Court addressed
the plaintiff’s request “to look beyond petitioners’
formal actions to consider whether the ordinance was
legislative in substance.” Id. The Court noted that it
did not need to “determine whether the formally legisla-
tive character of petitioners’ actions is alone sufficient
to trigger legislative immunity because here the ordi-
nance, in substance, bore all the hallmarks of tradi-
tional legislation.” Id. “The ordinance reflected a discre-
tionary, policymaking decision implicating the bud-
getary priorities of the city and the services the city
provides to its constituents.” Id. at 55-56. The action
involved “the termination of a position, which, unlike
the hiring or firing of a particular employee, may have
prospective implications that reach well beyond the
particular occupant of the office.” Id. at 56. The city coun-
cil’s elimination of the department was an action “in a
field where legislators traditionally have power to act.” Id.
(quoting Tenney, 341 U.S. at 379).
The parties’ briefs indicate that we should apply the
two-part test even though Bogan does not explicitly
require an inquiry into the action’s substance. We
will examine the action’s substance because it helps
illuminate what actions are included “in the sphere of
30 No. 10-1389
legitimate legislative activity.” Id. (quoting Tenney, 341
U.S. at 376).
To determine whether an act is legislative in form,
courts look at whether the defendants acted pursuant to
constitutional or statutory procedures. See State Emps.
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 90-91 (2d Cir.
2007) (concluding that it was unclear whether the alleged
actions were “integral steps in the statutory budget
process”); Gallas v. Supreme Court of Pa., 211 F.3d 760,
774 (3d Cir. 2000) (“In addition, the act must be ‘pro-
cedurally’ legislative, that is, passed by means of estab-
lished legislative procedures.” (quoting Ryan v. Burlington
Cnty., N.J., 889 F.2d 1286, 1291 (3d Cir. 1989))); Macuba v.
Deboer, 193 F.3d 1316, 1321 (11th Cir. 1999) (examining
a county code to determine whether a board of commis-
sioners had authority to take the action that formed a
basis of the claim). Bogan asks whether the actions “were
integral steps in the legislative process.” 523 U.S. at 55.
Without a doubt, the act of vetoing a line item in a bill
constitutes an “integral” step in Illinois’s “legislative
process.” Illinois’s Constitution gives the state’s governor
authority to exercise a line-item veto over appropriation
bills. Ill. Const. art. IV, § 9(d) (“The Governor may reduce
or veto any item of appropriations in a bill presented
to him.”). Bogan also recognized that a governor’s
vetoing of a bill is part of the legislative process. 523 U.S.
at 55 (citing Smiley, 285 U.S. at 372-73). The former
captains do not expressly acknowledge that Governor
Blagojevich’s veto was legislative in form; rather they
forfeit this point by failing to argue it in their opening
No. 10-1389 31
brief. State appellees’ opening brief raises appellants’
forfeiture, Br. of State Defs’-Appellees 25, and appellants’
reply brief does not challenge this. See generally Reply
Br. of Pls’-Appellants 1-10. Thus, we conclude that Gov-
ernor Blagojevich’s action in vetoing the provision
funding the captain position was legislative in form.
This could be the end of the discussion. Yet like the
Supreme Court in Bogan, we will look at the action’s
character to determine whether the action substan-
tively “bore all the hallmarks of traditional legislation.”
523 U.S. at 55. Bogan explained that eliminating posi-
tions qualifies as legislative in substance if it reflects “a
discretionary, policymaking decision implicating the
budgetary priorities of the [government] and the services
the [government] provides to its constituents.” Id. at 55-56.
The decision to eliminate a position is “unlike the hiring
or firing of a particular employee” because eliminating
positions “may have prospective implications that
reach well beyond the particular occupant of the office.”
Id. at 56.
Our precedent supports the distinction between the
firing of an employee and the elimination of a position. In
Nisenbaum v. Milwaukee County, 333 F.3d 804, 808 (7th Cir.
2003), we held that Bogan kept “state and local officials
[from being] mulcted . . . on account of introducing, voting
for, or signing legislation.” Thus, legislative immunity
attached to a county executive’s role of “transmitting
a budget” from the department of public works to the
county board, which enacted the budget, eliminating
the plaintiff’s position. Id. In Strasburger v. Board of Ed-
32 No. 10-1389
ucation, Hardin County Community Unit School District
No. 1, 143 F.3d 351, 355 & n.1 (7th Cir. 1998), we noted
that a school board’s dismissal of an employee through
a reduction in force due to low class enrollments and
the need to “conserve funds” could justify legislative
immunity for the board members under Bogan, but
the board members failed to raise the defense.
Legislative immunity claims are not successful when
the action relates to the firing of a specific individual
rather than the elimination of positions. In Baird v. Board
of Education for Warren County Unit School District No. 205,
389 F.3d 685, 696 (7th Cir. 2004), legislative immunity
did not attach to a school board’s termination of a
principal for reasons cited in an evaluation. The board
argued that the individual board members were
immune because the actions taken to fire the employee—
such as “the determination of rules and procedures,
participation in the pre-termination hearing and in-
dividual decisions to” fire the employee—were legisla-
tive acts. Id. But we found that the activities were not
“taken in the sphere of legitimate legislative activity”
because they involved an employee’s termination, which
was an administrative act. Id. (quoting Bogan, 523 U.S.
at 54).
Other circuits apply the same distinction between
actions that involve the elimination of positions for
policy reasons (legislative actions) and actions that
result in an individual’s termination for reasons that
relate to that individual (administrative actions). In
Bryant v. Jones, 575 F.3d 1281, 1306 (11th Cir. 2009), an
No. 10-1389 33
official developed a budget that eliminated an em-
ployee’s position. The employee alleged that the budget
proposal was “an artifice for what was in fact a retaliatory
personnel decision.” Id. at 1303. The court held that
“[u]nlike the termination of an individual employee,
the elimination of a public employment position ‘may
have prospective implications that reach well beyond
the particular occupant of the office.’ ” Id. at 1306
(quoting Bogan, 523 U.S. at 56). A “decision to abolish
the position” and prepare the budget proposal “is
properly construed as embodying a policy decision
with prospective implications.” Id. at 1306-07. Even though
the “facts obviously suggest an improper motive,” id. at
1307, the court held that a “claim of an unworthy purpose
does not destroy the privilege.” Id. (quoting Tenney,
341 U.S. at 377). Thus, the court refused to consider the
official’s intent or motive in preparing the budget. Bryant,
575 F.3d at 1307.
In Baraka v. McGreevey, 481 F.3d 187, 199 (3d Cir. 2007),
the court granted legislative immunity to a governor
who signed, and a state arts council’s chairperson who
advocated for, legislation eliminating the plaintiff’s
position. The plaintiff, the state’s poet laureate, created “an
outcry” after reading a poem that the governor said
implied that “Israelis had known about the September 11
terrorism attacks.” Id. at 194 (quoting a statement from
the governor’s spokesperson). The court held that the
actions were substantively legislative because the law
“eliminated the position of poet laureate, a position
that was legislatively created. Eliminating the position
34 No. 10-1389
of poet laureate constitutes the type of ‘policy-making’
that traditional legislation entails, and the actions here
were substantively legislative.” Id. at 199 (citing Gallas,
211 F.3d at 774). The officials’ motive and intent were
“immaterial to whether certain acts [were] entitled to
legislative immunity.” Id. at 200 (citing Bogan, 523 U.S.
at 54-55). Consistent with this distinction, Fowler-
Nash v. Democratic Caucus of the Pennsylvania House of
Representatives, 469 F.3d 328, 340 (3d Cir. 2006), held
that because the alleged actions “did not reach beyond
a single employee,” and did not eliminate a position
“thereby affecting future employees,” the defendants
were not acting legislatively when they terminated the
plaintiff. The decision “did not rely on any broad con-
sideration of policy, neither was it directed to creating
a new policy.” Id. The situation was “a textbook example
of a legislator performing an administrative function.” Id.
Governor Blagojevich’s elimination of the captain’s
position through his budget proposal and his line item
veto substantively attempted to reduce management
positions in order to save money. Perhaps the Governor
harbored secret motives, but motives do not matter
in determining whether the action is legislative. See
Bogan, 523 U.S. at 54 (“Whether an act is legislative turns
on the nature of the act, rather than on the motive or
intent of the official performing it.”); Tenney, 341 U.S. at
377 (“The claim of an unworthy purpose does not
destroy the privilege.”). Governor Blagojevich’s veto
targeted cutting costs and eliminating management
positions. Nothing in the record suggests that the
Governor targeted particular employees; rather, he tar-
No. 10-1389 35
geted the positions. Thus, Governor Blagojevich’s line-
item veto was substantively a legislative act and not
administrative.
The former captains argue that state officials did not
perform a budgetary analysis or determine whether
“there was any financial benefit to eliminating” the
captain position. Yet state officials believed they could
save $17 million a year by eliminating 200-plus captain
positions and reduce the total number of IDOC positions
by 162. Governor Blagojevich also explained in a press
release that the decision to eliminate the captain
position was an attempt to reduce “the cost of middle
management we just don’t need.”
The former captains argue that the creation of “a
nearly identical position” after the captain position’s
elimination shows that the decision was administrative.
This contention lacks citation to the record and is a mere
assertion without details supporting the conclusion.
Failure to “show how any evidence in the record tends
to support such a claim” generally results in a waiver
of the argument. Judson Atkinson Candies, Inc. v. Latini-
Hohberger Dhimantec, 529 F.3d 371, 384 (7th Cir. 2008). Yet
the former captains’ opening brief’s fact section details
the issue sufficiently for us to address this contention
because this case demonstrates how this was not a one-for-
one replacement of disfavored employees with more
favored individuals to do the same work.
Some responsibilities overlapped and some former
captains performed duties similar to the shift com-
manders, but not to a degree that the reorganization
36 No. 10-1389
was not prospective. The reorganization reduced the
command structure from twelve to ten positions,
merging major/chief of security, superintendent, and
captain positions into a single major/shift commander
position. Assistant wardens of operations took over
many of the duties performed by the majors/chiefs of
security. The shift commanders also started to regularly
command shifts as the high number of captains at
certain facilities kept captains from regularly com-
manding shifts. This reorganization “reflected a discre-
tionary, policymaking decision implicating the budgetary
priorities” of the government. Bogan, 523 U.S. at 55. The
veto terminated “a position, which, unlike the hiring
or firing of a particular employee,” had “prospective
implications that reach well beyond the particular occu-
pant of the office.” Id. at 56. This elimination of a posi-
tion is “a field where legislators traditionally have
power to act,” id. (quoting Tenney, 341 U.S. at 379), and
plaintiffs have not shown us why this case is otherwise.
The former captains cite Canary v. Osborn, 211 F.3d 324
(6th Cir. 2000), in arguing that we should look closely
at Blagojevich’s actions to determine whether they bore
the “hallmarks of traditional legislation.” In Canary, an
assistant principal sued school board members after
they demoted him. See 211 F.3d at 327-28. The board
members claimed legislative immunity protected their
decision. Id. at 328. On appeal, the Sixth Circuit affirmed
the finding that the board members were not entitled to
legislative immunity because the record did not indicate
that they made the decision for budget reasons. See id.
at 330. The record indicated that the action was not a
No. 10-1389 37
position’s elimination because the board assigned others
to fill the plaintiff’s old position and to fulfill his former
job duties. See id. at 330-31. Canary is distinguishable
from this case in an instructive manner: it involved the
replacement of an individual with other individuals
with the same title or duties. Here, the individuals in
the “shift commander” position took up additional re-
sponsibilities and the action reorganized and streamlined
IDOC’s command structure.
The former captains also cite Acevedo-Garcia v. Vera-
Monroig, 204 F.3d 1 (1st Cir. 2000), in arguing that Gov-
ernor Blagojevich’s decision targeted “individuals cur-
rently employed as Captains.” In Acevedo-Garcia, a
group of current and former city employees sued the
city, its mayor, and others under 42 U.S.C. § 1983,
alleging they were fired or that their work conditions
were made worse for political reasons. See 204 F.3d at 4.
Two ordinances eliminated positions (almost all af-
filiated with the disfavored party) and detailed layoffs.
See id. at 5. The defendants asserted legislative immu-
nity. See id. at 4. The First Circuit affirmed the district
court’s rejection of immunity because the replacement
of the employees with politically connected workers
and the political harassment did not reflect a dis-
cretionary policymaking decision. See id. at 8. The
political discrimination was not “prospective” and
did not “reach well beyond the particular occupant of the
office.” Id. (quoting Bogan, 523 U.S. at 56). Rather, it
“targeted specific individuals affiliated with” the
disfavored party. Id.
38 No. 10-1389
Acevedo-Garcia is distinguishable from this case
because the record does not indicate that the state
officials eliminated the captain position because of
political allegiances. The closest the record comes to
indicating that the former captains’ politics were
involved is Governor Blagojevich’s statement that ap-
parently AFSCME was “concerned that most of these
captains happen to be Republicans and that they
shouldn’t be hired.” This quote does not indicate that
a belief as to the former captains’ political affiliation
drove the state officials’ decision because in the very
next part of the quote the Governor says that the
former captains “should be able to reapply for other
positions in state government and we don’t care what
political party they come from.” And 55 of the former
captains were promoted to shift commander. Of the
other former captains, 83 took lieutenant positions, 64
took correctional officer positions, and 10 accepted
layoffs. Governor Blagojevich’s veto did not target in-
dividuals; rather, it targeted a broad category of em-
ployees who held the same position, not for the employ-
ees’ political allegiances, but to reduce layers of manage-
ment.
Because we find that Governor Blagojevich’s veto was
legislative, we also hold that the district court did not
abuse its discretion in blocking the Governor’s deposi-
tion and limiting Curry’s deposition. In Dombrowski v.
Eastland, 387 U.S. 82, 85 (1967) (per curiam), the Court
held in dismissing a civil suit that legislative immunity
protected legislators engaged in legislative actions “not
only from the consequences of litigation’s results but
No. 10-1389 39
also from the burden of defending themselves.” In
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502-03
(1975), the Court held that civil actions force legislators
to “divert their time, energy, and attention from their
legislative tasks to defend the litigation. Private civil
actions also may be used to delay and disrupt the leg-
islative function.” The court reaffirmed “that once it is
determined that” a legislator is “acting within the ‘legiti-
mate legislative sphere’ the Speech or Debate Clause is
an absolute bar to interference.” Id. (quoting Doe v.
McMillan, 412 U.S. 306, 314 (1973)). In Supreme Court of
Virginia v. Consumers Union of the United States, Inc., 446
U.S. 719, 731-32 (1980) (citations omitted), the Court held
that although separation of powers “justifies a broader
privilege for Congressmen than for state legislators” the
Court generally equates “the legislative immunity to
which state legislators are entitled under § 1983 to
that accorded Congressmen under the Constitution.”
We see no reason why the immunity protecting the Gov-
ernor from liability for his veto (and Curry to the extent
of her involvement in the veto) would not also pro-
tect them “from the burden of defending themselves,”
Dombrowski, 387 U.S. at 85, for their actions “ ‘in the sphere
of legitimate legislative activity.’ ” Id. (quoting Tenney,
341 U.S. at 376).
The former captains cite Rowland, 494 F.3d at 71, in
arguing that the court should decide whether legislative
immunity applied after more discovery. In Rowland, the
court upheld the denial of a motion to dismiss, which
the defendants based partially on legislative immunity.
See id. at 76. The court held that additional discovery
40 No. 10-1389
was “necessary to determine whether defendants’ acts
were indeed procedurally legislative under Bogan.” Id.
at 90. Yet Rowland held that the district court erred in
focusing on “defendants’ motives when concluding that
discovery was warranted.” Id. Rowland also required
discovery to determine whether the actions in ques-
tion were substantively legislative. 494 F.3d at 92. The
pleadings only alleged that the employees were fired “for
illegal reasons,” not that their positions’ budget lines
were eliminated. Id.
The former captains also cite Jaggers v. City of Alexandria,
No. 08-5213, 2009 WL 233244, at *5 (6th Cir. Feb. 2, 2009)
(unpublished) for its holding that legislative immunity
could not be determined on a complaint’s face. There, a
city council rejected plaintiffs’ development plan. The
developers sued the city and the council members under
42 U.S.C. § 1983. See id. at *2. The council members
moved to dismiss on legislative immunity grounds. Id.
The court held that nothing in the record established
that the development plan’s rejection was legislative
and not “managerial or administrative.” Id. at *5. Although
the council members had authority to disapprove
of development plans, there was “no allegation or evi-
dence . . . establishing that the [legislative] procedures”
were the procedures used “rather than their managerial
or administrative powers.” Id. Thus, discovery was neces-
sary to determine whether these actions were legislative.
See id. The court also held that discovery was necessary
to determine whether the actions were substantively
legislative, or that the “decision evidenced broad-
based policy decisions.” Id.
No. 10-1389 41
The former captains claim that additional discovery
is necessary to determine whether Blagojevich acted
legislatively. But the former captains do not explain
how deposing the Governor (or Curry more extensively)
would lead to such evidence. Rowland does not give the
former captains an automatic right to depose Governor
Blagojevich; rather Rowland requires additional dis-
covery when the pleadings do not explain how the
alleged action was performed. 494 F.3d at 92 (“Plaintiffs
do not allege in their amended complaint that
defendants ‘terminat[ed] the budget lines’ that would
have funded their positions or that defendants elim-
inated the positions through other means.” (citation
omitted)). We know how the Governor’s actions con-
tributed to the captain position’s elimination: Governor
Blagojevich vetoed legislation funding the position.
As noted above, the former captains failed to present
evidence connecting Blagojevich to other actions
and waived arguing that the other non-Blagojevich de-
fendants participated in the captain position’s elimina-
tion in non-legislative capacities. Procedurally, Governor
Blagojevich vetoed the captain position’s funding
pursuant to his state constitutional authority. Substan-
tively, the evidence shows that the veto of the captain
position’s funding was pursuant to a broad-based policy
targeting certain positions believed unnecessary. Both
Rowland and Jaggers also involved motions to dismiss
and are thus materially different from this case where
the parties had ample opportunities for discovery on
whether the captain position’s elimination was an ad-
ministrative or legislative act.
42 No. 10-1389
The district court did not err in finding that legislative
immunity protected Governor Blagojevich’s veto of the
captain position’s funding, nor did it err in finding that
the former captains waived their claim against the other
non-Blagojevich defendants “by making no real argu-
ment on the claim.”
B. Seniority Decision
The former captains raise three areas of evidence to
support their argument that the district court improperly
found that there was insufficient evidence of causation
on whether the seniority decision was retaliatory: (1) that
state officials agreed to read the CBA language in contra-
vention to what it says in an effort to punish the
former captains; (2) that AFSCME officials’ contact with
a Blagojevich administration official and Curry’s con-
versations with a CMS official suggest that defendants
influenced the seniority decision; and (3) that the
district court ignored the battle between AFSCME and
ISEA over representing the captains.
When IDOC eliminated the captain position, 64 former
captains took correctional officer positions. AFSCME
opposed giving seniority credit to the former captains for
the time the former captains spent in the officer’s RC-6
bargaining unit. AFSCME argued that the RC-6 CBA
determined seniority based on their “continuous length
of service,” even though the CBA does not include the
word “continuous” in explaining the seniority calcula-
tion. The RC-6 CBA states (emphasis supplied):
No. 10-1389 43
Seniority for RC-6 and 9 shall, for the purposes
stated in this Agreement, consist of the length of
service of an employee with their department in an
AFSCME bargaining unit(s), except when a previ-
ously excluded position enters a bargaining unit
pursuant to labor board procedures, seniority for
an employee in that position shall consist of the
employee’s total length of service with their depart-
ment.
IDOC refused to change its plans so AFSCME filed a
grievance that proceeded to CMS. CMS determined that
the state’s position was not viable. AFSCME and IDOC
entered an agreement on November 18, 2003, that stipu-
lated that the former captains demoted into the RC-6 unit
would receive seniority based on “their length of the
continuous service . . . beginning with their most recent
return to the RC-6 AFSCME bargaining unit.” The former
captains allege that state and AFSCME officials agreed
to read “continuous” into the CBA to harm them.
Yet the agreement to read “continuous” into the CBA
language was not so unreasonable as to suggest an
attempt to harm the former captains. The language
taken as a whole suggests that “length of service” essen-
tially means “continuous length of service” because
the same provision calculates another group of employ-
ees’ seniority based on “the employee’s total length of
service with their department.” Without reading the
term “continuous” into the first category, the term “total”
in reference to the second category becomes redundant.
The former captains also do not contest that the provi-
44 No. 10-1389
sion has been interpreted to read “continuous length of
service” in previous situations. The AFSCME defendants
also presented evidence that AFSCME proposed the
provision to prevent non-bargaining unit employees
moved back into the unit from receiving prior service
credit. Previously, existing members were laid off
because they accrued less total seniority than former
management employees. Plaintiffs’ only argument
against this evidence is that the agreement’s “clear lan-
guage” contradicts this reading. The provision’s alleged
clarity aside, plaintiffs do not contest AFSCME’s rea-
sons for proposing the provision.
That the provision governing the seniority calculation in
the CU-500 bargaining unit (covering lieutenants) includes
the phrase “continuous” does not control the reasonable-
ness of the interpretation of the RC-6 CBA language. The
CU-500 CBA states (emphasis supplied):
Seniority shall, for the purpose of layoff and recall,
be continuous service as currently defined and
administered by the Rules of the Director of Cen-
tral Management Services. Seniority for all other
purposes shall be the continuous length of service in
the affected employee’s classification, except that
employees employed in the CU-500 bargaining
unit as of July 1, 1989, shall have his/her length of
service prior to July 1, 1989, whether continuous or
not, in his/her affected classification counted
toward his/her seniority.
The CU-500 CBA seniority calculation turns on the
phrase “continuous,” while the RC-6 CBA seniority
No. 10-1389 45
calculation turns on the phrase “total.” The RC-6 CBA
determines seniority on whether the employee’s length of
service is either “the employee’s total length of service” or
simply “the length of service of an employee.” The CU-500
CBA determines seniority by either the length of service
“whether continuous or not” or “the continuous length
of service.” That two contracts use different words
to delineate the seniority calculation—and that CMS
eventually agreed with an interpretation favoring
AFSCME—does not provide sufficient evidence that
reading the CBA language in AFSCME’s favor was an
effort to harm the former captains.
The former captains cite a meeting AFSCME official
(and appellee) Henry Bayer had with Blagojevich’s chief
of staff Alonzo Monk to discuss the seniority issue. Bayer
testified that the issue was “a very, very hot issue for us”
because “these people were going to be coming into
our bargaining unit and bringing in seniority, which
might potentially enable them to bump one of our mem-
bers who has weekends off.” Bayer’s deposition sug-
gests that he met with Monk to protect the interests of
existing AFSCME members. Nowhere does Bayer indicate
that he met with Monk to punish the former captains.
Bayer also testified that CMS chief counsel for labor
relations Nancy Pittman made the decision on how to
interpret the CBA and that he could not get Curry
to change the administration’s position on the seniority
issue.
The former captains point to Curry’s acknowledg-
ment that she spoke to Pittman about the grievance as
46 No. 10-1389
evidence that CMS did not act independently. But
nothing about Curry’s testimony suggests that she influ-
enced Pittman. Curry said she talked to Pittman about
the grievance to get information about the case’s
progress and the ultimate decision. Curry testified that
Pittman resolved the grievance on her own and “on the
merits of the case.” The former captains argue that if
CMS acted independently, Curry would have had “no
reason” to talk to CMS. The former captains overstate a
meeting’s significance. As deputy chief of staff, Curry
oversaw a review of Illinois agencies’ organizational
structures. Curry worked with IDOC personnel directors
in 2003 to identify IDOC positions to eliminate and con-
solidate. There are many reasons for Curry to meet with
Pittman but there is no evidence that Curry met
with Pittman to influence her decision.
The former captains only briefly mention their claim
against the AFSCME officials. Because the former
captains sued the AFSCME officials in their individual
capacities, the former captains had to prove that the
AFSCME officials were “willful participant[s] in joint
action with the State or its agents.” Dennis v. Sparks, 449
U.S. 24, 27 (1980); accord Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982) (holding that a person could be a
state actor “because he has acted together with or has
obtained significant aid from state officials”).
AFSCME and ISEA’s competition to represent the
captains is not sufficient evidence that the AFSCME
officials’ communications with state officials regarding
the seniority issue were retaliatory. The former captains
No. 10-1389 47
argue that AFSCME “went as far as to file intervention
petitions seeking to represent the Captains” demonstrating
“the history of the battle over who would represent the
Captains.” But the former captains do not cite evidence
that a desire to harm the former captains motivated
the AFSCME officials. The evidence indicates that
AFSCME officials acted to protect existing members. The
former captains’ reply brief argues that a quid pro
quo existed because AFSCME’s financial support of
Blagojevich’s campaign meant that it “wanted some-
thing in return.” We can reasonably infer that AFSCME
expected something in return for its campaign contribu-
tions, but that alone does not reasonably lead to the
inference that what AFSCME officials wanted in return
was retaliation against the former captains.
The former captains allege that the AFSCME officials
“engaged in a conspiracy with the State Officials” based
on Bayer’s communications with state officials and “the
resolution of the union grievance against” the former
captains. Communications with state officials and a com-
plaint’s resolution against the former captains but in
favor of existing AFSCME members is not sufficient
evidence to demonstrate a conspiracy. The former
captains fail to cite any evidence suggesting that a desire
to punish the former captains motivated the AFSCME
officials’ actions. The AFSCME officials’ communications
with state officials and the resolution of the grievance
in AFSCME’s favor certainly suggest that the AFSCME
officials attempted to influence state officials, and per-
haps their efforts caused the state officials to resolve
the grievance in their favor. But that is where the reason-
48 No. 10-1389
able inference ends. The former captains failed to show
that a genuine dispute exists regarding the AFSCME
officials’ intent in influencing state officials.2
IV. Conclusion
We A FFIRM the district court’s judgment.
2
Because we find that the AFSCME officials’ conduct did not
constitute state action, we do not address the AFSCME offi-
cials’ arguments that they are immune under the Atkinson
doctrine, see Atkinson v. Sinclair Ref. Co., 370 U.S. 238, 247-49
(1962), or the Noerr-Pennington doctrine. See United Mine
Workers of Am. v. Pennington, 381 U.S. 657, 670 (1965); E. R.R.
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,
140-45 (1961).
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