Irby-First Amended Complaint
Irby-First Amended Complaint
Irby-First Amended Complaint
CEDRIC IRBY )
)
Plaintiff, )
)
v. ) Case No. 21 L 0077
)
METRO EAST SANITARY DISTRICT, )
METRO EAST SANITARY DISTRICT )
BOARD OF COMMISSIONERS and, )
RICK FANCHER, individually and as )
agents of Metro East Sanitary District, )
)
Defendants. )
COMES NOW, Plaintiff Cedric Irby by and through his attorneys Loftus & Eisenberg,
Ltd., and for his cause of action against Defendants, states as follows:
1. The Metro East Sanitary District (“MESD”) is tasked with maintaining a complex
system of levees designed and built by the U.S. Army Corps of Engineers to protect thousands of
lives, homes, and jobs from potentially catastrophic floods. Accordingly, it is imperative that those
trusted with its operation are employed based on their merit. Unfortunately, the MESD has long
made employment decisions based on political affiliations at great risk to those living within its
jurisdiction and detriment of public trust in the government and morale of government employees.
2. Plaintiff Cedric Irby brings this lawsuit to rectify the injustice of political patronage
not only to him, but to the people living in the MESD’s boundaries. Irby, who was hired by and
associated with a Republican administration, was terminated from the MESD without cause,
notice, or opportunity to be heard, at the same meeting at which a new Democratic Executive
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Director was appointed by a newly Democratic-controlled MESD Board of Commissioners, in
violation of not only his employment contract, but his First and Fourteenth Amendment Rights.
3. The Supreme Court has long held that no matter the prevailing political party, “[t]o
the victor belong only those spoils that may be constitutionally obtained,” and many public
employment decisions based on party affiliation are unconstitutional. Rutan v. Republican Party,
497 U.S. 62, 64 (1990) (Republican patronage; citing Elrod v. Burns, 427 U.S. 347 (1976)
(Democratic patronage)). But as detailed in the Illinois Reform Commission’s 2009 Report,
“widespread abuse involving patronage hiring” remains. As Governor JB Pritzker noted in his
2020 State of the State Address, “[t]he old patronage system needs to die, finally and completely.”
4. Venue is proper in this court because this action involves the making and
performance of a contract with a public entity principally located in this county and the majority
of complained of acts were committed in this county, over which this Court has jurisdiction. 735
The Parties
5. Defendant Metro East Sanitary District (MESD) is a non-home rule Illinois sanitary
district formed pursuant to the Sanitary District Act of 1917, 70 ILCS 2405/0.1 et seq., and
organized under the Metro-East Sanitary District Act of 1974, 70 ILCS 2905 et seq., for the
purpose of developing, constructing, and maintaining hundreds of miles of ditches, levees, and
drainage systems for the Metro East area (the “District”), which includes Madison and St. Clair
Counties. The MESD is headquartered at 1800 Edison Avenue in Granite City, Illinois, and as of
December 2019 had a combined fund balance of $8,107,933, with the majority of revenue obtained
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from property taxes. The MESD owns approximately 2,776 acres and employs approximately 45
full-time employees. The MESD can sue and be sued in that name.
the “Board”) governs and operates Defendant MESD and has the authority to adopt, enforce, and
monitor all policies for the management and governance of the District. 70 ILCS 2905/3-1; 70
ILCS 2905/3-5.
7. Defendant Rick Fancher has served as the Executive Director of the MESD since
January 21, 2020. 70 ILCS 2905/4-2. During all relevant times, Defendant Fancher acted under
8. At all times herein relevant, Plaintiff Irby resided in Glen Carbon in Madison
County, Illinois. Irby has dedicated his life to public service. After serving three years in the army,
Irby was discharged as a Specialist 4. He then served sixteen years as a correctional officer and
sergeant, thirteen years as Deputy Juvenile Officer, and about nine years as a public special
education school teacher. He worked for Defendant MESD from June 2018 until January 21, 2020.
Factual Allegations
9. The MESD regularly hires employees based on their party affiliation to the
detriment of the District. As State Representative Charlie Meier noted in a May 29, 2019,
statement, “for thirteen of the last sixteen years, MESD was operating under a deficit. It was
drowning in debt for years while the politically connected failed to make the necessary repairs to
10. The MESD has come under fire for its patronage hiring. A recent complaint alleges
that the MESD replaced Bob Shipley with Stephen Adler as executive director, and superintendent
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Walter Greathouse, Jr., with Doug Hulme “based on political affiliations” in 2017. Dunham v.
MESD et. al., No. 2020 L 001545, ❡❡ 4-5 (Cir. Ct. Mad. Cty. Nov. 2, 2020.) Defendant Fancher,
then maintenance superintendent for Madison County, “personally promised” the plaintiff that he
“would get his job back at MESD” once the Democratic Party regained control of the MESD. Id.
❡ 8.
11. The Executive Director is chief executive and administrative officer of the District.
70 ILCS 2905/4-2.
12. In 2018, Irby submitted a job application to the Madison County Administrative
Services Office in response to a public job posting. Based on his application, experience, and
multiple interviews, Administrative Services suggested Irby would be a good fit for an open
position at the MESD. Irby had not previously been involved in local political activities and did
not know anyone who worked for the MESD at the time.
13. On or about June 27, 2018, Adler hired Irby as a St. Clair County Deputy
Superintendent.
14. On or about January 17, 2019, Adler promoted Irby to St. Clair County
Maintenance Superintendent, and they entered into an employment agreement, attached as Exhibit
16. Early in Irby’s employment at MESD, Irby’s foreman, Scott Hilmlan, told Irby that
he believed the MESD had only hired Irby because Irby was a “Black Republican.”
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19. On or about December 17, 2019, the MESD Board approved a 3% compensation
20. On or about December 31, 2019, the MESD Board voted unanimously to replace
21. The Board then entered into an employment agreement with Economy.
22. The agreement provided Economy “the contractual and legal authority to enter into
written employment contracts to employ a management team to support the operations of the
Metro East Sanitary District, including but not limited to the positions of Assistant Executive
23. The agreement further provided Economy “the sole and absolute authority to select
his management team, set their salaries, benefits and all other terms and conditions of their
Commissioners shall be legally bound to honor and abide by all such employment contracts the
Employee enters into with any member of his management team and the Board of Commissioners
shall not have any legal right or authority to terminate, alter, modify or overturn the Employee’s
decisions related to his selection, compensation, benefits and all other terms and conditions of
24. The next day, January 1, 2020, an Illinois law that limited MESD’s executive
25. Economy then entered into an employment contract with Adler to become Chief
Deputy Executive Director and with Donald Sawicki as Deputy Executive Director.
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26. Economy presented Irby with a new employment contract offering Irby an annual
salary of $85,457.66 in addition to performance bonuses. The new term would run through
December 31, 2021, and would permit early termination only in specific circumstances, and
provided for 20 weeks’ severance unless Irby was terminated for misconduct.
27. On or about January 16, 2020, Irby signed that employment contract and began
performing under that contract. A true and accurate copy of the contract is attached as Exhibit B
29. On or about January 21, 2020, the MESD replaced Economy with Fancher as
Executive Director and discussed the implications of that termination on Economy’s contract in
Executive Session.
30. According to the minutes of the January 21, 2020 MESD meeting, Fancher’s “First
order of business would be to remove Steve Adler, Don Sawicki and Cedric Irby as employees.”
The Minutes do not provide any reason for the termination of the three employees. The Board
unanimously concurred with Fancher’s employment decisions upon a roll call vote.
31. The same day, Fancher requested Irby report to the main MESD office to turn in
his keys, truck, and cell phone. Fancher informed Irby that the MESD board would make a final
32. The MESD failed to pay Irby any severance owed under the employment
agreement. Ex. B § 6.
33. Fancher replaced Irby with Hillman (Irby’s former foreman), who is involved with
the Granite City Township Democratic Precinct Committeemen. Hillman’s annual salary was
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34. Fancher has previously run for office as a member of the Democratic party and
formed a political committee, Friends of Rick Fancher, for that purpose. He is active in the Granite
35. Irby does not identify with any political party but has made publicly reported
contributions to Republican candidate Kurt Prenzler, whose campaign website seeks donations to
36. Adler has previously run for office as a member of the Republican Party and formed
37. On information and belief, Sawicki identifies as a Republican and would have
38. The wrongdoing described herein and which led to Plaintiff’s injuries stem from
39. Said violations were the result of what is believed to be MESD widespread practice
of political patronage, which rewards supporters with promotions and jobs within MESD and
punishes those who do not agree with the prevailing political party.
40. The violations that caused Plaintiff’s injuries and the claims set forth in this
Complaint were also the result of MESD’s failure to intervene to prevent its Executive Director
41. MESD’s failure to train, supervise, and discipline its officers and employees
effectively condones, ratifies, and sanctions the kind of misconduct alleged herein.
42. Constitutional violations such as those that occurred in this case are encouraged
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Plaintiff’s Damages
43. As a direct and proximate result of the misconduct herein described, Plaintiff lost
his employment and benefits as an employee of MESD, as well as suffered the embarrassment,
Count I
BREACH OF CONTRACT
45. Plaintiff Irby restates and incorporates paragraphs 1 through 44 of this Complaint
46. MESD offered Irby employment as described in definite and certain terms in
Exhibit B.
47. Irby accepted that offer and signed the contract on or about January 16, 2020.
48. In consideration for the agreement, Irby began to perform under that contract in
50. MESD breached that agreement by, among other things, terminating Irby on or
about January 21, 2020, in violation of Section 5 of that agreement, which permits early
52. As a direct and proximate result of that breach, Irby has suffered damages, as
described above.
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Count II
First Amendment Violation Under Section 1983
(vs. FANCHER, Individually, and as an agent of Defendant MESD)
53. Plaintiff restates and incorporates paragraphs 1 through 44 of this Complaint as if
54. Section 1983 provides for a civil action against “every person who, under color of
any statute, ordinance, regulation, custom, or usage ... subjects or causes to be subjected any …
person ...to the deprivation of any rights, privileges, or immunities secured by the Constitution and
55. Defendant Fancher, acting under color of state law as Executive Director of the
56. Defendants offered no explanation for terminating Irby despite being contractually
required to do so.
57. Defendants terminated Irby, along with Adler and Sawicki, for identifying with the
58. Patronage practices, under which “public employees hold their jobs on the
condition that they provide, in some acceptable manner, support for the favored political party,”
are prohibited by the First and Fourteenth Amendments. Elrod v. Burns, 427 U.S. 347, 359 (1976).
“The threat of dismissal for failure to provide that support unquestionably inhibits protected belief
and association, and dismissal for failure to provide support only penalizes its exercise.” Id.
requirement for the effective performance of the” Superintendent position. Branti v. Finkel, 445
60. Irby’s position did not substantially entail “the making of policy and thus the
exercise of political judgment.” Allen v. Martin, 460 F.3d 939, 944 (7th Cir. 2006).
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61. Irby’s position did not “g[i]ve them access to their political superiors’ confidential,
62. Although his position was primarily ministerial, the discretion that Plaintiff did
exercise was channeled by professional, rather than political norms. Riley v. Blagojevich, 425 F.3d
63. The MESD Board knew about the unconstitutional termination and took no steps
to intervene.
64. As a direct and proximate result of the wrongdoing of Defendant Fancher, Irby has
Count III
Due Process Violations Under Section 1983
(vs. FANCHER, Individually, and as an agent of Defendant MESD)
66. Irby had a protected property interest in his continued employment at the MESD
through December 31, 2021, under his employment contract. (Exhibit B.)
67. Plaintiff was denied adequate notice of the charges against him, an explanation of
the evidence, and an impartial hearing with the opportunity to explain his side of the story.
68. Plaintiff was denied a pre-termination opportunity to address any asserted grounds
69. Plaintiff was denied notice that his termination would be considered at the Board
hearing on January 21, 2020; adequate explanation of the charges against him; and an impartial
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70. Defendant Fancher, under color of law, was personally involved in the denial of
Count IV
Illinois State Law Claim for Retaliatory Discharge
(vs. FANCHER, Individually, and as an agent of Defendant MESD)
72. Defendant Fancher discharged Plaintiff in retaliation for Plaintiff exercising his
73. Said retaliation is in direct conflict with Illinois Constitution Art. I, Secs. 2, 4-5,
74. Defendant Fancher was acting as an agent of Defendant MESD when he terminated
Irby’s employment.
sustained and continues to sustain damages, including lost wages, impairment of future earning
capacity, lost benefits, emotional distress, humiliation, personal indignity, and injury to his
reputation.
1. Enter a judgment in his favor and against Defendants jointly and severably;
2. Order Plaintiff’s reinstatement with full seniority and benefits, retroactive to the
3. Award Plaintiff make-whole relief including: (1) back pay and all benefits to
compensatory damages for his humiliation and mental and emotional distress; (3)
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punitive damages against the individual defendants; (4) interest on compensatory
damages at a rate set by law; and (5) costs and attorney’s fees; and
4. Grant Plaintiff such other and further relief as this Court deems just and proper.
JURY DEMAND
Respectfully Submitted,
CEDRIC IRBY,
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Exhibit A
Exhibit B
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