Jonathan Bilyk Apr. 8, 2014, 11:47am

A federal judge has allowed two Cook County correctional officers to proceed with their claim that Sheriff Tom Dart allowed supervisors to fabricate disciplinary cases against them in retaliation for their political support of his opponent in the last election.

U.S. District Court Judge James B. Zagel on April 3 denied a request from the Cook County State’s Attorney’s Office, which is representing Dart and the other named defendants from the sheriff’s office, to dismiss the suits brought by plaintiffs Ivan Hernandez and Gene Michno.

Zagel specifically denied the county officials’ motion to dismiss the correctional officers’ claims regarding political retaliation and constitutional free speech rights. He did, however, grant their requests to throw out the plaintiffs’ claims under the Illinois Whistleblower Act.

The case stems from actions against Dart and other employees at the sheriff’s office brought in 2007 by Hernandez and Michno, who had worked in department since the late 1990s.

At that time, the two correctional officers alleged supervisors answering to Dart had targeted them and other employees after they had supported Richard Remus, the correctional officers’ former supervisor, against Dart, the eventual winner of the election for Cook County Sheriff in 2006.

The officers alleged they had been effectively demoted, transferred to less desirable positions and divisions, and investigated for potential wrongdoing by Dart’s appointees, despite “exemplary” careers to that point.

In October 2013, the plaintiffs added a two-count whistleblower complaint against Dart, the sheriff’s office, the county and other named defendants who work within the sheriff’s office. They alleged supervisors within the office created disciplinary cases against them – first, against Michno in October 2011, and then against Hernandez in May 2012 – to justify their termination.

The plaintiffs assert these disciplinary charges are false, and were taken in retaliation for filing the original civil rights lawsuit. Their suits were consolidated for pretrial proceedings.

In December 2013, the county’s attorneys, led in this instance by Cook County Assistant State’s Attorney James C. Pullos, moved to dismiss the allegations brought under the state's Whistleblower suit, asserting the plaintiffs could not support the claim.

Specifically, the county’s attorneys argued that the plaintiffs could not prove Dart “personally participated in any First Amendment retaliation” against them, or that the adverse actions taken against them were the result of an “official custom, policy or practice” within the sheriff’s office.

In its motion seeking dismissal, the county also argued the defendants named in the suit couldn't be considered “employers” under state law.

Zagel, in his recent ruling, agreed with the county that the plaintiffs could not continue with their whistleblower claim against the other named defendants for the reasons argued by the county.

However, Zagel said he – in “a very close call” – determined Michno and Hernandez could lay out a plausible case establishing they were “exemplary employees” who were unjustly singled out for retaliation by officials appointed by Dart, following his win against the candidate the plaintiffs supported – and that Dart did not do anything about it.

The judge noted later proceedings may demonstrate “lawful reasons” for the “adverse treatment” alleged by Michno and Hernandez.

But for now, Zagel said the correctional officers’ complaints had cleared this early legal hurdle, barely, and they would be allowed to continue with their action against Dart, as the “final policy-making authority” in the sheriff’s office.

“The asserted fact that plaintiffs (Michno and Hernandez) were exemplary employees may be convincingly rebutted,” Zagel wrote. “But at this stage, plaintiffs’ allegations are sufficient.”

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