author: NEALON, Chief Judge.

text:
    Elizabeth GOBLA, Plaintiff, v. CRESTWOOD SCHOOL DISTRICT, et al., Defendants.
    Civ. No. 82-0699.
    United States District Court, M.D. Pennsylvania.
    Feb. 1, 1985.

      Francis G. Wenzel, Jr., Ralph E. Kates, III, Griffith, Aponick & Musto, Wilkes-Barre, Pa., for plaintiff.
    Harry P. Mattern, Joseph B. Farrell, Wilkes-Barre, Pa., for defendants.
   MEMORANDUM AND ORDER

NEALON, Chief Judge.

This action was originally filed by the plaintiff on June 4, 1982, in which she alleged violations of 42 U.S.C. §§ 1983, 1985 and the Pennsylvania Equal Rights Amendment pursuant to her discharge as a school teacher from the Crestwood School District. The plaintiffs dismissal hearing was held before the Crestwood School Board on October 3 and 9, 1978 in which she was charged with thirty-five counts of insubordination. On November 2, 1978 she was formally discharged for having violated the school laws of the Commonwealth of Pennsylvania. The Secretary of Education sustained the dismissal and, in the process, made thirty-two findings of fact, twenty-three of which detail acts and omissions by the plaintiff which rise to the level of negligence and persistent and willful violation of the school laws. The plaintiff then appealed her dismissal to the Commonwealth Court of Pennsylvania alleging that, because of some of the incidents charged in the October 1978 dismissal proceedings occurred prior to an earlier March 1978 suspension hearing, those incidents could not form part of the basis for her dismissal. These items, she contended, constituted unlawful double punishment for the same conduct. The Commonwealth Court concluded, however, that the Order of the Secretary of Education must be affirmed absent findings of violation of constitutional rights, abuse of discretion, error of law, or unsupported findings of fact. The plaintiff then filed the present action here, alleging different reasons for her discharge, i.e., constitutional and federal statutory violations. In this action the plaintiff suggests that the reasons given for her dismissal in the administrative hearings were pretextual and that the real reasons contravene her rights under the Equal Protection Clause and the First Amendment of the United States Constitution.

On February 2, 1984, the defendants filed a Motion for Summary Judgment and brief in support thereof alleging the plaintiff has not stated constitutionally cognizable claims against the defendants. The plaintiff filed an Opposition Brief dated February 10, 1984 and the defendants filed a Reply Brief on February 24, 1984. After consideration of the defendants’ motion, the court permitted both parties to file supplemental briefs. The defendants filed their supplemental brief on August 30, 1984 and plaintiff filed her supplemental brief on October 1, 1984. After a subsequent conference in Chambers with all parties, the motion is now ripe for disposition. The motion will be denied for the reasons set forth below.

There are basically three broad issues the court will address: (1) the First Amendment issue — whether the “outspokenness,” which plaintiff claims led to her discharge, is protected speech and is actionable; (2) the equal protection issue — whether § 1983 can be the basis for a sexual harassment/sexual discrimination claim; and (3) the conspiracy issue — whether Principal Theodore Geffert, Superintendent William Smodic and Assistant Principal Mary Redgate conspired to do something “illegal.” Preliminarily, a review of plaintiff’s complaint, Document No. 1 of the Record, indicates that she alleges she was exercising her constitutional rights of free speech and assembly in order to evaluate the ability, competency and experience of the Crestwood School Board, its members and other defendants, when she was terminated. She also maintains that defendants considered her to be an opinion leader within the union. As a result of exercising her rights, plaintiff contends she was arbitrarily terminated and that the defendants’ actions were taken in bad faith by a plan to discredit her. The plan purportedly included filing false charges, securing false statements from alleged witnesses, harassment and a denial of due process. The complaint itself makes no mention of sexual harassment or sexual discrimination. Plaintiff also asserts she did not become aware a conspiracy existed until the deposition of Mary Redgate was taken subsequent to the commencement of this action.

FIRST AMENDMENT ISSUE

The leading Supreme Court case in the First Amendment area is Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). As a general rule, citizens do not relinquish all of their First Amendment rights when they become public employees. Id. However, the state “has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Id. at 568, 88 S.Ct. at 1734. Accordingly, courts must “arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interests of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. A school board may not dismiss an employee for criticizing school policies that are of public interest unless the speech contains knowingly or recklessly false statements, undermines the ability of a teacher to function, or interferes with the operation of the school. Id. at 568-72, 88 S.Ct. at 1734-37. See also McGee v. South Pemiscot School District, 712 F.2d 339, 342 (8th Cir.1983); Czurlanis v. Albanese, 721 F.2d 98,102 (3d Cir.1983); Monsanto v. Quinn, 674 F.2d 990, 993 (3d Cir.1982).

In Trotman v. Board of Trustees, 635 F.2d 216, 224-25 (3d Cir.1980), cert, denied, 451 U.S. 986, 101 S.Ct. 2320, 68 L.Ed.2d 844 (1981), the Court of Appeals reviewed the three step process usually required in examining a public employee’s claim of retaliation for engaging in protected activity. See also Monsanto v. Quinn, supra; and Czurlanis v. Albanese, supra. First, the plaintiff must show that the activity in question was protected. See Pickering v. Board of Education, supra. If successful in demonstrating that the activity was protected, the plaintiff must then show that the activity was a substantial or motivating factor in the decision or action taken against her. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Lastly, the defendant has the opportunity to defeat the plaintiff’s claim by demonstrating that the same action would have been taken even in the absence of the protected conduct. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697-98, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. at 287, 97 S.Ct. at 576.

Initially, in determining whether a motion for summary judgment by the defendant is meritorious, the court must begin with an inquiry of whether Mrs. Gob-la’s speech was protected. To decide that issue, we must first ascertain whether the speech dealt with a matter of public concern. In Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983), the Supreme Court held that where public employee’s activity “cannot be fairly characterized as constituting speech on a matter of public concern,” it is unnecessary for the court to scrutinize the reasons for the plaintiff’s discharge or the disciplinary action. The Court continued, “[w]hen employee expression cannot be fairly considered as relating to any matter of political, social or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Id. Accordingly, the Court in Connick made an essential distinction between speech by a public employee “as a citizen upon matters of public concern” and speech by an employee “upon matters of only personal interest.” Id. at 147, 103 S.Ct. at 1690. Only when an employee speaks upon a matter of public concern is a federal court the appropriate forum “in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Id. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record.” Id. at 147-48, 103 S.Ct. at 1690-91.

In the case sub judice, we must examine each of Mrs. Gobla’s allegedly protected statements to determine whether any or all of them are protected, as defined by the Court in Connick. Mrs. Gobla appears to argue that due to her “outspokenness” a campaign developed by the defendants Geffert and Smodick to insure her eventual discharge. She alleges she went to the Superintendent to discuss possible kickbacks to Mr. Geffert with regard to school ring purchases. Also, that she argued with the administration over the proper course for a rape victim’s rehabilitation, and that she was open and defiant as to school policies which she did not support. Finally, that newspaper articles were published by local papers in which she openly disagreed with school policies.

It appears that while some of Mrs. Gob-la’s allegations involve merely employee grievances, she alleges at least two matters which are arguably matters of public importance, i.e., purported kickbacks on the sale of class rings and the newspaper articles in which she aired several grievances. The other issues raised by Mrs. Gobla are clearly in the same vein as those raised in Connick and constitute unprotected speech. In Connick, the plaintiff, a former assistant district attorney unhappy about a transfer, contended she was dismissed for compiling and distributing a questionnaire to her coworkers concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors and whether employees felt pressure to work in political campaigns. With the exception of the last issue, the court held the questions posed by the plaintiff did not fall within the realm of matters of public concern. 461 U.S. at 148, 103 S.Ct. at 1690. The court further explained:

[Plaintiff] did not seek to inform the public that the district attorney’s office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did [she] seek to bring to light actual or potential wrongdoing or breach of public trust on the part of the [district attorney] and others____ The questions reflect one employee’s dissatisfaction with the transfer and an attempt to turn that displeasure into a cause celebre.

Id.

Unlike Connick, the plaintiff in Czurlanis, supra, alleging he was suspended in retaliation for making a speech at a county board meeting, was found to have a protected First Amendment right. 721 F.2d at 107. Czurlanis, a senior mechanic at the Westfield Garage, addressed the board on precisely the questions which the Court in Connick noted were not the subject of plaintiff’s speech there, i.e., whether county officials in the Division of Motor Vehicles were discharging their governmental responsibilities. Id. at 104. He sought to bring to light actual or potential wrongdoings or breach of public trust on the part of these officials. Czurlanis spoke as a concerned citizen and taxpayer and not as an aggrieved employee. The Court of Appeals explained that “[t]he fact that Czurlanis became aware of the matters which he raised at the board meeting through his employment with the county does not make these matters any less issues of public concern.” Id. Therefore, they determined the speech in question approximated that in Pickering.

After determining the speech at issue relates to a matter of public concern we must also conduct the balancing as explained in Pickering. Among the factors considered relevant in determining whether the speech related to an important public matter the Supreme Court in Pickering noted:

The question whether a school system requires additional funds is a matter of legitimate public concern____ On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of the community most likely to have informed and definite opinions as to how funds allocated to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

391 U.S. at 571-72, 88 S.Ct. at 1736. However, in considering whether the impact of the speech was unacceptably disruptive, the Court looked to the following factors: (1) whether the speech interfered with the maintenance of “either discipline by immediate superiors or harmony among coworkers,” id. at 570, 88 S.Ct. at 1735; (2) whether the speech was critical of superiors with whom the speaker maintained “the kind of working relationship for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning,” id.; (3) whether the speech impeded the employee’s proper performance of his duties, id. at 572, 88 S.Ct. at 1736 and (4) whether the speech interfered with the regular operation of the office generally, id. at 573, 88 S.Ct. at 1737. See also Monsanto v. Quinn, 674 F.2d at 997, (the Third Circuit Court of Appeals determined that “a holding that a public employee’s comments about the operation of a department with which s/he is intimately familiar are not protected speech would inhibit and discourage divulgence of information which elected officials, the press and the public need to uncover and eliminate waste and inefficiency.”); Trotman v. Board of Trustees, 635 F.2d at 230, (the Third Circuit Court of Appeals looked to whether there had been material and substantial disruption and stated that in an academic environment, a restraint on “protected activity can be sustained only upon a showing that such activity would ‘materially and substantially interfere with the requirement of appropriate discipline in the operation of the school.’ ”).

In Mrs. Gobla’s situation, the defendants do argue that the plaintiff’s “insubordination” and defiance of the rules resulted in destruction of the working relationship necessary between a teacher and principal. However, it appears that Mrs. Gobla’s statements of fraudulent kickbacks being received by Mr. Geffert is a matter of substantial public interest. Additionally, Mrs. Gobla’s allegations in the two newspaper articles of March 15 and 16 of 1978 charging the district with “misusing students, with failing to attend to important matters and with mounting a long-term campaign of harassment against her because, in her words, ‘they want my job’ ” are also matters which balance in favor of tipping the scales in favor of protected speech. Therefore, at least those activities could not permissibly furnish the basis for a retaliatory discharge.

The second step of the three step process must be an evaluation of whether the protected activity was a substantial or motivating factor in the school board’s decision to discharge the plaintiff. See Mt. Healthy City School District Board of Education, supra. The Supreme Court in Mt. Healthy explained:

The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.

429 U.S. at 285-86, 97 S.Ct. at 575-576. See also Monsanto, 674 F.2d at 999-1000. The plaintiff clearly asserts, through affidavits and other exhibits, that she was discharged at least to a large extent because of her “outspokenness.” Therefore, she has satisfied the second step of the analysis for summary judgment purposes.

Pursuant to the last step in the analysis, the defendants have argued that Mrs. Gobla’s discharge on the grounds of insubordination would have taken place even in the absence of any protected conduct. The record reveals that the reason given for plaintiffs termination was a long series of violations of the school rules. The plaintiff, on the other hand, argues that it was simply because of her “outspokenness” that she was discharged; that other teachers who had engaged in a substantial number of the same minor violations of the rules as she were not dealt with in the same manner. Consequently, a dispute appears to exist as to whether plaintiff, in fact, would have been terminated regardless of any constitutionally sheltered conduct. Since the resolution of the First Amendment issue depends upon a multitude of disputed facts, some of which may or may not be deemed relevant as the trial progresses, a motion for summary judgment on the question of protected speech cannot be granted.

SEXUAL HARASSMENT-SEXUAL DISCRIMINATION

Plaintiff also alleges that she was sexually harassed and/or discriminated against by Defendant-Principal Geffert. This began in December, 1973, according to plaintiff and continued at least until October of 1977. Principal Geffert flatly denies the comments that plaintiff alleges were made. Nevertheless, plaintiff persists in her claim that she may pursue a remedy pursuant to 42 U.S.C. § 1983.

Section 1983 does not provide a plaintiff with a substantive right but instead provides a remedy through which a plaintiff may vindicate alleged violations or deprivations of constitutional rights. It is well settled that claims of sex discrimination are cognizable under the Equal Protection Clause. See Woemer v. Brzeczek, 519 F.Supp. 517, 519 (E.D.Ill.1981) (citing Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971)). Further, “an equal protection claim arises when an individual contends that he [or she] is receiving different treatment from that received by other individuals similarly situated.” Skadegaard v. Farrell, 578 F.Supp. 1209, 1215 (D.N.J.1984). The defendants cite Huebschen v. Department of Health and Social Services, 716 F.2d 1167 (7th Cir.1983), for the proposition that plaintiffs cause of action is not cognizable under § 1983. In Huebschen, the court stated that “a person bringing an action under the Equal Protection Clause must show intentional discrimination because of the membership in a particular class and not merely because he or she was treated unfairly as an individual.” The Huebschen court was faced with a factual issue involving a male plaintiff who brought an action to recover damages for alleged sexual harassment perpetrated by his female supervisor in the course of his employment. The plaintiff argued that the relevant group or classification was male and that his supervisor would not have discriminated against him had he not been male. The reviewing court, however, stated that even when viewing the evidence produced at trial in the light most favorable to the plaintiff, the plaintiffs gender was merely coincidental to the supervisor’s action. The court found that when the affair between the plaintiff and the supervisor had ended, the supervisor did react spitefully and recommended that plaintiff be demoted. But the court found that the motivation of the supervisor in recommending demotion was not because plaintiff was a male, but rather was because he was a former lover who had jilted her. “Thus the proper classification, if there was one at all, was the group of persons with whom [the supervisor] had or sought to have a romantic affair.” Huebschen, supra, at 1172. The Huebschen Court distinguished Woemer v. Brzeczek, 519 F.Supp. 517, 519 (E.D.Ill.1981) because Woemer presented a classic case of sexual harassment.

In Woemer, a plaintiff-female police officer complained of sexual harassment consisting of embarrassing and belittling remarks made to her by the male defendant and other male officers. Because the plaintiff in Woemer had alleged a long and pervasive course of conduct that clearly constituted discrimination on the basis of sex, the court decided that it need not face the issue of whether individual actions such as the use of language like “that broad” might state a federally cognizable claim.

In Skadegaard, supra, a female state agency employee brought an action based on the Fourteenth Amendment claiming sexual harassment and retaliatory conspiracy for rebuffing her supervisor’s advances. After stating that an equal protection claim arose when an individual contends he or she was treated differently from others similarly situated, the court held plaintiff had stated a claim for relief by alleging she was intentionally treated differently from the male employees because of her sex.

Plaintiff Gobla has alleged a long and pervasive course of conduct which, if believed, may constitute discrimination on the basis of sex. See Document No. 122 of the Record. Examining the factual allegations of plaintiff and based upon Woemer, supra, and Skadegaard, supra, it cannot be determined that plaintiff, as a matter of law, is not entitled to any relief under § 1983 premised upon the Equal Protection Clause. The court believes that Woemer and Skadegaard are more analogous to the instant set of facts than Huebschen upon which defendants rely and the court is persuaded by the analysis in those cases.

In conclusion, plaintiff’s § 1983 Equal Protection claim may not be dismissed because the statements that plaintiff alleges were made to her and are denied by defendant, are factual issues, incapable of resolution on this motion for summary judgment. •

CONSPIRACY

Section 1985(3) provides, inter alia, that a person injured as a result of a conspiracy to deprive him of equal protection of, and equal privileges under, the laws, may have an action for damages against any one or more of the conspirators. Similar to § 1983, § 1985(3) does not create rights but is a remedial statute. In order to state a cause of action under § 1985(3), plaintiff must assert that defendants:

(1) conspired
(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws
(3) that the conspirators did, or caused to be done, any act in furtherance of the object of the conspiracy and that
(4) plaintiff was
(a) injured in his person or property or
(b) deprived of having and exercising any right or privilege of a citizen of the United States.

Great American Fed. Savings & Loan Assoc, v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971)).

Discriminatory conspiracies motivated by a sex-based animus are within the scope of § 1985(3). Skadegaard v. Farrell, 578 F.Supp. 1209, 1218 (1984). Our Court of Appeals stated in Novotny, 584 F.2d at 1243:

The fact that a person bears no responsibility for gender, combined with the pervasive discrimination practiced against women, and the emerging rejection of sexual stereotyping as incompatible with our ideals of equality convince us that whatever the outer boundaries of the concept, an animus directed against women includes the elements of a ‘class-based invidiously discriminatory’ motivation.

It is not necessary for plaintiff to allege all women were discriminated against, she need only show that she is a member of a discernable class within the remedial framework of § 1985(3) and that the animus giving rise to the conspiracy was based upon plaintiff’s membership in that group. Skadegaard, supra at 1220. While plaintiff must ultimately prove defendants were motivated by the “class-based invidiously discriminatory animus” rather than by a personal vendetta or attraction, id., she is entitled to the opportunity to establish this at trial.

Plaintiff alleges that Defendant-Principal Geffert in concert with other defendants conspired to effect plaintiff’s discharge. The conspiracy was motivated, according to plaintiff, because, inter alia, she would not accept Defendant Geffert’s “sexual insults to herself or her students____” Document No. 122 of the Record. Whether sexual comments were made, and as a result, a conspiracy arose to effectuate plaintiff’s discharge is a factual issue yet to be decided. Thus, the court cannot conclude, upon a motion for summary judgment, that defendant is entitled to judgment as a matter of law.

An appropriate Order will enter.

      . While the plaintiff does not allege sexual harassment in her complaint, the defendants have been adequately apprised of this claim during pretrial proceedings.

      . Of course, the assertion of kickbacks is merely an allegation at this stage of the proceedings. The court does not intend to create the impression that it is true.

      . The lateness of these assertions may, as defendants contend, cast doubt upon their validity but this is more appropriately for the fact-finders to weigh and evaluate.

      . The court assumes that plaintiff is advancing an Equal Protection claim.

      . The Woerner court noted that a lower threshold of discriminatory activity was necessary to state a cause of action under the Equal Protection Clause than would be required under Title VII. The court stated: "In Bundy v. Jaclcson, the Supreme Court had difficulty in determining whether sexual harassment that did not deprive a plaintiff of a tangible employment benefit constituted a violation under Title VII, mainly because Title VII makes unlawful only employment practices relating to ‘terms, conditions or privileges of employment____’ But the Equal Protection Clause has no such limitation.” Id. at 520 n. 5.

      . While the decision was reversed by the Supreme Court, the Third Circuit’s discussion of the scope of § 1985(3) is considered good law. Skadegaard, supra, at 1218-19 (citations omitted).


source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    James DUKES, Plaintiff, v. LOCAL 7-765, OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION and Stauffer Chemical Company, Defendants.
    No. 84 C 6365.
    United States District Court, N.D. Illinois, E.D.
    Feb. 19, 1985.

      William E. Elston, Jr., Chicago, Ill., for plaintiff.
    Barbara J. Hillman, Cornfield & Feldman, Richard H. Schnadig and Michael W. Duffee, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

James Dukes (“Dukes”) brought this suit under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, alleging that defendant Local 7-765, Oil, Chemical, & Atomic Workers International Union (“the Union”) failed to represent him adequately in grieving his May, 1982 discharge from the employ of defendant, Stauffer Chemical Co. (“Stauffer”). Before the Court is the Union’s motion to dismiss, which argues that Dukes did not bring this suit within the relevant statute of limitations, and that, in any event, the complaint fails to state a claim for relief. For the reasons stated below, we hold that the complaint is untimely, and on that basis alone we grant the Union’s motion to dismiss.

We must not grant this motion to dismiss unless it appears beyond doubt that Dukes can prove no set of facts entitling him to relief. See Hishon v. King & Spalding, — U.S. —, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). We must take as true, moreover, all material allegations of fact in the complaint. With these standards in mind, we consider Dukes’ complaint.

Dukes alleges that he worked for Stauffer for “a substantial period of time” until May 17, 1982, when Stauffer fired him. He claims that he was fired without just cause, in violation of the collective bargaining agreement between Stauffer and the Union, which allowed employee discharges for just cause only. Stauffer apparently claims that it fired Dukes for fabricating a reason for missing work one week before the discharge.

Dukes alleges that he made a “timely” demand on the Union to file a grievance on his behalf. We will assume that he made such a demand immediately following his discharge. However, he did not hear from the Union at all until January, 1984, some eighteen months after the discharge. A few months before that, on October 10, 1983, Dukes had written the Union for advice as to the status of his grievance. Dukes also apparently made some oral inquiries about his grievance. However, the complaint alleges, and Dukes’ brief also states, that his first communication with the Union about the grievance came in the October 10, 1983 letter.

On June 20,1984, the newly elected President of the Union, Carl Strange, told Dukes that a grievance had in fact never been filed on his behalf. Dukes filed this complaint one month later, on July 25, 1984. The complaint alleges that the Union violated its duty of fair representation, and that Stauffer breached the collective bargaining agreement by firing him without just cause.

Dukes and the Union agree that under DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 2282, 76 L.Ed.2d 476 (1983), the six month limitations period of § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), governs suits alleging unfair representation by Unions. Because we hold below that Dukes’ cause of action accrued before June 8, 1983, the day DelCostello was decided, we note that DelCostello applies retroactively to this case. Landahl v. PPG Industries, 746 F.2d 1312 (7th Cir.1984).

The Union argues that under its collective bargaining agreement with Stauffer, any grievance must be filed within ten days after the incident sparking the grievance. Thus, it concludes that the cause of action accrued on May 27, 1982, the last day the Union could have filed a grievance. Dukes does not dispute the existence or relevance of this ten- day provision, but argues that he made several inquiries about his grievance, that the Union led him to believe that it was processing his grievance, and that he did not learn about the Union’s failure to file his claim until June, 1984. He concludes that the cause of action did not accrue until then, when he actually learned of the Union’s inaction.

It might be that Dukes did not actually learn of the alleged breach until June, 1984, but the limitations period begins to run “when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.” Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir.1983) (citations and internal quotations omitted), cert, denied, — U.S. —, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984). We hold that Dukes should have discovered the Union’s violations long before June, 1984. According to the complaint he first inquired about the grievance on October 10, 1983, about I6V2 months after his discharge. A reasonably diligent employee would have at least inquired much sooner, certainly within six. months or even a year following the discharge. Had Dukes done so, and had the Union acted as if it had filed a grievanee, as alleged in the complaint, Dukes might have had a basis for arguing that the cause accrued much later or that the statute should be tolled. But Dukes slept on his rights far too long. The Union’s acts following the October 10, 1983 inquiry could not revive a claim that had long since expired.

This case is very similar to Metz. There also the Union failed to grieve the employee’s discharge, and the employee waited about thirteen months following the Union’s last action before filing her suit. 715 F.2d at 304. The Court held that she reasonably should have acted sooner to learn of the Union’s alleged violation of its duty to her. Id. Dukes has not tried to distinguish — and, we believe, cannot distinguish — Metz.

Accordingly, we will grant the Union’s motion to dismiss the claim against it. It follows that Dukes’ claim against Stauffer is also time-barred. Metz, 715 F.2d at 306. Thus, the complaint will be dismissed in total. It is so ordered.

      . In United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the Court held that the relevant state statute of limitations for actions to vacate arbitration awards should apply to an employee’s suit against his or her employer under § 301 of the LMRA. In Illinois a 90 day limitations period applies to such suits. Ill.Rev.Stat., ch. 10, § 112(b) (1983). Thus, Dukes' claim against Stauffer is time-barred. Stauffer did not raise this issue in a motion, but did so as an affirmative defense in its answer. Thus, it has not waived the limitations issue.

      . In light of this holding, we express no opinion on whether the complaint alleges a claim upon which relief could have been granted.


author: ROSZKOWSKI, District Judge.

text:
    Marvin L. FISHMAN, et al., Plaintiffs, v. ESTATE OF Arthur M. WIRTZ, et al., Defendants.
    Nos. 74 C 2814, 78 C 3621.
    United States District Court, N.D. Illinois, E.D.
    Feb. 21, 1985.

      Bruce S. Sperling, Chicago, Ill., Alan Clack, Racine, Wis., for plaintiffs.
    Donald Harris, Richard Levy, Chicago, Ill., for defendants.
    Laurence C. Hammond, Milwaukee, Wis., for Chicago Sports.
   ORDER

ROSZKOWSKI, District Judge.

Before the court are defendants’ (other than Atlanta Hockey, Inc.) and plaintiffs’ motions to amend the judgment order entered November 21, 1984. Defendants seek a reduction in the amount of the judgment order based upon this court’s June 28, 1984 findings of fact with respect to the parties’ actual and likely arena costs, 594 F.Supp. 853. Plaintiffs’ seek to increase the amount of the judgment order based upon certain mathematical errors in the computation of IBI’s opportunity costs. In addition, plaintiffs’ seek to correct certain typographical errors and amend the date from which post-judgment interest is to be calculated. For the reasons set forth herein, defendants’ motion is denied and plaintiffs’ motion is granted, in part, and denied, in part.

I. Defendants’ Motion To Amend

A. Background

This court previously held that plaintiff, IBI, was entitled to recover any economic benefits it would have enjoyed as a result of owning and operating the Chicago NBA franchise. In determining any likely economic benefits IBI would have derived from ownership, this court held it was reasonable to consider defendant, CPSC’s, actual experience in operating the franchise. With appropriate adjustments, this court concluded CPSC’s actual experience would provide a “yardstick measure” of IBI’s probable economic benefits from owning and operating the franchise.

Among the items considered by this court in determining the costs and expenses IBI would have incurred in owning and operating the franchise was the cost of renting an arena. After considering the parties’ probable arena costs, this court concluded there would have been no substantial difference in the amount paid by the parties’ for arena rental. Consequently, this court held arena expenses should not affect the yardstick measure of plaintiff, IBI’s, damages.

Defendants contend this court’s own findings of fact fail to support the decision not to adjust the yardstick measure of damages based upon arena costs. Instead, defendants’ contend this court’s findings of fact with respect to the parties’ relative arena expenses require a substantial downward adjustment. Specifically, defendants point to the following findings of fact:

1. “In the Spring and Summer of 1972, Elmer Rich, the president of CPBC, negotiated for a lease at the Chicago Stadium on behalf of IBI. At Marvin Fish-man’s instruction, Rich sought a lease with terms identical to the then current Bulls lease (“the Rich lease”). Fishman never asked Rich to negotiate any reduction in the Rich lease rent terms. He ... was willing to take a ten year lease on the rental terms in the lease.” (emphasis added).
2. “Under the Rich lease terms, CPBC paid 15% of the first $600,000 in net receipts, two graduated payments on net receipts between $600,000 and $800,000, and 25% of all net receipts over $800,-000.”
3. “[In return for a 16.9% equity position in the team], [Arthur] Wirtz ... entered into a ten year lease [with CPSC], which provided for a ten year waiver of all rent on receipts between $1,250,000 and $1,750,000.”
4. “... [T]here is nothing in the record which demonstrates that the term of a Fishman lease of the Stadium would have been ten years____ Had a lease shorter than ten years been agreed to ... it is quite possible that IBI would have experienced lower lease expenses than did CPSC. By 1980 the Rosemont Horizon was available and IBI could have insisted on a lower (i.e. competitive) rental at the Chicago Stadium. The rental savings to IBI for the ensuing two seasons alone could have been between $370,000 and $500,000.” (emphasis added).

Defendants contend the foregoing facts indicate IBI would have paid between $421,000 and' $560,000 more in lease expenses between 1972-73 and 1981-82. Defendants’ contention is based upon the fact that any rental savings brought about by the availability of the Rosemont Horizon in 1980-81 and 1981-82 (between $372,000 and $510,000) would have been more than offset by CPSC’s superior leasing arrangement with the Chicago Stadium between 1972-73 and 1979-80 (a difference of $932,-000 in favor of CPSC). Adding on the capital costs to IBI, defendants contend the yardstick damages should be, at a minimum, reduced between $584,000 and $601,-000.

Plaintiffs respond that the defendants have taken one example of “... how IBI might have paid less rent than CPSC for the 1980, and 1981 seasons ‘alone’,” and attempted to convert it into a series of findings. Plaintiffs, relying upon this court’s finding that “... there is nothing in the record which demonstrates that the term of a Fishman lease of the Stadium would have been ten years,” set forth several other examples of leasing arrangements which might have resulted in equal or lower lease payments by IBI. For example, plaintiffs point out that:

... IBI could have entered a one year oral lease on the same terms as the prior ‘Rich’ lease. Thereafter, IBI could have negotiated a four year lease on the same terms as the CPSC ten year lease; and then in 1978, using the leverage of the Horizon which was already under construction, could have negotiated a new ten year lease at the Stadium at a straight 15% (like the newest CPSC lease).

In addition, plaintiffs argue there are reasons other than the existence of the Horizon for believing IBI could have obtained an equal or lower lease arrangement. First, by charging IBI a higher amount than CPSC, plaintiffs contend “... Wirtz would have been breaching his fiduciary duty to [the Norris family, one half owners of the Stadium], by giving special lease terms to a tenant in which he held a personal ownership interest.” Second, since defendant, Wirtz’s, lease with CPSC was a means of extracting his “pound of flesh” for having “lined up the [NBA] votes to make [their] deal possible”, plaintiffs contend IBI may have received even a more favorable lease than CPSC.

B. Discussion

It is unquestionably difficult to estimate the hypothetical costs and expenses of a party who was wrongfully denied the opportunity to own and operate a franchise. This is extraordinarily true when one of the key expenses, arena rental, was controlled by one of the principal wrongdoers. There is no way of determining exactly what would have transpired.

Plaintiffs are correct in arguing that this court’s findings of fact cited simply one example of how the instant events might have transpired. This court did not find that IBI would enter into an eight or ten year lease to play in the Stadium. Moreover, this court did not find that IBI would negotiate a less favorable lease than CPSC. This court simply found that “[g]iven this uncertainty regarding whether IBI would have experienced greater or lesser lease expense, ... it is best not to adjust the yardstick for this factor.”

In concluding it was uncertain whether IBI would have experienced a lesser lease expense, this court did not, as defendants suggest, merely compare the savings of playing the 1980-81 and 1981-82 seasons at the Horizon with the “extra costs” of playing between 1972-73 and 1979-80 at the Stadium. Rather, the court merely found “[t]he rental savings to IBI for [the 1980-82] seasons alone could have been between $370,000 and $500,000.” (emphasis added) Unstated, as plaintiffs are quick to point out, is the fact that the approaching availability of the Horizon may have enabled IBI to negotiate, or renegotiate a more favorable Stadium lease than CPSC. Because of this uncertainty, this court declined to adjust the yardstick for arena rental and declines to do so here.

II. Plaintiffs’ Motion To Amend

A. Excess Opportunity Cost

Plaintiffs’ motion to amend, in part, addresses the accuracy of this court’s calculation of IBI’s “opportunity cost.” For the purposes of this motion, plaintiffs do not challenge the court’s decision to reduce IBI’s damages by the amount of the return it could have enjoyed on an alternative safe investment. Instead, plaintiffs simply challenge the figures upon which the calculations were based.

In resolving the issue of “opportunity cost”, this court held it was “... reasonable to use the amounts actually borrowed by CPSC for the acquisition and initial capitalization of the franchise as the best estimate of what IBI would have borrowed.” Moreover, this court found that IBI would have utilized the same pattern of using equity to fund operating losses that CPSC used.” Finally, “... by compounding the amount of equity invested annually by IBI or its shareholders times the period of time the equity is invested times the opportunity cost rate”, this court held IBI’s “opportunity cost” or “imputed interest” could be determined.

In arriving at an actual figure, this court accepted the amount of equity as shown “... in alternative assumptions in defendants’ damage calculation.” As plaintiffs now point out, however, the defendants’ opportunity cost calculation was based upon various rejected factual assumptions. Specifically, the amount of equity was overstated by the inclusion of CPSC’s higher purchase price ($50,000.00), CPSC’s Fishman litigation expenses ($1,190,-281.00), and by the inclusion of opportunity cost accruing after May 31, 1982.

1. Excess Opportunity Cost Prior to May 31, 1982

a. Arguments of the Parties

In order to “correct” the court’s previous calculation of opportunity cost, the plaintiffs suggest that the “excess” equity in-eluded in the defendants’ assumptions be deducted on a year by year basis and multiplied by the approximate average 90-day T-Bill rate for that year. For example, defendants’ Fishman litigation expenses of $745,000 incurred as a result of the liability trial held in March and April of 1979, is initially considered “excess” equity for the following fiscal year. (6/1/79 to 5/31/80); that excess equity of $745,000, plus similar excess equity deducted in previous years, is then multiplied by the approximate T-Bill rate for that fiscal year. These year by year compounding totals are then added to determine the “excess opportunity cost” prior to May 31, 1982. This total amount, along with the opportunity cost accruing after May 31, 1982, is then simply subtracted from the 3.6 million dollar opportunity cost arrived at using the defendants’ rejected factual assumptions.

Defendants object to this formulation on several grounds. First, contending the burden of demonstrating the appropriate opportunity cost rests upon the plaintiffs, defendants object to any modification in the calculation of the 3.6 million dollar opportunity cost on the grounds that there is no expert testimony in the record to support it.

Second, defendants contend the record is insufficient to support the assumptions made by the plaintiffs in recalculating the opportunity costs. Specifically, defendants object to the “assumption” in the plaintiffs’ recalculation that litigation expenses incurred in a given fiscal year were completely paid by the beginning of the next fiscal year. For example, defendants contend it is unreasonable to assume the $745,000 in Fishman litigation expenses incurred in March and April of 1979 were completely paid by May 31, 1979, so as to allow the plaintiffs to credit the full amount of that excess equity for the entire 1979-80 fiscal year.

Finally, if this court elects to incorporate the adjustments proposed by plaintiffs, defendants contend this court must also adjust the 3.6 million dollar opportunity cost figure from which plaintiffs seek to subtract the excess opportunity cost. Specifically, defendants’ contend “[a] more precise calculation of IBI’s opportunity cost at the Treasury Bill rates relied upon by IBI in its Motion To Amend yields $4.25 million, not $3.6 million as the starting point for IBFs adjustment.” (emphasis added) Plaintiffs object to raising the “starting point” on the grounds that the $3.6 million figure was “... proposed to the Court by defendants, testified to by defendants’ own expert, and accepted by the Court.”

b. Discussion

In arguing that the plaintiffs are not entitled to challenge the opportunity cost calculation adopted by the court, defendants essentially admit the calculation was incorrect. Defendants note:

Absolute precision was a virtual impossibility because the court based its calculation on an opportunity cost rate which was not reflected in any of the proposed damage calculations prepared by the defendants’ experts and on a formula which rejected certain of defendants’ underlying assumptions, and, more importantly, because IBI elected to ignore the concept of opportunity cost altogether and offered the Court no alternative calculations.

Thus, the issue is not whether this court’s calculation of opportunity cost was correct, defendants admit the calculation was incorrect, but, based upon the record, whether a more reasonable calculation can be substituted.

In the view of this court, a more reasonable calculation can be rendered. This court rejects the defendants’ contention that the burden of producing a more reasonable calculation rested upon the plaintiffs. The cases relied upon by the defendants, simply state a plaintiff must show a loss of net, not gross, profits. See e.g. Garrett’s, Inc. v. Farah Manufacturing Co., 412 F.Supp. 656 (D.S.C.1976); Peter v. Union Oil Co., 328 F.Supp. 998 (C.D.Cal. 1971); and 2361 State Corp. v. Sealy, Inc., 263 F.Supp. 845 (N.D.Ill.1967). The evidence concerning “opportunity cost”, however, was in the nature of minimization;thus, the burden of proof remained upon the defendants. Dobbs, Law of Remedies (1973) § 3.7.

Similarly, the court finds the defendants’ objections to the plaintiffs’ assumptions concerning the payment of Fishman litigation expenses to be unpersuasive. Despite the single example cited by the defendants, the assumption that legal fees incurred in a given fiscal year would be fully paid by the beginning of the subsequent fiscal year seems quite reasonable. Indeed, in many years, that assumption might be quite conservative, as a substantial portion of the fees may have been paid well before the close of the preceding fiscal year. Thus, in the view of the reasonableness of this assumption, the court does not deem the absence of evidence concerning the actual pattern of repayment as foreclosing the plaintiffs’ proposed adjustments.

This court does, however, view it as appropriate to have the defendants’ 3.6 million dollar opportunity cost figure recalculated utilizing the same interest rates the plaintiff proposes to use in calculating the “excessive” opportunity costs. Both sides base their calculations on the testimony of the same expert witness. It would be unreasonable, therefore, to allow the plaintiffs to calculate the “excessive” opportunity cost using higher interest rates than those utilized in originally calculating the 3.6 million dollar opportunity cost figure.

The 3.6 million dollar figure originally arrived at was based upon a rough estimate by the defendant’s expert. Defendant’s expert testified that the plaintiffs’ opportunity cost, based upon an interest rate of prime plus three, was 8.6 million dollars. He arrived at this figure by multiplying the known yearly prime rate plus three by the defendant’s invested capital. The defendant’s expert then testified that the average ninety day T-Bill rate over the ten year period was approximately two points below prime. He estimated that a one point downward adjustment in the interest rate utilized in calculating the plaintiffs’ opportunity cost would result in about a one million dollar reduction in the actual dollar amount calculation. Consequently, the five percent difference between the prime plus three rate and the estimated average ninety day T-Bill rate resulted in an estimated five million dollar reduction in the actual dollar figure, from 8.6 million to 3.6 million.

Defendants' expert, Mr. Peterson, testified that the average T-Bill rate was 5% less than the average rate at prime plus 3%. * * * (This seems to make sense: it pegs the average T-Bill rate at about 2% below prime). Therefore, the T-Bill rate is approximated in plaintiffs’ chart by the same method defendants have used i.e., by subtracting 5% from the prime plus 3% rate shown in DX 424. * * *.

In arriving at the yearly T-Bill rate utilized in calculating their “excess opportunity cost,” plaintiffs simply subtracted two points from the known yearly prime rate. Plaintiffs object to allowing the defendants’ to utilize the same procedure to recalculate the 3.6 million dollar opportunity cost figure. Since defendants’ expert testified the actual reduction would work out to approximately one million dollars per point, plaintiffs contend the defendants must abide by that figure.

As noted previously, this court does not agree. It is plain that the defendants’ expert’s one million dollar per point estimate was merely a ball park figure; it was not based upon an actual recalculation of the 8.6 million dollar figure at the lower T-Bill rate. Thus, this court deems it appropriate to allow the defendants to recalculate the 3.6 million dollar opportunity cost figure utilizing the same method employed by the plaintiffs.

Adjusting defendants’ calculation of the opportunity cost by the T-Bill rates proposed in the plaintiffs’ Motion To Amend yields a modified opportunity cost of $4,247,363. Reducing that figure by $633,-660, a figure representing the compounding excess equity contributed prior to May 31, 1982 multiplied by the applicable T-Bill rates, yields a partially adjusted opportunity cost of $3,613,703. In order to arrive at a completely adjusted opportunity cost figure, however, the opportunity costs calculated subsequent to May 31,1982 must also be subtracted from the defendants’ modified figure.

2. Opportunity Cost Calculated Subsequent to May 31, 1982

Plaintiffs also seek to reduce the opportunity cost figure adopted by the court on the grounds that it incorporates an unduly long computation period (i.e. beyond May 31, 1982). This court previously held plaintiffs’ damages should be calculated as of May 31, 1982. Defendants do not directly contest either the merit of such a reduction or the plaintiff’s calculation of the amount of such a reduction. Thus, the plaintiffs’ motion to adjust the opportunity cost by deducting $563,570, the excess amount of opportunity cost calculated after May 31, 1982, is allowed. The completely adjusted opportunity cost, therefore, is $3,050,133. [$4,247,363 — ($633,660 + 563,570)]

C. Post-Judgment Interest

Plaintiffs also contend post-judgment interest should begin to run as of July 20, 1984, the date originally set forth in the defendants’ proposed judgment order. Defendants respond that post-judgment interest should not begin until the date the court actually entered judgment, November 21, 1984, and should be tolled during the pendency of the subject motions.

Title 28, Section 1961, of the United States Code, 28 U.S^C. § 1961 (1982), provides in relevant part, that “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court ... calculated from the date of the entry of judgment____” (emphasis added) Entry of judgment is governed by Federal Rule of Civil Procedure 58. Rule 58 provides in relevant part:

... (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover a sum certain ... the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answer to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. ... Attorneys shall not submit forms of judgment except upon direction of court, and these directions shall not be given as a matter of course.

In the present case, the court issued its findings of fact and conclusions of law concerning damages on June 28, 1984. In issuing those findings; this court concluded that plaintiff, IBI, was entitled to recover compensatory and punitive damages in a sum certain, and was entitled to have its compensatory damages trebled under the antitrust laws. Finding that the parties had failed to address whether the plaintiff was entitled to execute a judgment on both the treble and punitive damages awards, however, this court did not enter judgment in a sum certain, but, instead, directed the plaintiff to submit a proposed judgment order in conformance with the court’s findings.

On or about July 20, 1984, plaintiffs submitted a proposed judgment order allowing plaintiff, IBI, to execute upon both the treble damage and punitive damage awards. In addition, plaintiffs’ proposed judgment order provided for an award of prejudgment interest. The court set a briefing schedule to allow the parties to address the merits of both issues.

During the briefing of the issue, defendants’ submitted their own proposed judgment order limiting recovery to treble damages or punitive damages, disallowing prejudgment interest, and allowing post-judgment interest from July 20, 1984. Briefing on the subject issues was completed on September 25, 1984, when defendants were granted leave to file a reply memorandum. The parties’ memorandum did not address the issue of the proper date from which to calculate post-judgment interest.

On November 20, 1984, this court issued a draft order limiting the plaintiffs recovery to either treble or punitive damages, and denying pre-judgment interest. On November 21, 1984, this court also issued a separate final judgment order providing, in part, that post-judgment interest would begin to be calculated on November 21, 1984.

While there is authority indicating post-judgment interest could be properly calculated from as far back as the issuance of the court’s June 28,1984 findings of fact and conclusions of law, this court declines to do so. Compare Goldberg v. Medtronic, 686 F.2d 1219, 1230 (7th Cir.1982) (holding the district court did not abuse its discretion in calculating post-judgment interest from the date of its decision rather than the entry of judgment) with Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157, 1167-68 (5th Cir.1972) (holding the district court did not abuse its discretion in calculating post-judgment interest from the judgment date rather than the date of the jury’s verdict six weeks earlier.) In the present case, judgment was not entered on a sum certain until November 21, 1984. Prior to that time, the parties were uncertain whether plaintiff, IBI could collect $11,677,113 or $14,177,113 plus pre-judgment interest. The subsequent delay was not the result of a clerical error or other mistake; the court was simply involved in resolving issues the parties had failed to previously address.

Moreover, if post-judgment interest were held to have begun accruing on June 28 or July 20, 1984, this court would be faced with a rather anomolous result. On one hand, this court would be recognizing that “... the date of the entry of judgment” for purposes of triggering the accrual of post-judgment interest pursuant to § 1961 was in June or July of 1984. On the other hand, this court, in deciding the parties’ present Rule 59(e) motions, filed in late November and early December of 1984, would be recognizing that the present motions were “... served not later than 10 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). Thus, this court, in essence, would be recognizing that judgment was entered on two separate dates, one for the purposes of post-judgment interest and one for the purposes of timely post-judgment relief. Plaintiffs’ motion to amend this court’s judgment order to provide for post-judgment interest accruing from July 20, 1984 is, therefore, denied.

Similarly, defendants’ motion to toll the accrual of post-judgment interest during the pendency of the instant Rule 59(e) motions is denied. This court has been unable to locate any persuasive authority favoring such a procedure. See Litwinowicz v. Weyerhaeuser Steamship Co., 185 F.Supp. 692 (E.D.Pa.1960). Moreover, this court refuses to exercise its discretion in favor of tolling the accrual of post-judgment interest.

D. Typographical Corrections

Plaintiffs also point out a typographical error in the alignment of a chart appearing in the June 28, 1984 draft order. The June 28, 1984 order has been submitted for publication; appropriate steps have been taken to correct the error.

CONCLUSION

For the reasons set forth herein, defendants’ motion to amend is denied; plaintiffs’ motion to amend is granted, in part, and denied, in part. The November 21, 1984 judgment order is amended as follows:

1. Paragraph 1 is amended to provide the named defendants are jointly and severally liable in the amount of $13,-326,734. ($11,677,133 + [(3,600,000 —3,050,133) X 3])
2. Paragraph 2 is amended to provide the named defendants are jointly and severally liable in the amount of $3,942,238, plus punitive damages. [$3,392,371 + (3,600,000 - 3,050,-133)].

      . Except for 1979, the annual Fishman fees ranged between $50,000-89,000.

      . In describing the method utilized in arriving at the yearly T-Bill rates, plaintiffs state:


text:
    Wolfgang P. SEIBT, individually, Ilse Seibt, Andreas Seibt, Corinna Seibt and Wolfgang P. Seibt, as Trustee for the MDSC Pension Plan, Plaintiffs, v. Sherwood G. PETERSON, individually, Sherwood G. Peterson, d/b/a Financial Planning Services, Lowell Hagan, Jr., Paul S. Bast, John L. Woolley, Jackie Mason, Trans World Entertainment Network, Inc. and J.M.S., Ltd., Defendants.
    No. 83 C 4814.
    United States District Court, N.D. Illinois, E.D.
    Feb. 21, 1985.
    Andrew B. David, Robert P. Bramnik, Judith I. Byrd, Arvey, Hodes, Costello & Burman, Chicago, 111., for plaintiffs.
    Melvyn M. Weisberg, Wendy S. Klein, Weisberg & Miller, Donald L. Johnson, Marty L. Schwartz, Johnson & Schwartz, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiffs Wolfgang, Use, Andreas and Corinna Seibt (“the Seibts”) bring this action against the eight defendants for violations of the federal and Illinois securities laws and for common law fraud. Presently before the Court is the Seibts’ motion for summary judgment on Count V of the amended complaint against defendant Jackie Mason (“Mason”), in which the Seibts allege that the sales to them of limited partnership interests in J.M.S., Ltd. violated the antifraud and registration provisions of the Illinois Securities Law of 1953, Ill. Rev.Stat. ch. 121½, § 137.1 et seq. For the reasons set forth below, the motion for summary judgment is granted.

Summary judgment, of course, is appropriate only when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R. Civ.P. 56(c). The burden of demonstrating that no genuine issue of material fact exists rests on the movant. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). For the purpose of determining whether any material fact remains disputed, a court must view the evidence, and the inferences to be drawn from the evidence, in the light most favorable to the party opposing summary judgment. Id.; Big O Tire Dealers, Inc. v. Big O Ware house, 741 F.2d 160, 163 (7th Cir.1984). Any inferences, however, must be reasonably drawn. Korf 726 F.2d at 1226; Posey v. Skyline Corp., 702 F.2d 102, 104 (7th Cir.1983), cert, denied, — U.S. —, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).

Count V of the amended complaint alleges that the Seibts have the right to rescind the sales of J.M.S., Ltd. partnership interests to them and to recover civil remedies under Ill.Rev.Stat. ch. 121½, § 137.13. Virtually all of the elements of this claim are undisputed. The Seibts have alleged, and have shown through affidavits and documents, that they purchased securities in J.M.S., Ltd. on or about July 21, 1980, and that they still own these securities. The sales of these securities, however, were never registered in Illinois. The Seibts also claim, and Mason does ■ not contest, that they made a timely demand on Mason for the rescission of their purchases and thereafter initiated this suit in a timely manner.

The sole argument Mason makes is that he is not a general partner of J.M.S., Ltd. and therefore cannot be found liable to the Seibts under Section 137.13. Indeed, although the Seibts have offered evidence indicating that Mason might be held liable as a partner, Mason has produced contrary evidence which shows that he at least never intended to be considered or held out to others to be a J.M.S., Ltd. partner. Thus, there is a genuine issue of material fact as to whether Mason ever was or appeared to be a partner.

However, the Seibts have identified other grounds for holding Mason liable under Section 137.13 to which Mason completely fails to respond. The statute states that the following persons may be found liable: “the issuer, controlling person, underwriter, dealer or other person by or on behalf of whom said sale was made, and each underwriter, dealer or salesperson who shall have participated or aided in any way in making such sale____” In addition to asserting that Mason is liable as a general partner of the issuer, the Seibts claim that Mason should be deemed to be a controlling person, a person on behalf of whom the sales were made and an underwriter or promoter.

The Illinois statute defines the term “controlling person,” in the case of unincorporated issuers, as “any person selling a security, or group of persons acting in concert in the sale of a security, who directly or indirectly controls the activities of the issuer.” Ill.Rev.Stat. ch. 121½, § 137.2-4. The status of controlling person was discussed in more detail in a recent Illinois Appellate Court decision, Froehlich v. Matz, 93 Ill.App.3d 398, 48 Ill.Dec. 781, 417 N.E.2d 183 (3d Dist.1981). The court stated that a controlling person need not always take overt action, but “there must be some showing of assent, approval or concurrence, albeit tacit approval, in the action of the group in selling securities, before an individual will be held liable for the actions of the controlling group.” Id., 93 Ill. App.3d at 406, 48 Ill.Dec. at 788, 417 N.E.2d at 190. Mason’s own deposition testimony shows that he not only tacitly approved of the J.M.S., Ltd. partnership interest sales, but he also took overt action by appearing at investors’ parties to promote himself and his show and to solicit more investments. The only reasonable inference from this testimony is that Mason was a controlling person as defined by Illinois statute and case law.

For these reasons, Mason is liable under Section 137.13. Accordingly, the Seibts’ motion for summary judgment against Mason on Count V of the amended complaint is granted. It is so ordered.

      . Jurisdiction is asserted under 15 U.S.C. § 78aa and principles of pendent jurisdiction.

      . Mason actually raises one other, purely procedural, objection: he argues that the Seibts’ motion must be denied because they failed to comply with Local Rule 12(e) of this District. We disagree. Although the Seibts did not file a separate statement of the material facts as to which they contend there is no genuine issue, they summarized the uncontested facts in a single paragraph of their motion for summary judgment. Moreover, Mason himself failed to submit a statement of genuine factual disputes as required by Local Rule 12(f). We thus decline to deny the Seibts’ motion on this procedural basis.

      . Mason’s actions in concert with the others who sold J.M.S., Ltd. partnership interests, coupled with the fact that Mason expected to receive at least part of the funds solicited from the investors, also supports holding Mason liable under Section 137.13 as an underwriter, promoter or a person on whose behalf the sale was made.


text:
    Linda BALTZ, Plaintiff, v. The COUNTY OF WILL, a Governmental Entity; John H. Shelley, individually and as Sheriff of Will County; William N. Hilger, individually and as an Agent and Employee of Will County; Craig Butkovick, individually and as a Deputy Sheriff of Will County; and Paul Kaupus, individually and as a Deputy Sheriff of Will County, Defendants.
    No. 84 C 2198.
    United States District Court, N.D. Illinois, E.D.
    Feb. 21, 1985.

      John P. DeRose, Chicago, Ill., for plaintiff.
    William W. Kurnik, Kurnik & Gipolla, Arlington Heights, Ill., Neil K. Quinn/Terri R. Olian, Pretzel & Stouffer, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Linda Baltz (“Baltz”), a Will County Deputy Sheriff, brought this suit under the Civil Rights Act of 1871, 42 U.S.C. § 1983, against Will County Sheriff John Shelley (“the Sheriff”), two deputy sheriffs, Craig Butkovick (“Butkovick”) and Paul Kaupus (“Kaupus”), Will County (“the County”) and a private psychiatrist, Dr. William Hilger (“Dr. Hilger”). Before the Court are motions to dismiss filed by the several defendants. For the reasons' stated below, the Court grants the County’s motion, denies Dr. Hilger’s motion and grants the Sheriff’s motion in part.

We cannot grant the motion to dismiss unless it appears beyond doubt that Baltz can prove no set of facts entitling her to relief. See Hishon v. King & Spalding, — U.S. —, —, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). We must take as .true, moreover, all material allegations of fact in the complaint. With these standards in mind, we turn to Baltz’s complaint and defendants’ challenge to it.

I. The Allegations of Fact

The story told in the complaint can only be described as strange. Baltz worked as a deputy sheriff in the County until February 23, 1983, the first day of the bizarre sequence of events described in the complaint.

The Sheriff and the County allegedly have a policy which empowers the Sheriff to use unfettered discretion in demanding that a deputy submit to a psychological exam. Dr. Hilger apparently contracts with the County to perform these exams. Under the policy, the Sheriff may suspend a deputy until she agrees to submit to an exam. The Sheriff may fire any deputy who refuses to be tested.

Sometime in early 1983, the Sheriff demanded that Baltz submit to a psychological exam with Dr. Hilger. She was suspended until she agreed to meet with Dr. Hilger. Under threat of losing her job, Baltz agreed to meet with Dr. Hilger at her home at 10:00 p.m. on February 23, 1983. Allegedly under orders from the Sheriff, Dr. Hilger arrived at Baltz’s home with Deputies Butkovick and Kaupus, who were in full uniform. Without probable cause, provocation or search warrant, Dr. Hilger ordered the two deputies to search Baltz’s home, which they did, despite Baltz’s protests. After finishing the search, the three defendants — allegedly acting with the Sheriff’s knowledge and approval — demanded that Baltz accompany them to the County jail. Baltz protested and demanded to be shown an arrest warrant, but Dr. Hilger told her that no arrest warrant had been issued but that she had to obey their demand to leave with them. During all of this, Baltz’s two children had become hysterical, which must not have been ameliorated when Dr. Hilger allegedly told them that their mother would kill them and then herself if she were not imprisoned.

Dr. Hilger and the two deputies took plaintiff away, against her will, at about 2:30 on the morning of February 24. Without “booking” her, advising her of any charges or taking her before a judge or magistrate, defendants jailed her.

Several hours later, about noon on the 24th, Dr. Hilger gave Baltz the following choices: she could remain in jail, be admitted to Tinley Park Mental Institution or be admitted to St. Joseph’s Hospital for at least seven days. During all of this time, Baltz was not allowed to call a lawyer. Confronted with this limited range of choices, Baltz “chose” to be admitted to St. Joseph’s Hospital. The complaint alleges that there was no medical or phychological need for such admission.

Baltz asked the Sheriff to be reinstated to her job. The Sheriff refused, demanding that she first submit to intensive psychotherapy with Dr. Hilger. Apparently feeling that Dr. Hilger had not established good rapport with her, Baltz refused to let him test or treat her. Instead, she underwent testing at her own expense. The testing showed that she was fit to work, but the Sheriff refused for several months to reinstate her. Finally, after hiring private counsel and undergoing more psychological tests at her own expense, Baltz was reinstated.

The complaint alleges that the Sheriff knew and approved of the above acts. Moreover, the defendants allegedly conspired to do the above acts in order to deprive Baltz of her civil rights.

The complaint contains four “counts.” Counts I and II are brought under 42 U.S.C. § 1983. Count I alleges that the above acts deprived Baltz of “her civil rights and of the the protections guaranteed her under the United States and Illinois Constitutions.” No specific constitutional provision is mentioned. Count II alleges that the Sheriff's department's “customs, procedures, policies and methods of operation” deprived Baltz of her rights to due process of law. Count III alleges a pendent state claim of false arrest and imprisonment. Count IV alleges a state claim of intentional infliction of emotional distress.

The Sheriff and the two deputies filed an answer, denying most of the material allegations of the complaint. They admit that they came to Baltz’s house, that she left with them and that she ended up at the hospital. They deny, however, that she went unwillingly, and they deny the more egregious allegations in the complaint.

In addition to answering, the Sheriff has moved to dismiss two parts of the complaint. First, he argues that to the extent, that the complaint challenges the general policy of requiring deputies to undergo psychiatric tests, it fails to state a claim. Second, he argues that the facts alleged in the complaint are not outrageous enough to make out the tort of intentional infliction of emotional distress.

The other defendants have not answered, but have moved to dismiss the claims against them. Dr. Hilger asserts that as a private party he did not act “under color of state law,” either individually or in conspiracy with the other defendants. The County asserts that as a matter of Illinois law it is distinct from the Sheriff’s department, and thus cannot be held liable under § 1983 for the alleged acts of Sheriff’s employees. We will consider the County’s motion first.

II. The County’s Motion to Dismiss

The County points out that under Illinois law, the Sheriff is an independent, elected official. See Ill. Const, art. 7, § 4. Moreover, Ill.Rev.Stat. ch. 125, § 13 states that the Sheriff is responsible for the actions of his or her deputies. Interpreting these provisions, courts in our district have held that Cook County could not be held liable under § 1983 for the constitutional torts of “its” Sheriff’s department. See Thomas v. Talesky, 554 F.Supp. 1377 (N.D.Ill.1983). While the County can be held liable in tort under the doctrine of respondeat superior, see Holda v. County of Kane, 88 Ill.App.3d 522, 43 Ill.Dec. 552, 410 N.E.2d 552 (2d Dist.1980), § 1983 liability cannot be predicated upon that doctrine. See Thomas, 554 F.Supp. at 1378, citing Monell v. Dept, of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978). Under Monell, the County’s policies must be directly responsible for Baltz's injuries.

The complaint merely alleges that the County had a policy supporting the testing program, as well as the specific acts alleged in the complaint. In light of the above analysis of Illinois law, revealing the separation between the Sheriff and the County, we think the complaint must allege more to survive a motion to dismiss. It is conceivable that a County may somehow influence a Sheriff’s department policy. Thus, we do not hold that § 1983 liability may never attach to a County for acts of the Sheriff. Rather, we hold that mere conclusory allegations of a County “policy” is not sufficient to state a claim, given the background law indicating that the two entities are separate. We therefore grant the County’s motion to dismiss.

III. The Motion to Dismiss the Due Process Claim

The Sheriff seeks to dismiss the complaint insofar as it purports to allege that the Sheriff’s psychological testing policy, on its face, violates substantive due process. He relies on an Illinois case sustaining a police chief’s power to require subordinates to undergo physical examinations. See Conte v. Horcher, 50 Ill.App.3d 151, 8 Ill.Dec. 329, 365 N.E.2d 567 (1977). In her memorandum, Baltz concedes that the psychological testing requirement is constitutional on its face. See Plaintiff’s Memorandum at 2. Thus, we need not address this issue. Any claim challenging the testing requirement on its face is dismissed. In so ordering, we express no opinion on the merits of such a facial due process challenge to the testing requirement.

Baltz argues that her complaint challenges not the policy itself, but how it was implemented. She states that her due process rights were violated when the defendants allegedly searched her home, arrested her, denied her access to counsel and jailed her, all without probable cause or judicial process. The Sheriff asserts that she has only stated a Fourth Amendment violation, which they do not challenge in the motion to dismiss. We think the facts alleged in the complaint plainly support a due process claim in addition to a Fourth Amendment claim. Apart from the warrantless search, the alleged arrest and the imprisonment deprived Baltz of her liberty without any process, let alone due process.

The problem with Baltz’s complaint is not that the alleged facts fail to support a due process claim. Rather, the complaint does not in explicit terms reach that conclusion. Count I alleges only violations of the Federal and State Constitutions. No provisions are singled out. Neither is Count II carefully crafted. The relevant paragraph is not clear as to whether it is challenging the testing policy on its face, as implemented, or both. However, no defendant has moved for a more definite statement. See Fed.R.Civ.P.. 12(e). The parties have talked about these two counts only in terms of due process and the Fourth Amendment, however. Accordingly, we will construe Count I as a Fourth Amendment claim only, which is not challenged in the pending motions. Since Count II can be read as a due process challenge to the policy, both on its face and as applied, we will construe it as such. Under our earlier reasoning, then, we dismiss Count II insofar as it is a facial challenge. But because Count II also states a due process claim grounded in the facts of this case, but not in the general policy, we deny the motion to dismiss that part of the claim.

IV. The Emotional Distress Claim

Under Illinois law, the tort of intentional infliction of emotional distress contains the following elements:

(1) extreme and outrageous conduct by the defendants;
(2) intent to cause, or a reckless disregard of the probability of causing, emotional distress;
(3) severe or extreme emotional distress suffered by plaintiff;
(4) actual and proximate causation of the emotional distress by defendants’ outrageous conduct.

See Public Finance Corp. v. Davis, 66 Ill.2d 85, 89-90, 4 Ill.Dec. 652, 654, 360 N.E.2d 765, 767 (1976); see also Restatement (Second) of Torts, § 46 (1965). The complaint alleges these elements. The Sheriff argues that the facts alleged in the complaint do not meet the strict requirements of the first element. We disagree.

It is clear that only heinous conduct will be considered “extreme and outrageous” under Illinois law.

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities. “It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found [only when the conduct] is so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency.”

Public Finance, 66 Ill.2d at 89-90, 4 Ill. Dec. 654, 360 N.E.2d at 767, quoting, Restatement (Second) of Torts, § 46, Comment d (1965). We cannot say as a matter of law that defendants’ alleged conduct falls short of the outrageousness required under Illinois law. Assuming that the facts alleged in the complaint are true, a jury could reasonably find that defendants’ conduct was outrageous enough to warrant liability.

According to the complaint, construed in the light most favorable to Baltz, the defendants (acting in conspiracy) dragged her out of her house in the middle of the night after searching it; told her children that she could have killed them and herself; threw her in jail for ten hours; denied her access to a lawyer or court; and told her she would remain in jail unless she agreed to check into a mental institution. These facts are not “mere insults, indignities, threats, [or] trivialities.” We think a jury could reasonably conclude that the conduct was “so outrageous ... and extreme ... as to go beyond all bounds of decency.” Accordingly, the Sheriff’s motion to dismiss Count IV is denied.

V. Dr. Hilger’s Motion to Dismiss

Dr. Hilger asserts that the complaint does not allege enough facts to support a claim that he, a “private” actor, acted “under color of state law.” We disagree.

It is well settled that a claim under § 1983 contains two fundamental elements. First, the plaintiff must allege the violation of a right secured by the Constitution and laws of the United States. Second, the plaintiff must allege that the defendant deprived her of this constitutional right “under color of any statute ... custom, or usage, of any State,” i.e., “under color of law.” See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 930, 102 S.Ct. 2744, 2751, 73 L.Ed.2d 482 (1982); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). Baltz has plainly met the first § 1983 requirement, as our previous holdings make clear. Dr. Hilger only challenges the second requirement. This “under color of law” requirement has been equated with the “state action” requirement of the Fourteenth Amendment. See Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982).

Under recent Supreme Court cases, the ultimate “state action” question is whether “the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the state.” Lugar, 457 U.S. at 937, 102 S.Ct. at 2754; Rendell-Baker, 457 U.S. at 838, 102 S.Ct. at 2770. The answer to this question necessarily depends on the facts of each case. See Lugar, 457 U.S. at 939, 102 S.Ct. at 2755. “[A] State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). That is, when the State places its “imprimatur” on the “private” action, it becomes “state” action. Id. at 1003, 102 S.Ct. at 2785. Applying these principles to this case, we hold that Dr. Hilger acted “under color of state law.”

The complaint specifically alleges that Dr. Hilger was hired by the Sheriff to perform psychological testing; that on the night of the arrest he was acting under orders of the Sheriff; that he ordered the deputies, who were in uniform, to search the house and to arrest Baltz; and that, again with knowledge and approval of the Sheriff, he gave Baltz the “choice” of remaining in the County jail or moving into the hospital. These facts clearly show that the “state,” via the Sheriff, placed its “imprimatur” on Dr. Hilger’s acts. Indeed, he ordered Dr. Hilger to so act, and Dr. Hilger presumably was compensated for his acts. Unlike Rendell-Baker, where the state funded and regulated the private entity, but played no part in the alleged constitutional wrong, the “state” here paid, ordered and encouraged the unconstitutional conduct.

Dr. Hilger has submitted an affidavit which states facts supporting an argument that under common law he is an “independent contractor” as opposed to an “agent.” He concludes from this that he cannot be held liable under § 1983. We disagree. The common law independent contractor/agent distinction has limited relevance to the state action analysis. As noted above, the principal inquiry under the Supreme Court cases is whether the state encouraged, coerced or otherwise placed its imprimatur on the private conduct. Dr. Hilger’s affidavit does not address the facts surrounding the night in question. It merely speaks in general terms about his financial relationship with the County. In sum, we conclude that Dr. Hilger’s conduct may “fairly be attributed to the state.”

We also find state action under a “conspiracy” theory. In addition to using the above “nexus” approach, courts may find state action under the so-called “public function” test, see Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (company town); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (public park), or under a “conspiracy test,” which is really a variant of the “nexus” approach. See, e.g., Adiekes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In Adiekes, the defendant was a restaurant owner who refused to serve Ms. Adiekes, a white patron who entered the restaurant with black friends. A police officer was apparently present at the time, and he arrested Ms. Adiekes as she left the restaurant. A District Court had granted summary judgment, holding that the restaurant owner had not acted under color of state law in refusing to serve Adiekes. The Supreme Court reversed, holding that private parties who conspire with public officials to violate someone’s constitutional rights can be liable under § 1983:

[A] private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. Private persons, jointly engaged with state officials in the prohibited action are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.

398 U.S. at 152, 90 S.Ct. at 1605-06 (internal quotations omitted). A plaintiff in a conspiracy case must ultimately show that the private party had a “meeting of the minds” with the public official. Id at 158; 90 S.Ct. at 1609.

Dr. Hilger recognizes this conspiracy theory of state action, but argues that the allegations in the complaint are not specific enough to support a conspiracy claim. Dr. Hilger relies on. Sparkman v. McFarlin, 601 F.2d 261, 263-68 (7th Cir.1979) (en banc) (Sprecher, J., concurring); see also Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206-07 (7th Cir.1980). Sparkman involved the § 1983 liability of a private person alleged to have conspired with an absolutely immune state judge. The majority affirmed the district court’s dismissal of the plaintiff’s claim for failure to allege the conspiracy with some particularity. Judge Sprecher, concurring, wrote:

It is not sufficient to allege that the defendants merely acted in concert or with a common goal. There must be allegations that the defendants had directed themselves toward an unconstitutional action by virtue of a mutual understanding. Even were such allegations to be made, they must further be supported by some factual allegations, suggesting such a ‘meeting of the minds.’

601 F.2d at 268. We have some doubts about whether the Sparkman particularity requirement applies to this case. As the Court noted later in Tarkowski, “[s]ome of this court’s language in Sparkman, suggests that that opinion pertains only to alleged conspiracies with judges.” 644 F.2d at 1206 n. 4; see Sparkman, 601 F.2d at 262 (Fairchild, C.J., with Tone, J., concurring). Although Tarkowski extended Sparkman to alleged conspiracies with prosecutors, who are also immune, there is language in both cases suggesting that they are limited to situations where the state official is immune under § 1983. This pleading rule makes sense in the limited context of immune officials. The particularity rule prevents a plaintiff who cannot recover from an immune state official from easily bootstrapping a private party into court in order to evade the immunity. However, such is not the case here. As we noted above, see n. 9 above, the Sheriff and the deputies are apparently not immune in this case. Thus, the Sparkman pleading rule might not apply here. In the final analysis, however, we need not decide whether this distinction warrants a holding that the Sparkman standard does not apply here. Even under that case’s rule of pleading conspiracy with particularity, the complaint in this case suffices.-

As Dr. Hilger points out, the complaint contains several conclusory allegations of conspiracy. But Dr. Hilger wrongly states that the complaint lacks factual allegations supporting that conclusion. Dr. Hilger admits that he has some sort of employment relationship with the Sheriff. The complaint alleges that, in furtherance of this employment, and acting either under the Sheriff’s orders or with his knowledge and approval, Dr. Hilger (1) accompanied the deputies to Baltz’s home; (2) ordered them to search the house-and arrest Baltz; (3) told Baltz there was no arrest warrant, but that she had to come with him; (4) told Baltz later that she had to choose between jail and a mental hospital. We think these facts amply support an inference that Dr. Hilger and the Sheriff had a “meeting of the minds.”

It must be noted that “[hjowever strict its pleading requirements may be, Spark-man does not require proof at the pleading stage. Conspiracies are ordinarily clandestine, so that proof of them will often be by purely circumstantial evidence.” Brucar v. Rubin, 638 F.2d 987, 993 (7th Cir.1980) (holding that plaintiff satisfied Sparkman in alleging a claim of conspiracy with a judge). Thus, it does not matter that Baltz failed to allege that Dr. Hilger and the Sheriff met at a specific time and place, and then and there plotted to violate Baltz’s rights. Rather, we can infer a meeting of the minds from the alleged facts that Dr. Hilger was paid by the Sheriff, ordered the deputies about, and appeared to be a principal actor in the sequence of events. The Supreme Court made a much more attenuated inference in Adickes in holding that finding a conspiracy was possible in that case.

In sum, we hold that the facts alleged in the complaint state a claim that Dr. Hilger acted “under color of state law,” under either a direct state action theory or a more inferential conspiracy approach.

VI. Conclusion

The County’s motion to dismiss is granted. Dr. Hilger’s is denied. The Sheriff’s motion to dismiss is granted to the limited extent that the complaint states a claim (1) that the testing requirement is invalid on its face, and (2) that the Illinois Constitution has been violated. In all other respects, the Sheriff’s motion is denied. It is so ordered.

      . This is just one of the peculiar facts to follow. It is puzzling why 10:00 p.m. on a weeknight would be chosen as the time for the exam.

      . The complaint does not state what the defendants might have been searching for.

      . Section 1983 provides in relevant part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . That Constitutional provision states:
      Each County shall elect a sheriff ... for terms of four years at general elections as provided by law.

      . Ill.Rev.Stat. ch. 125, § 13, provides:
      The Sheriff shall be liable for any neglect or omission of the duties of his or her office, when occasioned by a deputy ... in the same manner as for his or her own personal neglect. or omission.

      . We alternatively base this holding on Local Rule 13b, which states:
      b. Failure to file a supporting or answering memorandum shall not be deemed to be a waiver of the motion or a withdrawal of opposition thereto, but the court on its own motion or that of a party may strike the motion or grant the same without further hearing.
      Baltz did not respond to the County’s motion. Under the discretion given us by Local Rule 13b, we grant the County's motion because of Baltz’s failure to respond.

      . We note that the complaint alleges a violation of the Illinois Constitution via the § 1983 right of action. This cannot be done, since § 1983 grants relief for violations of the federal Constitution and laws. Absent an allegation of a right of action for violation of an Illinois constitutional provision, we dismiss, sua sponte, Baltz’s claims to the extent they arise under the State Constitution.

      . Paragraph 28 of the complaint alleges:
      That Defendants, following the customs, procedures, policies and methods of operation of the Sheriff's Department of THE COUNTY OF WILL, while acting in consort and conspiracy with each other, and without cause or right, and unlawfully, intentionally, maliciously and knowingly, did deprive Plaintiff of her rights to due process of law under the United States Constitution and under the Constitution of the State of Illinois.

      . The Sheriff argues that he is entitled to immunity from liability on the claim challenging the testing policy on its face. Since we have dismissed that part of the claim, we need not reach the immunity issue. The Sheriff has not asserted an immunity defense to liability on the Fourth Amendment claim or on the rest of the due process claim.

      . Dr. Hilger’s memoranda focus on this conspiracy theory, which is discussed in more detail below. He argues that Baltz conceded the state action issue under the more direct, "nexus” approach we have taken above. We disagree. While Baltz, too, focused on the conspiracy theory, she did cite a "nexus” case, see Tomkins v. Village of Tinley Park, 566 F.Supp. 70 (N.D.Ill. 1983), and made a brief "nexus” argument. Baltz’s problem was not that she conceded the issue. Rather, she collapsed the "conspiracy" and "nexus” approaches. Conspiracy is just one form of "nexus," which can be shown in more direct ways, as discussed above.

      . Arguably, there was also "state action" in this case under a "public function” analysis. The facts in the complaint suggest that Dr. Hilger was, in effect, deputized. In ordering the real deputies about, he was assuming what is normally an "exclusive prerogative of the State," see Blum, 457 U.S. at 1005, 102 S.Ct. at 2789, that is arresting and jailing a private citizen. However, in light of our alternative holdings finding state action, we need not decide whether Dr. Hilger falls within the public function test.

      . Judge Sprecher’s opinion relied on case law where the state actor was immune and focused on the policy issues of suing a state court judge. 601 F.2d at 264-68. Judge Fairchild’s concurrence, joined by Judge Tone, explicitly ties the pleading requirement to the situation where a private person conspires with a judge. 601 F.2d at 262. Judges Pell and Bauer refer to state action "through a person entitled to immunity." 601 F.2d at 263. Brucar v. Rubin, 638 F.2d 987 (7th Cir.1980), is consistent with both Sparkman and Tarkowski, as it states that Sparkman “added strict pleading requirements to the Adickes rule where the 'joint activity’ is between private individuals and a state court official.’’ 638 F.2d at 973 (emphasis added).

      . 398 U.S. at 153-59; 90 S.Ct. at 1606-09. In Adickes, like the Seventh Circuit cases cited above, the defendant was a purely private individual, who, unlike Dr. Hilger, was not hired for his allegedly unconstitutional acts. The Adickes court held that a jury-finding of conspiracy was possible because of the presence of the arresting officer in the restaurant when Ms. Adickes was there:
      If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Kress employee had a "meeting of the minds” and thus reached an understanding that petitioner should be refused service.

        Id. at 158; 90 S.Ct. at 1609. We think an inference of a "meeting of the minds” is based on more substantial facts in this case.