Summary
holding that Winnebago County PD's Office was a county agency because "most of the factors discussed as relevant [in Halloran are] equally applicable to public defenders outside of Cook County"
Summary of this case from Clayborne v. Dupage CountyOpinion
03 C 50121
April 9, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff, Mary K. Moule, filed a four-count, amended complaint, naming as defendants the County of Winnebago (County), the Winnebago County Board (Board), the Winnebago County Public Defender's Office, and Karen Sorenson, in her individual capacity and official capacity as Winnebago County Public defender. The amended complaint alleges in Count I a violation of the Age Discrimination in Employment Act (ADEA), in Count II a wilful violation of the ADEA, in Count III a civil rights violation pursuant to 42 U.S.C. § 1983 and based on the ADEA, and in Count IV a state law claim of intentional infliction of emotional distress. The County and the Board moved to dismiss the amended complaint, contending that they are not employers of plaintiff because, as an assistant public defender, she was an employee of the State of Illinois not the County. Picking up on this contention, Sorenson argues that the suit against her in her official capacity is barred by the Eleventh Amendment. Alternatively, Sorenson and the Public Defender's Office maintain Count IV is time-barred under Illinois law and that the Public Defender's Office is not an entity subject to suit. Plaintiff concedes these latter two contentions.
The dispositive issue as to the motions to dismiss of the County, the Board, and Soreneson in her official capacity is whether the public defender(or an assistant) is a state or county employee under Illinois law.
The Illinois Supreme Court has ruled that public defenders are county rather than state employees. See Johnson v. Halloren. 194 Ill.2d 493, 496-97 (2001); see also Kurata v. Silverman. 95 Ill. App.3d 89 (1981) (holding public defender is county employee for purpose of applying county personnel policy). While prior Seventh Circuit cases have held that under Illinois law a public defender is a state employee, see, e.g., Warren v. Stone. 958 F.2d 1419 (7th Cir. 1992), those cases were decided without the benefit of the Halloren decision, see Sapienza v. Cook County Office of the Public Defender. 128 F. Supp.2d 563, 568 (N.D. Ill. 2001) (applyingHalloren rather than Warren). Because a federal court relies on Illinois law to characterize government agencies within Illinois, the Halloren decision is controlling here. In light of the more recent case of Halloren, this court concludes that under Illinois law a public defender is an employee of the county for purposes of a wrongful termination action. Halloren is not distinguishable on the basis it addresses the employment status of the Cook County Public Defender(who is appointed by the president of the Cook County Board) as most of the factors discussed as relevant were equally applicable to public defenders outside of Cook County. SeeHalloren 194 Ill.2d at 496-97.
Defendants' reliance on Orenic v. Illinois State Labor Relations Board, 127 Ill.2d 453 (1989), is misplaced as that case is limited to the narrow context of labor relations. Its limited context is supported by the fact that the Halloren decision does not mention it.
Because the court finds that the public defender is an employee of the county rather than the state, the motion to dismiss based on sovereign immunity and the motion to dismiss based on the assertion that the County and Board are not plaintiff's employers are denied. The motion to dismiss the Public Defender's Office as a party and the motion to dismiss Count IV as time-barred are granted.
The court sua sponte dismisses the Board as a defendant as it is not a suable entity. See Wright v. Board of County Commissioners of Cook County. 1999 WL 1249313 (N.D. HI. Dec. 17, 1999); Fabiszak v. Will County Board of Commissioners. 1994 WL 698509 (N.D. Ill. Dec. 12, 1994). The court also dismisses Sorenson as a defendant in both her individual capacity as she cannot be sued as a supervisor under the ADEA, see Matthews v. Rollins Hudig Hull Co., 72 F.3d 50, 52 (7th. Cir. 1995), and her official capacity as that is duplicative of the claim against the County, see Alicea v. City of Chicago. 2002 WL 1021553, at *3 (N.D. Ill. May 20, 2002); A. Kelly's Garage. Inc. v. City of Northbrook. 2000 WL 1889671, at *5 (N.D. Ill. Dec. 28, 2000). The court also dismisses Count III of the amended complaint because a section 1983 action cannot be based upon an alleged violation of the ADEA. See Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 861-62 (7th. Cir. 1996). The motion by Sorenson to file a further response to the amended complaint pursuant to Rule 6(b)(1) is denied as moot.