Petition for Writ of Certiorari — Phelan v. City of Chicago
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031209FEB 19 2004
LE
OFFICE OF The Unit
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2003
JAMES PHELAN
Petitioner,
Vv.
CITY OF CHICAGO,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
KENNETH N. FLAXMAN
200 South Michigan Avenue
Suite 1240
Chicago, Illinois 60604
(312) 427-3200
Attorney for Petitioner
meeps TE et
QUESTIONS PRESENTED
Must a white employee complaining of race
discrimination under Title VII establish "“back-
ground circumstances" to show that the employer
"has reason or inclination to discriminate against
whites" as an essential element of the employee’s
prima facie case of race discrimination?
May an employer, consistent with the Family and
Medical Leave Act, 29 U.S.C. §2901 et seq.,
refuse to reinstate an employee, who has been
granted leave under the Act, to his or her former
position because the employer believes that the
business ran smoother while the employee was on
leave?
INDEX
OPINIONS BELOW ... + + © «© * * © * ]
JURISDICTION < « a ee &} eee eeee
STATUTE INVOLVED ..-+ + + © *« © © * ]
STATEMENT 2
REASONS FOR GRANTING THE WRIT 5
CONCLUSION . 9
a a |
TABLE OF AUTHORITIES
Babbar vy. Ebadi, 216 F.3d 1086
(Table), 2000 WL 702428 (10th Cir. 2000) ......... cece 7
Bass v. Board of County Commissioners,
256 F.3d 1095 (hith Cir. 2001) ..............cccsescscesrscorsseneesees 6’
Byers v. Dallas Morning News, Inc.,
209 F.3d 419 (Sth Cir. ZOQD) ...........ccrccccerssccssssccovessnessees 6
Gagnon vy. Sprint Corp., 284 F.3d 839 (8th Cir. 2002) ........ 5
Green v. Clarendon County School District,
923 F.Supp. 829 (D.S.C. 1996) .........ccscsscersesressesseesessevers 6
Tadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999) ......... 6, 7
Lautermilch v. Findlay City Schools, 314 F.3d 271
I, MTD seccvsenesenaconsaacsnasenerssonsstessenevessuvnseensasssnessens 6-7
Lemnitzer v. Philippine Airlines, Inc., 816 F.Supp. 1441
MEE. WUPIIED sstvashvisnvsoensvovisavexcnvcsnenisvoviesnsercnsocenssnsnsoecsenss 6
Logan v. Caterpillar, Inc., 246 F.3d 912 (7th Cir. 2001) .... 7
Mattioda v. White, 323 F.3d 1288 (10th Cir. 2003) ............. 5
McDonald v. Santa Fe Trail Transp. Co.,
BE BF REID ivcversvssaressnienssnsvarseasnsstscessnssonesosesonseannes 5
McDonnell-Douglas v. Green, 411 U.S. 792 (1973) «0... 5
Mills v. Health Care Service Corp., 171 F.3d 450
I, IE iievtniscinsnerasenesianssanscosdoernonaceptonsegnssnscenvesensoonnine
O’Connor v. PCA Family Health Plan, Inc.,
ZOD F.36 1349 11th Cir. 2000) .0.....0.ererccoverrocccvsesecsssseseoeee 8
Olerick v. New York Telephone, 881 F.Supp. 113
IE: WED iasincsnsssnsnsegscnssarncesvesenwsioonongsassennensonaroesnoneeee 6
Parker v. Baltimore & O.R. Co., 652 F.2d 1012
INS BONED. cacavincseinrnsinenssonssansessanassvesasoveressssesnonsensoneston 2
Ragsdale v. Wolverine World Wide, Inc.,
ER, MED vc ccsisininntieansnvevenaaetbovsnbsaisunvannndnsvencneniosss 7
Schoffstall v. Henderson, 223 F.3d 818 (8th Cir. 2000) ....... 7
Stock v. Universal Foods Corp., 817 F.Supp. 1300
I ED sacsininak diveniatnonirecseasdsunaseubadodepeansentaneneensnenseess 6
Sutherland yv. Michigan Dept of Treasury,
344 F.3d 603 (6th Cir. 2003) 0.0... cccscesseeeseeseeereeeeeeseeeenneens
Teehee v. Board of Education, 116 F.3d 486
(table) 1997 WL 312222 (9th Cir. 1997) ...ssesseceeseseeeesees
Ticali v. Roman Catholic Diocese of Brooklyn,
41 F.Supp.2d 249 (E.D.N.Y. 1999) ....sscssseeesereeerssetesseteee
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue
to review the judgment of the United States Court of Appeals
for the Seventh Circuit entered in this proceeding on October
21, 2003.
OPINIONS BELOW
The decision of the Court of Appeals (App. 1-10) is
reported at 347 F.3d 679. The opinions of the district court
(App. 13-41, 42-53) are reported at 125 F.Supp.2d 870 and
226 F.Supp.2d 914.
JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C.
§1254: The judgment of the court of appeals was entered on
October 21, 2003. (App. 11.) Rehearing was denied on
November 21, 2003. (App. 12.)
STATUTE INVOLVED
This case involves Title VII of the Civil Rights Act of
1964, as amended, — in 42 U.S.C. §2000e-3(a), makes it
unlawful
(1) to fail or refuse to hire or to discharge any individual
. because of such individual’s race, color, sex, religion,
sex, or national origin
This case also involves the "restoration to position" provi-
sion of the Family and Medical Leave Act, 29 U.S.C. §
2614(a)(1), which provides as follows:
(1) In general
Except as provided in subsection (b) of this section,
any eligible employee who takes leave under section
2612 of this title for the intended purpose of the
leave shall be entitled, on return from such leave —
(A) to be restored by the employer to the position of
employment held by the employee when the leave
commenced; or
(B) to be restored to an equivalent position with
equivalent employment benefits, pay, and other con-
ditions of employment.
7 STATEMENT
Petitioner James Phelan was hired by respondent City of
Chicago to be a “Ward Superintendent" in November 1,
1995.' Petitioner was viewed as a “hard working" ward
superintendent by the ward’s alderman and each year
received a merit salary increase.
In the summer of 1997, petitioner began to experience
ser.ous personal health problem; on September 10, 1997,
respondent granted petitioner a leave of absence under the
Family and Medical Leave Act, 29 U.S.C. §2601 et seq.
Petitioner was indicted on mail fraud charges on Sep-
tember 30, 1997.” The indictment did not involve any allega-
tion of misconduct related to plaintiff's employment with the
City.
Petitioner’s physician released him to return to work in
October of 1997. On October 16, 1997, respondent simul-
taneously reinstated petitioner from his FMLA leave and
fired him.
Petitioner thereafter filed two actions in the district court:
in the first case, petitioner alleged inter alia that he been
filed in violation of the FMLA. In the second action, filed
after issuance of a "right to sue" notice from the Equal
Employment Opportunity Commission, petitioner alleged that
1. The "Ward Superintendent" is in charge of garbage
collection for one of the fifty wards that comprise the City
of Chicago.
2. Petitioner was subsequently acquitted.
~ os
he had been fired because he had been indicted and that
respondent would not have fired a similarly situated African-
American or Hispanic ward superintendent.
The district court dismissed on a Rule 12(b)(6) motion all
of petitioner’s claims save for his race discrimination claim.
(App. 13-24.) Thereafter, respondent moved for summary
judgment on the discrimination claim
In seeking to explain its decision to discharge petitioner,
respondent asserted in its summary judgment motion that it
had concluded while plaintiff was on FMLA leave that the
ward operations were running smoother under the supervision
of petitioner’s replacement. Respondent denied _ that
petitioner’s indictment had any impact in its decision to fire
petitioner.
Petitioner opposed the motion for summary judgment
with evidence that, before his indictment, he had viewed as a
3. Respondent also supported its summary judgment motion
with deposition testimony from a supervisor that he had
"written up" petitioner for using his personal vehicle and
had recommended a three day suspension. Petitioner
disputed this testimony with his denial that he had ever
been "written-up," and pointed out first, that respondent
was unable to produce any "write-up" and second, that the
supervisor had admitted at his deposition that the "write-
up" had not resulted in any discipline. The Seventh
Circuit did not base its decision on any "write-up," but
mistakenly observed (App. 6) that petitioner “was
ultimately suspended for three days due to similar
problems prior to taking his medical leave." This
contention had not been urged by respondent and is
without support in the record.
hard working employee and that he had repeatedly received
merit raises. Petitioner also came forward with evidence that
respondent had not fired an African-American employee who
had been charged with a serious crime, but had instead per-
mitted that employee to be on unpaid leave until the criminal
case was resolved and had then reinstated the employee on a
favorable termination of criminal proceedings.
The Seventh Circuit upheld the district court’s dismissal
of petitioner’s FMLA claim,* (App. 5-7), and affirmed the
grant of summary judgment without reaching petitioner’s
arguments that the district court had improperly resolved
disputed questions of fact. Instead, the Court of Appeals
held that petitioner had failed to meet the burden imposed on
white discrimination plaintiffs to prove “background cir-
cumstances" showing that respondent "has reason or inclina-
tion to discriminate invidiously against whites." (App. 8.)
The Court of Appeals rejected petitioner’s argument that this
"background circumstances" requirement "imposes an unfair
burden to non-minority plaintiffs since a non-minority
4. Petitioner argued on appeal that he was entitled to
summary judgment on his FMLA claim because
respondent had represented that it had fired petitioner
because while he was on FMLA leave, it became apparent
that things ran smoother without him. The Seventh
Circuit mistakenly characterized this argument as a
"concession" by petitioner that he had been "terminated
because of the poor quality of his work." (App 6.)
Petitioner made no such concession, and has asserted
throughout this litigation that he was fired because had
been indicted on non-work related charges and that
respondent would not have fired a similarly situated
African-American employee.
il td ae” arc i
a
plaintiff must establish more facts to create the prima facie
case." (App. 8.)
REASONS FOR GRANTING THE WRIT
oh.
This case provides the Court with an opportunity to
resolve the conflict among the circuits about the proper stan-
dard of proof in cases of employment discrimination brought
by white plaintiffs.
Title VII of the Civil Rights me of 1964 protects persons
of all races from discrimination.” The basic framework to
establish a prima facie case of disparate treatment is set out
in the four factor test of McDonneil-Douglas v. Green, 411
U.S. 792 (1973).
Five circuits require a white person complaining of race
discrimination under Title VII to establish the four factors of
McDonnell-Douglas plus “background circumstances" that
the "defendant is that unusual employer who discriminates
against the majority."°
Three circuits have rejected a heavier burden for white
plaintiffs, reasoning that "[d]iscrimination is discrimination
no matter what the race, color, religion, sex, or national
5. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,
279 (1976).
6. Parker v. Baltimore & O.R. Co., 652 F.2d 1012, 1017
(D.C.Cir. 1981). See, e.g., Sutherland v. Michigan Dept of
Treasury, 344 F.3d 603, 614 (6th Cir. 2003); Mills v.
Health Care Service Corp., 171 F.3d 450, 457 (7th Cir.
1999); Gagnon v. Sprint Corp., 284 F.3d 839, 848 (8th
Cir. 2002); Mattioda v. White, 323 F.3d 1288, 1292 (10th
Cir. 2003).
7
origin of the victim."
The Court should resolve this conflict among the cir-
“10 8
cuits.
None of the circuits that apply the "background cir-
cumstances" test apply it in sex discrimination cases, where
' males and females have the same burden of proof. See, e.g.,
Lautermilch v. Findlay City Schools, 314 F.3d 271, 275 (6th
7. Bass v. Board of County Commissioners, 256 F.3d 1095,
1103-04 (11th Cir. 2001). See, e.g., Jadimarco v. Runyon,
190 F.3d 151 (3d Cir. 1999); Byers v. Dallas Morning
News, Inc., 209 F.3d 419, 426 (5th Cir. 2000).
g This issue does not appear to have arisen in the First
Circuit and was reserved by the Ninth Circuit in its
unpublished opinion in Teehee v. Board of Education, 116
F.3d 486 (table), 1997 WL 312222 (9th Cir. 1997). See
Lemnitzer v. Philippine Airlines, Inc., 816 F.Supp. 1441,
1448 (N.D.Cal. 1992) (refusing to apply “background
circumstances” test).
District courts in the Second and Fourth Circuits have
reached conflicting results:
Second Circuit: Olenick v. New York Telephone, 881
F.Supp. 113, 114 (S.D.N.Y. 1995) (adopting "background
circumstances" test); Ticali v. Roman Catholic Diocese of
Brooklyn, 41 F.Supp.2d 249, 260-262 (E.D.N.Y. 1999)
(rejecting "background circumstances" test);
Fourth Circuit: Green v. Clarendon County School
District, 923 F.Supp. 829, 840 (D.S.C. 1996) (requiring
"background circumstances"); Stock v. Universal Foods
Corp., 817 F.Supp. 1300, 1306 (D.Md._ 1993).
("background circumstances" not required ).
Cir. 2003); Logan v. Caterpillar, Inc., 246 F.3d 912, 919 (7th
Cir. 2001) Schoffstall, v. Henderson, 223 F.3d 818, 825 (8th
Cir. 2000); Babbar v. Ebadi, 216 F.3d 1086 (Table), 2000
WL 702428 (10th Cir. 2000). A similar equality should be
applied to race discrimination cases.
Petitioner came forward with evidence that he had been a
hard working ward superintendent and that he had repeatedly
received merit raises. Petitioner asserted that he had been
fired because he had been indicted and presented evidence
that defendant had not discharged a similarly situated
African-American ward superintendent who had been charged
with a serious crime. Petitioner also presented evidence that
defendant’s stated reason for his discharge was false. But for
the decision of the Seventh Circuit to apply the "background
circumstances" rule, petitioner would have been entitled to
present his race discrimination claim to a jury.
Title VII only requires that the plaintiff prove that the
employer "is treating some people less favorably than others
based upon a trait that is protected under Title VII." Jadi-
marco y. Runyon, 190 F.3d 151, 161 (3d Cir. 1999), The
"background circumstances" rule applied in this case inter-
feres with the remedy created by Title VII. Certiorari should
be granted to resolve the conflict among the circuits about
this addition to the McDonnell-Douglas prima facie case.
The decision of the Seventh Circuit reduces the right to
reinstatement of the Family and Medical Leave Act, 29
U.S.C. §2601, to mere precatory language.
A core provision of the FMLA is Section 2614(a)(1),
which requires that "[uJpon the employer’s timely return, the
employer must reinstate the employee to his or her former
position or an equivalent." Ragsdale v. Wolverine World
Wide, Inc., 535 U.S. 81, 86 (2002). The plain, every day
meaning of this provision is that an employee is free to take
ial i ila deanna eae,
~ o
leave without fear that the employer will conclude that things
run smoother without that employee. The decision of the
Seventh Circuit in this case reads this provision out of the
FMLA.
In this case, respondent conceded that it was because
petitioner had availed himself of FMLA leave that respondent
concluded that petitioner should be replaced. According to
respondent, while petitioner was on medical leave it becaine
apparent that his replacement "would be more efficient and
effective as the Ward Superintendent in the 23rd Ward," and
that there would be "fewer problems in the Ward" if peti-
tioner was replaced.”
We recognize that an employee on FMLA leave does not
gain immunity from being discharged; thus, an employee
. who would have been laid off during a reduction in force is
not entitled to any special treatment because she was on
FMLA leave at the time of the layoff. O’Connor v. PCA
Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2000).
The question presented in this case is whether an employee
may take FMLA leave free of fear that the employer will
conclude, as respondent did in this case, that things run
smoother without that employee.
9. Respondent did not, however, choose the temporary
replacement as the permanent ward superintendent after it
discharged petitioner.
CONCLUSION
It is therefore respectfully submitted that the petition for
writ of certiorari should be granted.
February, 2004
KENNETH N. FLAXMAN
200 South Michigan Avenue
Suite 1240
Chicago, Illinois 60604
Attorney for Petitioner
App. 1
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 02-3862
JAMES PHELAN
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
Appeal from the United States District Court
: for the Northern District of Illinois
No. 99 CV 40 —Ian H. Levin Magistrate-Judge.
Argued September 12, 2003—Decided October 21, 2003
Before Bauer, Kanne and Evans, Circuit Judges.
Bauer, Circuit Judge. The plaintiff James Phelan
brought suit after being dismissed from his position of “ward
superintendent" by. the City of Chicago. Phelan claimed that
the City 1) violated the Due Process Clause, 2) breached the
Family and Medical Leave Act, and 3) violated Title VII of
the Civil Rights Act. The district court granted the City’s
motion to dismiss Phelan’s first two causes of action and
disposed of the third on summary judgment. Phelan appeals.
We affirm.
BACKGROUND
Phelan was employed in two separate positions by the
City of Chicago. In 1992 he was hired by the City as a pol-
ice officer. In October 1993 the Chicago Police Department
granted him a leave of absence. In November 1995, while he
was on leave from the Police Department, Phelan was hired
by the City’s Department of Streets and Sanitation to work as
soe iON ASRS AS i lens h ia A vor
7
i
;
Y
?
4
App. 2
ward superintendent for the 23rd Ward. Phelan worked full
time as ward superintendent until July 1997 at which time
he took leave because of personal health problems, Phelan
exhausted all of his sick days but was still unable to return to ~
work. In September 1997, he applied for and was granted
leave under the Family and Medical Leave Act ("FMLA").
In September 1997 Phelan was indicted for mail fraud.
Shortly after his indictment, City personnel requested that he
resign. When he refused to resign, the City fired him.
Phelan’s discharge was processed the same day that he
officially returned from his FMLA leave. On October 27,
1997, Phelan requested that the City reinstate him to his
position as a probationary police officer. The City notified
Phelan that he no longer had employment with the Police
Department. Phelan then filed suit.
ANALYSIS
This court reviews the district court’s granting of motions
to dismiss the Due Process and FMLA claims under a de
novo standard of review. See Hickey v. O’Bannon, 287 F.3d
656, 657 (7th Cir. 1999). In reviewing the district court’s
decision, this court must accept all well-pleaded facts alleged
in the complaint as true and must draw all reasonable infer-
ences in favor of the non-movant. Lachmund v. ADM Inves-
tor Servs., Inc., 191 F.3d 777, 782 (7th Cir. 1999). A motion
to dismiss will succeed when "it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson, 355
U.S. 41, 45-46 (1957).
Similarly, this court reviews the district court’s dismissal
of the Title VII claim via summary judgment de novo.
Grayson v. City of Chicago, 317 F.3d 745, 749 (7th Cir.
2003). All facts will be viewed in a light most favorable to
the non-moving party, and summary judgment will be upheld
if there is no genuine issue of material fact. Id.
App. 3
lil. Due Process Claim
Phelan claims that the City’s termination of his
employment violated his Fourteenth Amendment Due Process
rights when the departments terminated him from his
positions as ward superintendent and police officer without
notice or a hearing. The Fourteenth Amendment states that
no state shall "deprive any person of life, liberty, or property,
without due process of law . . . ." U.S. Const. amend. XIV,
§1. In order to assert a violation of the Due Process clause,
a plaintiff must be able to show that 1) he or she had a
"property interest" and 2) that he or she was deprived of this
interest without due process of law. Bishop v. Wood, 426
U.S. 341, 343 (1976).
In the employment context, a property interest can be
created in one of two ways, "1) by an independent source
such as state law securing certain benefits; or 2) by a clearly
implied promise of continued employment." Shlay v.
Montgomery, 802 F.2d 918, 921 (7th Cir. 1986) (quoting
Munson vy. Friske, 754 F.2d 683, 692 (7th Cir. 1985)), Board
of Regents v. Roth, 408 U.S. 564, 577 (1972). Phelan is
unable to state that he has any interest in his employment via
the first method for creating a property interest. In his
pleadings, Phelan bases his claim to a property interest on
sections 2-100-110 and 2-74-060 of the Municipal Code.
These sections state the applicable procedures for termination
_ of "career service" employees. Unfortunately for Phelan, his
employment in the capacities of a police officer and a ward
superintendent are not classified as "career service" positions;
rather they are "exempt" and not entitled to any procedures
for dismissal. R.74 at Exh. K pars.3, 5. Specifically, the
Municipal Code distinguishes "career service" employees and
all other "career service exempt" employees. Municipal
Code of Chicago §2-74-030. Only those employees in career
service are afforded procedural protections for their
employment. Municipal Code of Chicago §2-74-060.
Hence, Phelan has no property interest in his position that
was created by any state or city law; he was an at will
App. 4
employee.
Absent an express agreement, an at will employee may
still prove a property interest in his or her employment under
the second test if there is a "clearly implied promise in their
continued employment." Shlay, 802 F.2d at 921, Perry v. Sin-
dermann, 408 U.S. 593 (1972). In cases regarding at will
employees, in order to demonstrate that there is an interest, a
plaintiff must show more than a "unilateral expectation" or
an "abstract need or desire" for the employment. Board of
Regents v. Roth, 408 U.S. 564, 577 (1972). In his amended
complaint, Phelan asserts that he was "hardworking, produc-
tive, and effective in the position of Ward Superintendent"
and that he "received favorable performance evaluations and
merit salary raises." Amended Complaint at par. 7. This
court has made it clear that these contentions are net enough
to meet the test for an implied contract. Specifically, in
Shlay, we stated that because the Chicago’s City Code expli-
citly defines different categories of employees as "career ser-
vice" or "career service exempt," other City employees can-
not make promises, implied or otherwise, of continued
employment that are contrary to the Code. Shlay, 802 F.2d
at 921-22 (discussing why a "career service exempt’
employee of the City of Chicago did not have a property
interest in his continued employment). Additionally, this
court found that other factors such as longevity of service,
| good performance reviews and periodic salary increases are
insufficient to show a property interest in continued employ-
ment. Id. at 922.
Phelan argues that under the notice pleading standard of
i the Federal Rules of Civil Procedure, he need not state facts
to show that he has a property interest in his employment.
This court has noted that, although pleading standards are
relaxed, a plaintiff must still plead "sufficient facts . . . to
allow the district court to understand the gravamen of the
plaintiff's complaint." Kyle v. Morton High School, 144 F.3d
448, 455 (7th Cir. 1998) (quoting Doherty v. City of
App. 5
Chicago, 75 F.3d 318, 326 (7th Cir. 1996). Even under the
relaxed standards, Phelan has not met these minimum
requirements in light of our earlier holding in Shlay. . Based
on the pleadings, it is clear that he cannot show any facts to
prove that his Due Process rights were violated.
iV. FMLA Claim
Phelan’s second claim is that his dismissal violates the
FMLA. The district court granted the City’s motion to
dismiss this claim. We affirm the district court’s ruling.
Enacted in 1993, the FMLA was designed to allow
employees to take periods of leave from their jobs for vari-
ous health and family related reasons. In furtherance of this
goal, the Act allows both for the employee to take leave and
to be reinstated when his or her leave is finished.
Specifically, the Act allows a worker to take unpaid leave for
a period of up to twelve weeks for reasons that include the
birth of a child, the illness of an immediate family member,
or the serious health condition of the employee himself. 29
U.S.C. §2612(1). Upon return the employee is guaranteed
reinstatement to the employee’s original position or an
"equivalent position." 29 U.S.C. §2614(1). The FMLA, how-
ever, does not entitle any employee to "any right, benefit, or
position of employment other than . . . [that] which the
employee would have been entitled had the employee not
taken leave." 29 U.S.C. §1614(3).
In the case at hand, Phelan elected to take leave under the
FMLA for a period of time from September 12, 1997 to
October 16, 1997. When he returned to work in October, he
was terminated. The City states that prior to Phelan’s
absence, the quality of his work had been poor, and during
his absence the employee hired to fill in for Phelan was more
satisfactory. For these reasons, the City chose to terminate
Phelan.
In cases such as this where an employee is terminated
while taking FMLA leave, the trial court must determine
App. 6
whether the termination was illegally motivated by the
employee’s choice to take leave, or whether the termination
was motivated by other, valid reasons. Kohls v. Beverly
Enterprises Wisconsin, Inc., 259 F.3d 799, 804 (7th Cir.
2001). Specifically, we have stated that:
With no absolute right to reinstatement, whether an
employer violates the FMLA turns on why the
employee was not reinstated. Clearly, an employee
may not be fired because she took leave—that
would be in direct violation of the statute. How-
ever, an employee may be fired for poor perfor-
mance when she would have been fired for such
performance even absent her leave.
Id. at 805.
In this case, the distinction is an easy one. Plaintiff con-
cedes that he was terminated because of the poor quality of
his work. Appellant’s Brief at 14-15. The City noted reports
made by superiors that Phelan was not managing his assigned
ward correctly, that he was unable to work effectively with
others, and that he "simply wasn’t getting the job done."
Appellant’s Brief, Short Appendix, at 37. More specifically,
the City noted complaints against Phelan stating that he
relied too heavily on employees working under him, he was
difficult to get a hold of via radio or pager (the normal
means to contact ward superintendents), and he refused to
drive the city van during working hours; Phelan was ulti-
mately suspended for three days due to similar problems ©
prior to taking his medical leave. Id. at 33-35. Phelan
argues that his termination violates the FMLA because it was
made while he was on FMLA leave. More specifically,
Phelan asserts that the City decided to terminate him for poor
performance only after seeing how much better his temporary
replacement could perform his job. This, Phelan asserts, is
an improper motivation for his termination.
App. 7
This court directly addressed a similar situation in Kohls.
In that case, an employee at a nursing home took approxi-
mately two months of leave under the FMLA. Id. at 802.
While the employee was on leave, the nursing home hired a
replacement who performed the job better than the employee.
Id. When the employee returned to work, she was ter-
minated. Id. This court held that the termination did not
violate the FMLA, specifically noting that:
does not itself demonstrate that [the employee]
would not have been terminated if she had not
taken leave. [The employer] would have been enti-
tled to fire [the employee] for mismanagement and
mishandling of funds regardless of whether she had
taken leave or not.
Id. at 806. Put simply, an employee is not afforded greater
rights than he would otherwise have merely because he takes
FMLA leave. Hence, it is not in violation of the FMLA for
the City to dismiss Phelan for poor performance, regardless
of when the City came to that decision. For this reason, the
district court’s granting of the motion to dismiss was proper.
Phelan failed to allege any facts that, if taken as true, would
constitute a violation of the FMLA.
V. Equal Protection Claim
Finally, Phelan, a Caucasian man, argues that his dismis-
sal violated Equal Protection provided by the Fourteenth
Amendment and §1983 because the City of Chicago treated
him unfairly due to his race. The district court granted the
City’s motion for summary judgment regarding this claim.
Title VII of the Civil Rights Act of 1964 makes it unlaw-
ful for an employer to "fail or refuse to hire or to discharge
any individual . . . because of such individual’s race... ."
42 U.S.C. §2000e-2(a)(1). An employee may show such
incidents of illegal discrimination through direct proof, or in
the absence of such proof, an employee may make a case
with sufficient indirect proof, and upon doing so, switch the
burden of proof to the employer. In this case, Phelan
App. 8
proceeds with indirect proof.
The first test developed by the Supreme Court for show-
ing employment discrimination through indirect proof was
established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). Under that decision, the plaintiff must first
demonstrate facts that build a prima facie case of discrimina-
tion. The prima facie case consists of a showing by the
plaintiff
(i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the
employer was seeking applicants; (iii) that, despite
his qualifications, he was rejected; and (iv) that,
after his rejection, the position remained open and
the employer continued to seek applicants from per-
sons of complainant’s qualifications. '
McDonnell Douglas Corp., 411 U.S. at 802. Over time,
courts have modified the test to fit a variety of situations.
Recently, the Seventh Circuit modified the test to apply to
situations where members of majority groups believe they
were subject to employment discrimination. Mills v. Health
Care Service Corp., 171 F.3d 450, 457 (1999). This court
noted that in such cases of "reverse discrimination," the first
prong of the McDonnell test cannot be used. Id. In its stead,
a plaintiff must show “background circumstances" that
demonstrate that a particular employer has "reason or inclina-
tion to discriminate invidiously against whites" or evidence
that "there is something ‘fishy’ about the facts at hand." Id.
at 455 (quoting Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir.
1993)).
Phelan argues that this new and different prong imposes
an unfair burden to non-minority plaintiffs since a non-
minority plaintiff must establish more facts to create the
prima facie case. Indeed, this circuit considered that issue in
determining how to modify the McDonnell Douglas test to fit
incidents concerning reverse discrimination. Mills v. Health
App. 9
Care Service Corp., 171 F.3d 450, 456-57 (7th Cir. 1999).
However, this court has recognized that discrimination by
employers against white men is a less common phenomenon
than discrimination against minorities. Id. For that reason,
in order to gain the substantial benefits conferred by the use
of the McDonnell Douglas test,! the non-minority plaintiff
must be able to plead facts to show why it is likely in this
case, that an employer had engaged in such unusual behavior.
This court stated explicitly that "this modified test is not to
be interpreted in a constricting fashion . . . [i]t in no way
precludes any plaintiff with direct evidence of discrimination
from bringing his claim." Id. at 457. Hence, Phelan must be
able to show direct evidence of the racial discrimination
waged against him, or meet all the elements of the prima
facie case as outlined in Mills.
Applying this modified prima facie test to the case at
hand, Phelan is unable to demonstrate the necessary "back-
ground circumstances"; that is to say, he does not state that
there is reason to believe his superiors within the City of
Chicago would be inclined to discriminate against white men.
Phelan is a white man; his superiors were white men; the
worker selected by these superiors to replace Phelan was a
white man. Additionally, Phelan cannot show that there was
anything "fishy" about his termination that would suggest
reverse discrimination. The City stated that an abundance of
poor work habits led to his dismissal. Phelan argues that the
1. The McDonnell Douglas test was created to remedy
discrimination against groups that have historically
suffered; the test is a powerful tool to do so because it
creates an inference of discrimination on the part of
employers in the absence of direct evidence of
discrimination. Id.
App. 10
City’s proffered reason was false, and alternatively that he
was dismissed because his replacement was better than him,
or that he was dismissed because of the criminal indictment
levied against him. Even if Phelan is correct in asserting that
the City misrepresented its "real" reason for terminating
Phelan in this way, neither of these alternate theories provide
"fishy" circumstances that raise an inference of racial
discrimination--or any illegal or improper behavior for that
matter.
Phelan also argues that according to a recent case, Hunt
v. City of Markham, Ill., 219 F.3d 649 (7th Cir. 2000), this
Circuit did not require a showing of unusual background cir-
cumstances. Phelan misunderstands this case. In Hunt, this
court did not apply the McDonnell Douglas ee because the
plaintiffs had direct evidence of discrimination,” and
For these reasons, we AFFIRM.
2. In their complaint, the plaintiffs stated that the city
officials openly discriminated against them and made such
statements as "it is the blacks’ turn to self-govern in
Markham, and if you are white, get out" and “it is our
turn; you are the minority now; you hence did not need
the aid of McDonnell Douglas. Id. at 652. Unlike Hunt,
Phelan does not offer any such direct proof. Had he done
so, he would be correct in arguing that he need not meet
the modified Mills test. In the absence of such an offer,
Hunt is of no help to Phelan.
4
§
4
b
App. 11
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 02-3862
JAMES PHELAN
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois
No. 99 CV 40 —lIan H. Levin Magistrate-Judge.
[October 21, 2003]
JUDGMENT — ORAL ARGUMENT
Honorable William J. Bauer, Circuit Judge
Honorable Michael S. Kanne, Circuit Judge
Honorable Terence T. Evans, Circuit Judge
The judgment of the District Court is AFFIRMED, with
costs, in accordance with the decision of this court entered on
this date.
App. 12
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 02-3862
JAMES PHELAN
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois
No. 99 CV 40 —Ian H. Levin Magistrate-Judge.
{November 21, 2003]
ORDER
Honorable William J. Bauer, Circuit Judge
Honorable Michael S. Kanne, Circuit Judge
Honorable Terence T. Evans, Circuit Judge
On consideration of the petition for rehearing and sugges-
tion for rehaering en banc filed in the above-captioned case
by plaintiff-appellant, all of the judges on the original panel
have voted to DENY the petition for rehearing and no judge
in active service has requested a vote ont he petition for
rehearing en banc.' Accordingly, the petition for rehearing
and suggestion for rehearing en banc is DENIED.
1. Chief Judge Joel M. Flaum took no part in the
consideration of this case.
ee ee
App. 13
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
No. 99 CV 40
JAMES PHELAN
Plaintiff,
CITY OF CHICAGO,
Defendants.
MEMORANDUM OPINION AND ORDER
LEVIN, United States Magistrate Judge.
Plaintiff James Phelan ("Plaintiff") has brought a four-
count Amended Complaint alleging that his employment with
the City of Chicago ("City") was unlawfully terminated in
October of 1997. The City moves the court to dismiss Counts
I, II, and III of Plaintiff's Amended Complaint for failure to
state a claim upon which relief can be granted pursuant to
Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the
court grants the City’s motion to dismiss.
BACKGROUND FACTS
In 1992, Plaintiff was hired by the City as a police
officer. (Am.Compl. par. 5.) After Plaintiff took a leave of
absence from the City to serve as an Illinois State Represen-
tative, he graduated from the Chicago Police Academy in
September of 1993. (id.) In October of 1993, the Chicago
Police Department granted Plaintiff a leave of absence which
was extended through 1996. (Id.)
In November of 1995, while Plaintiff was on leave from
the Chicago Police Department, he was hired by the City’s
Department of Streets and Sanitation to work as Ward Super-
intendent for the 23rd Ward. (Am.Compl. par. 6.) Plaintiff
worked full-time as Ward Superintendent until July of 1997
(
App. 14
at which time he took leave because of personal health prob-
lems. (Id. par. 9.) Plaintiff exhausted all of his sick days
and was still unable to return to work. (Id.) In September of
1997, he applied for and was granted leave under the Family
and Medical Leave Act ("FMLA"). (Id. pars. 9-10.)
In September of 1997, Plaintiff was indicted for mail
fraud. (Am.Compl. par. 11.) The indictment did not involve
any allegations of misconduct related to Plaintiff's employ-
ment with the City. (Id.) Shortly after Plaintiff's indictment
was publicly announced, City personnel requested that Plain-
tiff resign from his position as Ward Superintendent. (Id. par.
12.) When Plaintiff refused to resign, the City informed him
that he was being terminated from his position effective
October 23, 1997. (Id. par. 13.) On the same day, Plaintiff
was reinstated to his Ward Superintendent position from
FMLA leave and his discharge from the Department of
Streets and Sanitation was processed. (Id. par. 14.)
On October 27, 1997, Plaintiff requested that the City
reinstate him to his position as probationary police officer.
4. par. 15.) The next day, the City delivered a letter to
Plaintiff stating that as of October 24, 1997 his "resignation
has been processed." (Id.) Plaintiff had at no time resigned
from the Chicago Police Department. (Id.) Plaintiff, subse-
quently, filed the subject Amended Complaint. As is pertinent
here, in Count I, Plaintiff alleges Fourteenth Amendment Due
Process and §1983 claims stating that he was terminated
from his position as Ward Superintendent, as to which he
alleges a protected property interest, because he was not
afforded notice of the termination and he was not given a
hearing prior to his discharge. (Am.Compl. par. 18.) In
Count II, Plaintiff alleges that he was terminated while on a
FMLA leave, in violation of the FMLA. (Id. par. 19.) In
Count III, Plaintiff alleges an equal protection and §1983
claim asserting that after his termination as Ward Superinten-
dent, he was not permitted to seek reinstatement as a police
officer due to intentional and arbitrary discrimination. (Id. p
App. 15
20.)
|.A MOTION TO DISMISS STANDARD
The purpose of a motion to dismiss under Fed.R.Civ.P.
12(b)(6) is to test the sufficiency of the complaint, and not to
decide its merits. Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). Courts read complaints liberally and a
motion to dismiss will be granted only if "it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gib-
son, 355 U.S. 41, 45-46 (1957). In reviewing a motion to
dismiss, the district court must treat all well-pleaded allega-
tions as being true and draw all reasonable inferences in the
light most favorable to the plaintiff. Henderson v. Sheahan,
196 F.3d 839, 845 (7th Cir. 1999), cert. denied, 530 U.S.
1244 (2000). "The issue is not whether a plaintiff will ulti-
mately prevail but whether the claimant is entitled to offer
evidence to support the claims." Scheuer v. Rhodes, 416 U.S.
232, 236 (1974).
At the same time, a plaintiff must include in the com-
plaint allegations concerning all material elements necessary
for recovery under the relevant legal theory. Chawla v.
Klapper, 743 F.Supp. 1284, 1285 (N-D.IIl. 1990). This
requirement, however, must be considered in light of the
federal system of notice pleading, which merely requires that
a plaintiff set out in the complaint a short and plain state-
ment of the claim that provides the defendant with fair notice
of what the claim is and the grounds upon which it rests.
McCormick v. City of Chicago, 230 F.3d 319, 323-26 (7th
Cir. 2000); Scott v. City of Chicago, 195 F.3d 950, 951 (7th
Cir. 1999). For fair notice to be given, "[a] complaint must
at least "include the operative facts upon which a plaintiff
bases his claims.’" Lucien v. Preiner, 967 F.2d 1166, 1168
(7th Cir. 1992) (quoting Rodgers v. Lincoln Towing Service,
Inc., 771 F.2d 194, 198 (7th Cir. 1985)). The issue the court
reviews is whether "sufficient facts [have been] pleaded to
allow the court and the defendants to understand the grava-
men of the plaintiff's complaint." Doherty . City of Chicago,
Seth Pu toa a. ey ee ee
App. 16
75 F.3d 318, 326 (7th Cir. 1996); Kyle v. Morton High Sch.,
144 F.3d 448, 455 (7th Cir. 1998).
ANALYSIS
lll. DUE PROCESS CLAIM (COUNT }).
il.A PLAINTIFF FAILS TO STATE A DUE PROCESS
CLAIM IN VIOLATION OF THE FOURTEENTH
AMENDMENT BECAUSE HE DOES NOT ALLEGE A
PROTECTED PROPERTY RIGHT.
For a plaintiff to assert a violation of the Due Process
Clause of the Fourteenth Amendment, he must demonstrate
that he has a protected property interest in his employment.
Bishop v. Wood, 426 U.S. 341 (1976); Board of Regents v.
Roth, 408 U.S. 564 (1972). A property interest requires
more than a "unilateral expectation" or "abstract need" for the
benefit sought. Roth, 408 U.S. at 577. To allege a property
interest, a plaintiff must "have a legitimate claim of entitle-
ment to it." Id. Such claims of entitlement are "created and
their dimensions are defined by existing rules or understand-
ings that stem from an independent source such as state
law—tules or understandings that secure certain benefits and
that support claims of entitlement to those benefits." Id.
Therefore, in order for a plaintiff to survive a motion to
dismiss a due process claim he "must be able to allege that
he has a constitutionally protected property interest in the
expectation of continued public employment; and the
existence of such an interest is determined by reference to
state law." McElearney v. Univ. of Illinois, 612 F.2d 285,
289-90 (7th Cir. 1979) (on defendant’s motion to dismiss,
"examination of relevant state law, consisting of state sta-
tutes, case law, and university statutes, establishes that there
is no protected property interest”).
Plaintiff rests his claim of entitlement to the Ward Super-
intendent position on Sections 2-100-110 and 2-74-060 of the
Municipal Code of Chicago ("Municipal Code"). (Am.Compl.
par.7.) However, neither provision supports Plaintiff's claim.
App. 17
Section 2-100-110 of the Municipal Code does no more than
refer to Ward Superintendents as employees of the Depart-
ment of Streets and Sanitation. Section 2-74-060 provides
for hearings for City employees, but by its express terms, it
- applies only to "career service" employees. It states in per-
tinent part:
The personnel board, a member thereof, or a hearing
officer appointed by the board shall conduct a hearing of
all appeals by any career service employee of discharge,
demotion, or suspension for a period of more than ten
days upon request of the employee, and may provide by
rule for review of suspensions of ten days or less.
(emphasis added.)
Section 2-74-060 is consistent with Section 2-74-050(12)
of the Municipal Code which gives the City’s Commissioner
of Personnel the power to issue personnel rules that provide,
inter alia,
(12) For the establishment of disciplinary measures such
as suspension, demotion in rank or grade, or discharge.
For all permanent employees in the career service, such
measures shall provide a statement of the charges on
which discipline is based, together with an explanation of
the evidence supporting the charges and an opportunity for
the employee to respond to the charges in writing before
action is taken, appeals after such disciplinary action, and
a hearing on the charges upon request of the employee in
case of discharge, demotion, or suspension exceeding 30
days, consistent with the requirements of due process of
law. (emphasis added.)
The Municipal Code sections relied on by Plaintiff thus
clearly create property rights only with respect to "career ser-
vice" City employees. ! The Code does not provide
App. 18
procedures for non-career service employees to challenge
their termination, nor does it provide that non-career service
employees may be discharged only "for cause." See also
Misek v. City of Chicago, 783 F.2d 98, 99-100 (7th Cir.
1986) (plaintiffs were found to have property interests in
their jobs, because they were career service employees.)
Because Plaintiff has not alleged that he was a career service
employee and has pleaded no other alleged basis for a pro-
tected property right in his job’ he has not established a basis
of entitlement to his position as Ward Superintendent within
the meaning of the Due Process Clause of the Fourteenth
Amendment.°
1. See Section 2-74-030 of the Municipal Code establishing
classifications of City employees, including career service
employees (Section 2-74-030(13)) and career service
exempt employees (Section 2-74- 303(12)).
See, e.g., Shlay v. Montgomery, 802 F.2d 918, 921 (7th
Cir. 1986).
3. The Amended Complaint refers once to unspecified "City
of Chicago Personnel Rules." (Am. Compl. par. 18; see
also Pl.’s Resp. Mem. at 3.) This appears to be referring
to the subject Municipal Code. In any event, besides this
"Rule" reference being inappropriately conclusory, it
suffices to say that these Personnel rules are issued
pursuant to the same Municipal Code discussed herein
(Section 2-74-050) and thus doesn’t create greater rights
than already discussed herein regarding that Municipal
Code.
i)
App. 19
1.8 ALTERNATIVELY: PLAINTIFF FAILS TO PLEAD AN
UNLAWFUL MUNICIPAL POLICY UNDER §1983 AS
TO HIS DUE PROCESS CLAIM.
In order for a plaintiff to state a §1983 claim against a
municipality, he must allege the existence of a municipal
policy or custom which caused the alleged violation. Monell
v. Dep’t of Soc. Servs. of the City of New York, 436 US.
658, 690-91 (1978). A municipality can be liable under
§1983 only where its policy(s) is the "moving force" behind
the constitutional violation; i.e., the city’s policy must be the
source of the discrimination. Samuel v. City of Chicago, 41
F.Supp.2d 808, 810 (N.D.IIl. 1999) and cases there cited. To
allege that a municipal policy has violated an individual’s
civil rights under §1983, a plaintiff needs to set forth (1) an
express policy that, when enforced, causes a constitutional
deprivation; or (2) a widespread practice that, although not
authorized by express municipal policy, is so permanent and
well-settled that it amounts to a custom with the force of
law: or (3) a constitutional injury caused by a person with
final policymaking authority. Baxter by Baxter v. Vigo
County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994).
Plaintiffs in a §1983 case against a municipality, though,
are required to comply only with the conventional standards
of notice pleading; they are not required to meet any
heightened pleading standard. Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163,
165 (1993). Plaintiffs need not “allege all, or any of the
facts logically entailed by the claim ... A plaintiff does not
have to plead evidence ... [A] complaint does not fail to state
a claim merely because it does not set forth a complete and
convincing picture of the alleged wrongdoing." American
Nurses’ Assoc. v. Illinois, 783 F.2d 716, 727 (7th Cir. 1986).
A plaintiff, nevertheless, must do more than plead an empty
allegation of municipal policy to state a §1983 claim. Taylor
v. City of Chicago, 1997 WL 51445, at *2 (N.D.Ill. Feb. 3,
1997); (citing Doherty, 75 F.3d at 326; McTigue v. City of
Chicago, 60 F.3d 381, 382 (7th Cir. 1995)). "Boilerplate
App. 20
allegations of a municipal policy, entirely lacking in any fac-
tual support that a city policy does exist, are insufficient."
Sivard v. Pulaski County, 17 F.3d 185, 188 (7th Cir. 1994).
A plaintiff must plead operative facts which form the basis of
the claim. McCormick, 230 F.3d at 325.
In the Amended Complaint here, however, there is no
mention at all of a municipal "policy." Thus, there simply is
no allegation, conclusory or factual, to support a §1983 due
process policy claim against the City here.* Moreover,
Plaintiff's citation of Sledd v. Lindsay, 102 F.3d 282 (7th
Cir. 1996) and Lanigan vy. Village of East Hazel Crest, 110
F.3d 467 (7th Cir. 1997), respectfully, is misplaced. In both
of these cases, unlike here, the plaintiffs expressly alleged
that the municipalities had maintained certain official policies
that violated the plaintiff’s civil rights.
IV. PLAINTIFF FAILS TO ALLEGE A VIABLE CLAIM
UNDER THE FAMILY AND MEDICAL LEAVE ACT
(COUNT Il)
In Count II, Plaintiff alleges that he was terminated from
his position as Ward Superintendent while on a FMLA leave,
in violation of the FMLA. 29 U.S.C. s 2601 et seq.
(Am.Compl.p 19.) The City argues that this allegation is
insufficient, even under federal notice pleading standards, to
state a claim under the FMLA. (Def.’s Mem. at 8.) The
court agrees.
4. In fact, the Amended Complaint, in essence, alleges not
that City policy caused a deprivation (as is required), but
that the City’s act of discharging Plaintiff without notice
or a hearing actually runs counter to City policy.
(Am.Compl. pars. 14, 18.)
App. 21
Plaintiff does not allege he was discharged because he
sought or took an FMLA leave; rather, Plaintiff alleges only
that he was discharged "while on a FMLA leave."
(Am.Compl.p 19.) The FMLA, however, prevents employers
only from discriminating against employees for requesting
leave authorized by the Act. 29 U.S.C. s 2617; Hypes v.
First Commerce Corp., 134 F.3d 721, 725-26 (Sth Cir. 1998).
Therefore, if, as here, Plaintiff fails to allege that his
discharge was motivated by his request for leave there is no
liability under the FMLA. Id. See also Bennett v. Schmidt,
153 F.3d 516, 518 (7th Cir. 1998). Under the FMLA, there is
no absolute right not to be discharged while on such a leave.
Kariotis v. Navistar Int’! Transp. Corp., 131 F.3d 672, 681
(7th Cir. 1997) (employee has "no greater right to reinstate-
ment or to other benefits and conditions of employment than
if employee had been continuously employed during the
FMLA leave period," citing 29 C.F.R. s 825.216(a)). See also
Clay v. City of Chicago, 143 F.3d 1092, 1094 (7th Cir. 1998)
(plaintiff, who was not reinstated to her job on returning
from FMLA, but instead was advised she would be
discharged, could not show her discharge was for taking
FMLA leave and therefore could not prove a violation of the
statute).
In short, Plaintiff has not alleged any legal wrong under
the FMLA.
V. EQUAL PROTECTION CLAIM (COUNT Ill)
V.A PLAINTIFF HAS FAILED TO ALLEGE AN EQUAL
PROTECTION CLAIM.
Plaintiff alleges that his Fourteenth Amendment equal
protection rights were violated when he was discharged and
not reinstated to his former position as police officer. (Def.’s
Mem. at 4.) Initially, Plaintiff is not alleging an equal protec-
tion claim based on his membership in a particular class or
vulnerable group. See, e.g., New Burnham Prairie Homes,
Inc. v. Village of Burnham, 910 F.2d 1474, 1481-82 (7th Cir.
1990); Smith v. Town of Eaton, 910 F.2d 1469, 1472 (7th
—
TS
AIRE SESE Bar 0 ae Secale
ieee, PAAR
ak:
App. 22
Cir. 1990), cert. denied, 499 U.S. 962 (1991). Also, the City
notes, inter alia, that Plaintiff has not alleged any fundamen-
tal right that he is seeking to protect. Accordingly, where, as
here, there is no suspect classification or fundamental right
asserted, the government action that has been challenged is
not subject to strict scrutiny. Instead, that action need only
bear a rational relationship to a legitimate governmental pur-
pose. Turner v. Glickman, 207 F.3d 419, 424 (7th Cir. 2000);
Wroblewski y. City of Washburn, 965 F.2d 452, 458 (7th Cir.
1992).
When applying the described rational basis standard,
courts presume that the challenged governmental action is
constitutional. Wroblewski, 965 F.2d at 459 (citing City of
New Orleans v. Dukes, 427 U.S. 297, 303 (1976)). Review
under the rational basis test "is not a license for courts to
judge the wisdom, fairness or logic" of the government
action. FCC v. Beach Comm., Inc., 508 U.S. 307, 313 (1993).
For a plaintiff to overcome the presumption of rationality, he
must meet a heavy burden of showing that the challenged
governmental action was "completely ludicrously arbitrary."
Pontarelli Limousine, Inc. v. City of Chicago, 929 F.2d 339,
342 (7th Cir. 1991).
Plaintiff expressly recognizes that as an essential element
of his equal protection claim he must allege that there is “no
rational basis" for the City’s acts. (Pl.’s Resp. Mem. at 5,
quoting Village of Willowbrook v. Olech, 528 U.S. 562
(2000).) Plaintiff, however, has not alleged an absence of
rational basis for the City’s acts.- In fact, to the contrary,
5. To make out a prima facie case of "no rational basis" in a
class of one "equal protection" case, the plaintiff, very
strictly, must present that the defendant deliberately
sought to deprive the plaintiff of equal protection for
reasons "of a personal nature" unrelated to the duties of
the defendant’s position. Hilton v. City of Wheeling, 209
3
s
‘
App. 23
Plaintiff does not dispute the City’s point that a rational basis
existed for the discharge; that is, Plaintiff was indicted on
federal mail fraud charges. Accordingly, Plaintiff has failed
to state an equal protection claim regarding his subject termi-
nation.
V.B PLAINTIFF’S EQUAL PROTECTION CLAIM IS
BARRED BY THE STATUTE OF LIMITATIONS
As seen, Plaintiff alleges the City failed to reinstate him
to a position as a police officer, in violation of the equal pro-
tection clause. (Am.Compl. par. 20.) Even, arguendo, if
Plaintiff's equal protection claim were otherwise viable, how-
ever, this claim is untimely.
The statute of limitations for §1983 claims in Illinois is
two years. Northen v. City of Chicago, 126 F.3d 1024, 1026
(7th Cir. 1997). Plaintiff did not allege in his original com-
plaints in this cause that he unlawfully was denied reinstate-
ment to a position as police officer. That adverse employ-
ment action was raised for the first time in his Amended
Complaint filed on or about August 4, 2000. Plaintiff alleges
he was denied reinstatement on October 28, 1997
(Am.Compl. par. 15), more than two years before the
Amended Complaint was filed. That claim, therefore, is time
barred and subject to dismissal. See e.g., Kauthar SDN BHD
v. Sternberg, 149 F.3d 659, 670 (7th Cir. 1998); Tregenza v.
Great Amer. Communications Co., 12 F.3d 717, 718 (7th Cir.
1993).
aR NS ea CT LI ET) AR a EH WR RD ee ae Ee Ibe ee Oy Rae me Sk
F.3d 1005, 1008 (7th Cir. 2000). This must entail
"vindictive action" which requires proof of a "totally
illegitimate animus" toward the plaintiff by the defendant.
Id.
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App. 24
Citing Rule 15(c)(2)° Plaintiff contends that his discharge
as a probationary police officer is not limitations barred as it
arose out of the "same conduct, transaction or occurrence" as
his discharge as Ward Superintendent set forth in the original
pleading(s) herein. The court finds, however, that Plaintiff’ s
claim that the Chicago Police Department failed to rehire him
as a police officer does not relate back to the claim that the
Department of Streets and Sanitation discharged him from his
employment as Ward Superintendent. These separate
employment actions at different times by different City
departments involving different jobs do not constitute the
"same conduct, transaction or occurrence" under Rule
15(c)(2).
V.C ALTERNATIVELY: PLAINTIFF FAILS TO PLEAD AN
UNLAWFUL POLICY UNDER §1983 AS TO HIS
EQUAL PROTECTION CLAIM.
This §1983 equal protection policy claim of Plaintiff's
falls for the same reason(s) set forth in Plaintiff's §1983 due
process claim, (Section I.B, supra.) Accordingly, Section I.B
of this opinion, supra, is incorporated herein by reference
(except for Footnote 4 thereunder).
CONCLUSION
In view of the foregoing, the City’s motion to dismiss
Counts I, II, and III of Plaintiff's Amended Complaint is
granted.
6. 15(c)(2) Fed.R.Civ.P.
App. 25
IN THE UNITED STATES DISTRICT COURT FOR THE
' NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
No. 99 CV 40
JAMES PHELAN
Plaintiff,
CITY OF CHICAGO,
Defendants.
MEMORANDUM OPINION AND ORDER
LEVIN, United States Magistrate Judge.
Plaintiff James Phelan ("Plaintiff") seeks recovery against
Defendant City of Chicago (the "City") for reverse race
discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. s 2000e et seq. Pending
before the Court is the City’s Motion for Summary Judge-
ment. For the reasons set forth below, the Court grants the
City’s Motion for Summary Judgment.
BACKGROUND FACTS
Plaintiff was first hired by the City as a police officer in
1992. (2nd. Am.Compl.par. 4.) After Plaintiff took a leave
of absence from the City to serve as an Illinois State
Representative, he graduated from the Chicago Police
Academy in September of 1993. (Id.) In October of 1993,
the Chicago Police Department granted Plaintiff a leave of
absence, which was subsequently extended for twelve month
periods in 1994, 1995, and 1996. (Id. par. 6.)
On November 1, 1995, while Plaintiff was on leave from
the Chicago Police Department, he was hired by the City’s
Department of Streets and Sanitation to fill the Ward Super-
intendent position for the 23rd Ward. (2nd. Am.Compl.par.
7.) Eileen J. Carey (Caucasian), the Commissioner of the
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App. 26
Department of Streets and Sanitation, interviewed Plaintiff
and made the decision to hire him for the Ward Superinten-
dent position.! (Def.’s LR56. 1(a)(3) St. par. 15, 18.) In his
position as Ward Superintendent, Plaintiff typically super-
vised two Refuse Collection Coordinators and twenty-two
| laborers who operated ten garbage trucks and one street
sweeper. (Def.’s LR56. 1(a)(3) St. par. 22.) Plaintiff s
immediate supervisor was Thomas Ryan (Caucasian), the
i Superintendent for Division IV of the Bureau of Sanitation,
{ Department of Streets and Sanitation. (Id. par. 19.) Ryan
i reported to Michael Picardi (Caucasian), the General Superin-
tendent for the Department of Streets and Sanitation, Bureau
of Sanitation. (Id. par. 20.) Picardi reported to Sanchez who
in turn reported to Carey.” (Id.)
‘ Plaintiff worked full-time as Ward Superintendent until
June of 1997, when he took a leave of absence because of
; personal health problems. (Def.’s LR56. 1(a)(3) St. par. 50;
: Catharine Mullen Hennessy Aff. par. 3.) Subsequently, in
j September of 1997, while Plaintiff was still on leave, he
; applied for and was granted leave under the Family and
{ Medical Leave Act ("FMLA"). (Id.) In September of 1997,
: Plaintiff was indicted for mail fraud. (2nd. Am.Compl.par.
15.) The indictment did not involve any allegations of
1. Alfred Sanchez (Hispanic), Deputy Commissioner of the
‘ Department of Streets and Sanitation also interviewed
: Plaintiff for the Ward Superintendent position and
; recommended to Carey that she hire Plaintiff. (Def.’s
: LR56. 1(a)(3) St. par. 16, 17.)
William Bresnahan (Caucasian) was the Assistant
Commissioner of the Department of Streets and Sanitation
during the relevant period. (Def.’s LR56. 1(a)(3) St. par.
at)
nN
App. 27
misconduct related to Plaintiff's employment with the City.
(Id.) Plaintiff was subsequently acquitted of the mail fraud
charges. (Id.)
In October of 1997, when Plaintiff returned from his
leave of absence, Carey terminated him because of his poor
performance.” (Def.’s LRS56. 1(a)(3) St. par. 59.) Carey
informed Bresnahan of her decision to terminate Plaintiff's
employment, and explained that a change was being made
with the Ward Superintendent in the 23rd Ward. (Id. par. 60.)
On October 16, 1997, Plaintiff and his attorney met with
Bresnahan and Sanchez. (Def.’s LR56. 1(a)(3) St. par. 63.)
During the meeting, Plaintiff was given a termination letter
and told by Sanchez that he was being terminated because he
was an ineffective Ward Superintendent. (Id. par. 64.) Upon
the advice of his attorney, Plaintiff signed the termination
letter and Bresnahan provided Plaintiff with a copy of the
letter. (Id. par. 65.) Plaintiff's reinstatement from his leave
of absence and termination were processed with an effective
date of October 23, 1997. (Id. par. 66.)
3. The issues involving Plaintiff’s poor performance included
the fact that he could not get his ward cleaned in a timely
manner; his superiors’ were unable to locate him when he
was suppose to be accessible; he was not able to answer
basic questions regarding the status of his ward’s clean-up
efforts; his reliance on two coordinators working under
him; and his refusal to use the assigned City van during
working hours. (See Def.’s LR56. 1(a)(3) St. paras. 25,
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App. 28
LEGAL STANDARD
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show 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). See also Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). Once
the moving party has produced evidence to show that it is
entitled to summary judgment, the party seeking to avoid
such judgment must affirmatively demonstrate that a genuine
issue of material fact remains for trial. LINC v.Fin. Corp. v.
Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997).
In deciding a motion for summary judgment, a court must
"review the record in the light most favorable to the
nonmoving party and to draw all reasonable inferences in
that party’s favor." Vanasco v. National-Louis Univ., 137
F.3d 962, 964 (7th Cir. 1998). See also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d
202 (1986). Nevertheless, the nonmovant may not rest upon
mere allegations, but "must set forth specific facts showing
that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
See also LINC, 129 F.3d at 920. A genuine issue of material
fact is not shown by the mere existence of "some alleged
factual dispute between the parties," Anderson, 477 U.S. at
247, 106 S.Ct. 2505, 91 L.Ed. 2d 202 or by “some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed. 2d 538 (1986). Rather, a genuine issue
of material fact exists only if "a fair-minded jury could return
a verdict for the [nonmoving party] on the evidence
presented." Anderson, 477 U.S. at 252, 106 S.Ct. 2505, 91
L.Ed. 2d 202.
"(SJummary judgment is improper in a discrimination
case where a material issue involves any weighing of
conflicting indications of motive and intent." Stumph v.
App. 29
Thomas & Skinner, Inc., 770 F. 2d 93, 97 (7th Cir. 1985),
citing, Kephart v. Inst. of Gas Tech., 630 F. 2d 1217, 1218
(7th Cir. 1980). On the other hand, the Seventh Circuit in
Palucki v. Sears, Roebuck & Co., 879 F. 2d 1568, 1573 (7th
Cir. 1989) explained that summary judgment can be
appropriate in employment discrimination cases when:
. realization that Title VII is occasionally or perhaps
more than occasionally used by plaintiffs as a substitute
for principles of job protection that do not yet exist in
American law, [has] led the courts to take a critical look
at efforts to withstand ... summary judgment. A district
judge faced with such a motion must decide ..._ whether
the state of the evidence is such that, if the case were tried
tomorrow, the plaintiff would have a fair chance of
obtaining a verdict. If not, the motion should be granted
and the case dismissed.
ANALYSIS
I. MOTION TO STRIKE
Plaintiff first moves to strike over forty paragraphs of the
City’s Statement of Undisputed Material Facts submitted in
support of its Motion for Summary Judgment. For the fol-
lowing reasons, the Court denies, in part, and grants, in part,
Plaintiff's Motion to Strike.
Plaintiff first contends that the facts delineated in para-
graphs 10-14, 16, 17, 19-21, 23-43, 49, 53-62 and 80 should
be stricken because they are not "of consequence" pursuant to
Rule 401 of the Federal Rules of Evidence to a determination
of whether the City is entitled to summary judgment because
they primarily relate to performance problems which Plaintiff
claims are irrelevant or unknown by Carey, the decision-
maker in this case. (Fed.R.Evid.401.) Plaintiff asserts that
the cited factual contentions identifying those individuals
who interviewed or supervised him as well as those conten-
tions delineating the races of the previous Ward Superinten-
dents (including the subject 23rd Ward) have no bearing on
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App. 30
any issue in this case. (Pl.’s Mot. to Strike at 1-2.)
The Court disagrees with Plaintiff and finds that because
one of the prima facie issues in this case is whether Plaintiff
was performing his job according to the City’s legitimate
expectations, evidence concerning Plaintiff's Pesrormianes: is
clearly relevant, material and "of consequence" to the wend S
determination of the subject summary judgment motion. 4 The
Court also notes that even though Carey may not have been
aware of every incident involving Plaintiff's performance,
information concerning Plaintiff's poor performance was
communicated to her through Plaintiff's superiors and is
clearly "of consequence" the determination of whether he was
performing his job satisfactorily. Furthermore, the identity of
those individuals who interviewed or supervised Plaintiff as
well as a delineation of the races of the previous Ward
Superintendents is clearly relevant in a reverse race discrimi-
nation action.
Plaintiff contends that paragraphs 10-12 should be
stricken because they constitute expert opinion regarding the
job responsibilities of a Ward Superintendent and the City
has not complied with the expert disclosure requirements of
Rule 26(a)(2) of the Federal Rules of Civil Procedure. (Pl.’s
Mot. to Strike at 3; Fed.R.Civ.P. 26(a)(2).) The Court, how-
ever, finds that Plaintiff’s assertion is without merit, in that,
the Affidavit statement (which is the basis for paragraphs
10-12) made by Plaintiff's supervisor (Ryan) would be
viewed by the Court as lay testimony that is not subject to
the expert disclosure requirements of Rule 26(a)(2).
4. The Court strikes paragraph 21 of the City’s Statement of
Undisputed Material Facts because it is irrelevant to the
Court’s determination of the subject motion.
App. 31
Plaintiff asserts that paragraphs 37, 40-43, 49; 53, and
56-59 should be stricken because they are based on self-
serving and conclusory assertions contained in affidavits.
(Pl.’s Motion to Strike at 3-4.) The Court, however, finds
that the above-cited paragraphs should not be stricken
because the subject affidavits comply with Rule 56(e) of the
Federal Rules of Civi! Procedure, in that, they are based on
the personal knowledge (of a witness competent to testify)
and set forth admissible facts. (Fed.R.Civ.P.56(e).)
Specifically, the affidavits signed by Eileen Carey, Thomas
Ryan, Alfred Sanchez, William Bresnahan, and Catharine
Mullen Hennessey, which the subject paragraphs are based
on, demonstrate compliance with the federal rule. The Court
also notes that some of the above-cited paragraphs referenced
by the Plaintiff do not cite to any affidavits (i.e., paragraphs
40-43, 56 and 59); rather, they are based on deposition tes-
timony.
Plaintiff next asserts that paragraphs 10-12, 37, 38, 40-43,
49, 53-60, and 61 should be stricken because they are based
on inadmissible evidence. (Pl.’s Mot. to Strike at 4.) As
determined by the Court supra, paragraphs 37, 40-43, 49, 53,
and 56-59 are based on affidavit and/or deposition testimony
which complies with Rule 56(e); consequently, the factual
contentions constitute admissible evidence.
(Fed.R.Civ.P.56(e).) Furthermore, paragraphs 10-12, 38, 60,
and 61 contain relevant factual contentions based on admissi-
ble affidavit and/or deposition testimony; therefore, the Court
will not strike them.
Plaintiff further asserts that paragraphs 38, 54, 55, and
60-62 should be stricken because they contain inadmissible
hearsay since they describe conversations between various
City employees concerning Plaintiff's performance. (Pl.’s
Mot. to Strike at 4.) The Court disagrees. The Court finds
that these statements are not being offered for the truth of the
matter asserted and are not inadmissible. See e.g., Brill v.
Lante Corp., 119 F.3d 1266, 1271 (7th Cir. 1997) (holding
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App. 32
that out-of-court statements concerning an employee’s perfor-
mance problems did not constitute inadmissible hearsay
because they went to the issue of the employer’s honest
belief concerning such problems.)
ll. RACE DISCRIMINATION CLAIM
Title VII of the Civil Rights Act of 1964 makes it unlaw-
ful for an employer "to fail or refuse to hire or to discharge
any individual, or otherwise discriminate against any indivi-
dual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race
..." 42 U.S.C. s 2000e-2(a)(1). In order to prove a case of
race discrimination under Title VII, Plaintiff must offer direct
evidence of discrimination or, if he is unable to do so, he
may use the indirect, burden-shifting approach set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05,
93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). Because Plaintiff
has not offered any direct evidence of discrimination, his
case is governed by the McDonnell Douglas indirect,
burden-shifting approach.
Under the McDonnell Douglas burden-shifting frame-
work, Plaintiff must first establish a prima facie case of
reverse race discrimination. Ferguson v. Robert R. McCor-
mick-,Tribune Found., 108 F.Supp. 2d 1033, 1038 (N.D.II.
2000) ("... plaintiff has the initial burden of establishing a
prima facie case of reverse discrimination"); Paulos-Johnson
y. Advocate Trinity Hosp., No. 01 C 3639, 2002 WL 230908,
at *5 (N.D.Ill. Feb. 15, 2002). In order to establish a prima
facie case of reverse race discrimination using the McDonnell
5. Plaintiff concedes that he has no direct evidence of race
discrimination and that he must proceed via the indirect
McDonnell Douglas burden shifting-method.
App. 33
Douglas framework, Plaintiff must show that: (1) back-
ground circumstances exist which support an inference that
the City is one of those unusual employers who discriminates
against the majority; (2) he was meeting the City’s legitimate
performance expectations (i.e., he was performing his job
satisfactorily); (3) he was subjected to an adverse empioy-
ment action; and (4) the City treated similarly situated
employees outside the protected class more favorably. Mills
v. Health Care Serv. Corp., 171 F.3d 450, 455-57 (7th Cir.
1999); Ferguson, 108 F.Supp. 2d at 1038; Paulos-Johnson,
2002 WL 230908, at *5-6.
If Plaintiff establishes a prima facie case, the burden of
production shifts to the City to produce a legitimate, non-
discriminatory reason for its adverse employment action.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
254, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981); Vakharia v.
Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999).
The City must produce "evidence which, taken as true, would
permit the conclusion that there was a nondiscriminatory rea-
son for the adverse action." St. Mary’s Honor Center vy.
Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed. 2d 407
(1993) (emphasis in original). If the City sets forth a legiti-
mate justification for its action, the burden then shifts back to
Plaintiff to prove that the City’s reason is a pretext for
discrimination. Texas Dep’t of Community Affairs, 450 U.S.
at 255-56, 101 S.Ct. 1089, 67 L.Ed. 2d 207; Vakharia, 190
F.3d at 806-07. The ultimate burden of persuasion remains
at all times with Plaintiff. St. Mary’s Honor Center, 509
U.S. at 507, 113 S.Ct. 2742, 125 L.Ed. 2d 407. For the rea-
sons stated below, Plaintiff has failed to establish a prima
facie case of reverse race discrimination under Title VII
because he has not met the first, second and fourth elements
recited above. In any event, Plaintiff has also not shown
pretext herein. Therefore, Plaintiff’s reverse race discrimina-
tion claim is unavailing.
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A. Background Circumstances
Plaintiff initially argues that he was treated differently
because of his race (Caucasian), such that, the City would
not have discharged a similarly situated African-American or
Hispanic Ward Superintendent. (Pl.’s Mem. at 3.) Moreover,
Plaintiff contends that the City has attempted to cover up the
real reason for why he was terminated. (Id. at 1.)
In order to establish a prima facie case of reverse
discrimination, the Seventh Circuit has ruled that Caucasian
plaintiffs must establish background circumstances
"support[ing] an inference that the defendant is one of those
unusual employers who discriminates against the majority."
Mills, 171 F.3d at 455 (citation omitted); see also Ferguson,
108 F.Supp. 2d at 1038; Paulos-Johnson, 2002 WL 230908,
at *5-6.© Such background circumstances include evidence
6. Plaintiff contends that the Seventh Circuit in Hunt v. City
of Markham, 219 F.3d 649 (7th Cir. 2000) rejected the
Mills formulation of the prima facie requirements in
reverse discrimination cases. (Pl.’s Mem. at 4-5.) The
Seventh Circuit, however, did no such thing. Rather,
Hunt involved a situation where the plaintiffs presented
direct evidence of discrimination in the form of racist
comments by City officials. Id. at 652-53. As a result,
there was no need for the Seventh Circuit to address the
prima facie elements that must be established where the
plaintiff has no direct evidence of discrimination. Plaintiff
also contends that even though he is Caucasian, the Court
should not view this case as a reverse discrimination case
because it does not arise out of efforts to redress
discrimination through affirmative action. (Pl.’s Mem. at
3-4.) In Hunt, however, the Seventh Circuit recognized
that race discrimination claims by Caucasian plaintiffs
constitute “reverse race discrimination" claims, even if
such claims do not "arise out of efforts to redress historic
App. 35
that the employer has, some reason or inclination to discrim-
inate against the majority (i.e., Caucasians), or evidence that
there is something "fishy" (or strange) about the facts of the
case. Mills, 171 F.3d at 455 (citations omitted); Ferguson,
108 F.Supp. 2d at 1038. Moreover, in Mills, the Seventh
Circuit noted that "if a plaintiff cannot show background cir-
cumstances, but "has established a logical reason to believe
that the [employer’s] decision rests on a legally forbidden
ground,’ such as his race ... he may shift the burden to the
defendant to prove that the challenged employment action
was actually based on legitimate, non- discriminatory rea-
sons." Id. at 457 (citation omitted).
Plaintiff has failed to establish the first element (back-
ground circumstances) of his prima facie case of reverse
discrimination, as there is nothing in the record to indicate
that Plaintiff's employer had any reason or inclination to
discriminate against Caucasians, the facts of the case are
strange, or the City’s decision rests on a legally forbidden
ground.’ In fact, the record evidence favors the City on this
injustices or mitigate racial tensions ..." Hunt, 219 F.3d at
651.
7. Herein, Plaintiff contends that the recent "adjudication of
discrimination by [the City of Chicago] against white
firefighters" (Pl.’s Mem. at 5 n. 3) in Cloud v. City of
Chicago, No. 88 CV 3773, 2002 WL 1160930 (N.D.III.
May 31, 2002) constitutes evidence of background
circumstances. The Court, however, notes that Cloud
involved an entirely different department of the City of
Chicago (the fire department), different decision-makers, a
different type of discrimination (failure-to- promote), and
a different period of time (including actions dating back
to the late 1980’s and early 1990s).
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App. 36
first element. For example, the facts in the case show that:
(1) the majority of Ward Superintendents employed by the
City between January 1, 1995 and December 31, 1997 were
Caucasian:® (2) the 23rd Ward never employed a non- Cauca-
sian Ward Superintendent; (3) Plaintiff was replaced on both
a temporary and permanent basis by Caucasian Ward Super-
intendents; (4) all but one of the individuals even tangentially
involved in Plaintiff's termination are Caucasian; and (5)
Plaintiff was hired and fired by the same (Caucasian)
decision-maker (Carey). (Def.’s LR56. 1(a)(3) St. paras. 13-
15, 18-20, 31, 52, 57, 59.) The Court, therefore, finds that
Plaintiff cannot establish the first element of his prima facie
case.
B. Performance Expectations
Plaintiff asserts that he was performing his job adequately
as Ward Superintendent from November 1, 1995 to October
16, 1997, the time during which he was employed by the
City. (Pl.’s Mem. at 5.) During this period, Plaintiff con-
tends he did not receive written criticisms ("write-ups") and
was awarded merit raises based on two annual performance
appraisals. (Id.) In addition, Michael Zalewski, the alder-
man for the 23rd Ward, wrote a letter on January 17, 1997 to
Carey praising Plaintiff's job performance as Ward Superin-
tendent. (Id. at 5-6.) Based on this letter, Plaintiff asserts
that Alderman Zalewski agreed that Plaintiff was working
8. The Ward Superintendents employed by the City between
January 1, 1995 and December 31, 1997 were comprised
of the following races: thirty- eight were Caucasian;
twenty-three were African-American; fifteen were
Hispanic; and one was Asian. (Def.’s LR56. 1(a)(3) St.
par. 13.)
App. 37
hard as a Ward Superintendent and confirmed that he was
doing a good job for the Ward. (Id. at 6.) Moreover. Plain-
tiff believes that Alderman Zalewski’s views are entitled to
greater weight because he worked for the Department of
Streets and Sanitation for eighteen years before he became an
alderman. (Id.)
In point of fact, however, Plaintiff has failed to establish
the second element (that he was meeting the City’s legitimate
performance expectations) of his prima facie case because
there is no evidence in the record to contradict or refute the
City’s contentions that he was not performing his job satis-
factorily.? Plaintiff's contention that he was meeting the
9. Plaintiff failed to submit the required Northern District of
Illinois Local Rule 56. 1(b)(3)(A) response (which should
include specific references to affidavits, parts of the
record, and other supporting material relied upon) to
Defendant’s Statement of Undisputed Facts. Moreover,
Plaintiff failed to prepare the required Local Rule 56.
1(b)(3)(B) statement, consisting of short numbered
paragraphs, of any additional facts that require the denial
of summary judgment, including references to the
affidavits, parts of the record, and other supporting
materials relied upon. Rather, the statements prepared by
Plaintiff, respectfully, consist principally of references to
unauthenticated exhibits, non-specific or inappropriate
deposition pages, and unsupported conclusions.
Furthermore, Plaintiff objects to many of the City’s
undisputed facts as being "not material to this case" and
state that they are "not supported by admissible evidence
and are the subject of [P]laintiff’s motion to strike."
The Court further notes that the Seventh Circuit has
emphasized that, "[D]istrict courts are not obliged in our
adversary system to scour the record looking for factual
disputes ...". Waldridge v. Am. Hoechst Corp., 24 F.3d
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App. 38
City’s legitimate performance expectations because he had
not received any written criticisms of his performance is una-
vailing because there is no record evidence to suggest that
the Department of Streets and Sanitation had a "policy"
requiring that written criticisms or "write-ups" be placed in
an employee’s personnel file, or that an employee be
informed (in writing or otherwise) that his performance was
not satisfactory.!° Moreover, Plaintiff's claim that he was
never told that he was performing below the City’s expecta-
tions disregards evidence in the record indicating that
Plaintiff's superiors discussed his performance deficiencies
amongst themselves and Ryan, his immediate supervisor, dis-
cussed Plaintiffs performance shortcomings with him.
(Def.’s LR56. 1(a)(3) St. pp 23-25, 27-35, 37-42.)
Based on the record evidence, Ryan had a number of
problems with Plaintiff's performance while he was a Ward
Superintendent which Ryan reported to his superiors; namely,
Picardi, Sanchez and Carey. (Def.’s LR56. 1(a)(3) St. paras.
23, 24.) For example, Plaintiff was not able to respond
immediately to telephone requests from Ryan regarding the
"Vitals" of the Ward (Plaintiff would have to call Ryan back
918, 922 (7th Cir. 1994). Consequently, the appropriate
remedy for Plaintiff's failure to comply with the Court’s
rules is for the City’s facts to be deemed admitted. See
id.
10. Plaintiff's reliance on seven unauthenticated documents
placed in the personnel files of three Ward
Superintendents by different decision- makers during the
1990’s criticizing various aspects of their performance is
insufficient to create such a policy. (See Exhibits attached
to Pl.’s Add’] Factual Propositions. )
App. 39
later with an answer); Plaintiff relied too heavily on the two
coordinators working under him; Plaintiff refused to use his
assigned City van during working hours; and Plaintiff could
not be readily located via a City-issued pager or radio. (Id.
paras. 25, 27, 29, 30, 32.) At one time, Ryan wrote Plaintiff
up for a three-day suspension for several of these problems;
including, his inability to locate Plaintiff and Plaintiff's
refusal to drive the City-issued van. (Id. par 34.)
Plaintiff's assertion that he was meeting the City’s perfor-
mance expectations because he received merit increases based
on his performance evaluations is unmeritorious. Plaintiff
received performance ratings of "Good," which rather than
confirming his performance was meeting expectations, merely
indicated "acceptable performance, improvement is possible"
and is the lowest rating an employee can receive and still
receive a merit increase. (Def.’s LR56. 1(a)(3) St. paras 44-
48.) Sanchez, the supervisor who was responsible for com-
pleting Plaintiff's performance evaluations, indicated that he
gave Plaintiff "Good" ratings only because he did not want to
penalize Plaintiff monetarily for performing poorly, and he
hoped Plaintiff's performance would improve. (Id. par. 49.)
Moreover, as the evidence shows, while Plaintiff was on
medical leave, when another Ward Superintendent (Cauca-
sian) performed his duties, the 23rd Ward ran more smoothly
and there was a noticeable improvement."! (Id. par. 52, 57.)
11. During the summer of 1997, while Plaintiff was on
medical leave, his duties were performed by foremen,
Horatio D’Oronzo (Caucasian) from June 1, 1997 through
June 30, 1997 and James Krystiniak (Caucasian) from
July 7, 1997 through October 1997. (Def.’s LR56. 1(a)(3)
St. par. 52, 57.) During the time period that Krystiniak
filled in for Plaintiff, sanitation services in the 23rd Ward
ran smoother. (Id. par. 53.) For example, Krystiniak was
more effective and efficient, could be easily located, and
displayed good management skills. (Id.) Sanchez and
App. 40
Plaintiff's next contention that Alderman Zalewski’s
January 17, 1997 letter to Carey constitutes evidence that he
was meeting the City’s performance expectations is without
merit. As is pertinent here, in his letter, Alderman Zalewski
commends Plaintiff's efforts in removing snow on one OCcCa-
sion. Initially, this letter is unauthenticated hearsay, which
must be stricken for the reasons set forth in footnote 9, supra.
In any event, the Court finds that Alderman Zalewski’s sub-
ject opinion of Plaintiff's performance is entirely irrelevant
because he was not a decision-maker with respect to
Plaintiff's employment; he was not involved in evaluating
Plaintiff's general and total performance, he was not
employed by the Department of Streets and Sanitation at the
time he wrote the January 17, 1997 letter; and he was not a
party to any discussions involving Plaintiff's performance.
(Def.’s Resp. to Pl.’s Add’] Factual Props. par. FII.02-03.)
In view of the foregoing, the Court finds that -Plaintiff
cannot establish the second element of his prima facie case,
because he has failed to present evidence that his job perfor-
mance met the City’s legitimate expectations. !
Picardi discussed the fact that Krystiniak was doing a
much better job in the 23rd Ward than Plaintiff had been
doing, and concluded that they would have fewer
problems if Krystiniak took over as Ward Superintendent.
(Id. par. 54.) Krystiniak worked as Ward Superintendent
after Plaintiff's discharge; however, Plaintiff was
permanently replaced by D’Oronzo. (Id. par. 52.)
12. The Court notes that Plaintiff has attempted to create an
issue of fact concerning his performance by suggesting
that he believed he was satisfactorily performing.
However, as the Seventh Circuit has stated, an employee’s
own assessment of his job performance is not sufficient to
overcome the employer’s good faith business judgment
regarding the employee’s performance. Fortier Vv.
a
App. 41
C. Similarly Situated Employees
Plaintiff argues that he was terminated from his position
as Ward Superintendent by the City because he was indicted
for mail fraud. (Pl.’s Mem. at 9.) Moreover, Plaintiff asserts
that the City would not have terminated a similarly situated
African-American or Hispanic Ward Superintendent who had
been charged with a criminal offense. (Id.) Plaintiff
specifically points to the treatment of one City employee,
John Robertson (African-American), ' whom he asserts was
Ameritech Mobile Communications, Inc., 161 F.3d 1106,
1114 (7th Cir. 1998). Moreover, it is not appropriate for
the Court to substitute its own judgment of Plaintiff's
performance for that of the City’s business judgment. See
Mills, 171 F.3d at 459 ("[This court does] not sit as a
‘super-personnel department’, with plenary authority to
review [an employer’s] business decisions").
13. Plaintiff originally argued that three other non-Caucasian
City employees; namely, Charles Fisher (African-
American, Ward Superintendent, and _ career-service
employee); Lashon Bennett (African-American, motor
truck driver in the City’s Fleet Management Department,
and career-service employee) and Timothy Robinson
(African-American, clerk in the City’s Revenue
Department, and career-service employee) who were
involved in similar situations were allowed to remain
employed, either on the job or on paid administrative
leave during the investigations of their matters. (Def.’s
LR56. 1(a)(3) St. par. 71-75.) In Plaintiff's responsive
brief, however, he now asserts that only Robertson is
similarly situated. (Pl.’s Mem. at 2, 11.)
In any event, Bennett, Robinson, Fisher and Robertson are
not similarly situated to Plaintiff. First, neither Bennett
nor Robinson were employed by the City as Ward
App. 42
charged with a crime, but was placed on administrative leave
pending the outcome of his indictment and given career
Superintendents, and Robinson never worked in the
Department of Streets and Sanitation. Rather, both
Bennett and Robinson worked in entirely different
positions. (Def.’s LR56. 1(a)(3) St. par. 73- 74.) For this
reason, Bennett and Robinson cannot be considered
similarly situated to Plaintiff. See Auston v. Schubnell,
116 F.3d 251, 254 (7th Cir. 1997) (declining to consider
individuals proffered by the plaintiff to be "similarly
situated" where the plaintiff provided no evidence that the
individuals were in the same department as plaintiff,
worked the same hours, or reported to the same
supervisor); Mora v. Chicago Tribune, 57 F.Supp. 2d 626,
635 (N.D.IIl. 1999) (holding that to be similarly situated,
a plaintiff must show that employees "(1) held the same
or similar employment positions; (2) had similar
employment histories; and (3) engaged in similar
misconduct giving rise to the employment action"). In
addition, unlike Plaintiff, the four individuals identified by
Plaintiff as similarly situated were career-service
employees and, as a result, they were entitled to certain
job protection procedures, whereas Plaintiff had no
expectation of job protection and was an employee-at-will.
(Id. par. 73-78.) Furthermore, William McTighe, a
Caucasian Ward Superintendent, was investigated by the
Inspector General’s Office but was not terminated. (Id.
par. 79.) Thus, Plaintiff's attempt to compare himself to
career- service employees fails as does his claim that the
City terminates Caucasian employees accused of
misconduct while retaining African-American employees
accused of misconduct.
App. 43
service protection (and was not terminated). (Id. at 11.)
Plaintiff, thus, claims that the City’s treatment of Robertson
constitutes evidence of its policy to retain African-American
or Hispanic Ward Superintendents who are charged with a
crime by placing them on leave pending resolution of the
matter and reinstating them if the resolution is favorable to
the employee. (Id.)
Plaintiff has failed to establish the fourth element of his
prima facie case because he has failed to identify even one
similarly situated individual that was treated more favorably
by the City. To establish this element, Plaintiff must point to
similarly situated non-Caucasian employees who engaged in
similar conduct (i.e., employees who demonstrated similar
deficiencies in their performance of the Ward Superintendent
position), but were neither disciplined nor terminated. See
e.g., Ferguson, 108 F.Supp. 2d at 1039. "Such a comparison
must ’demonstrate more than occasional leniency toward
other employees who had engaged in conduct of a similar
nature.’" Id. (citation omitted.)
Specifically, Plaintiff cannot compare himself to Robert-
son. First, Plaintiff has failed to establish any evidence sup-
porting his assertion that he was terminated because he was
indicted for mail fraud.'* In fact, even though Plaintiff was
not terminated until he returned to work from a leave of
absence in October 1997, the decision to terminate Plaintiff
was made by Carey during the summer of 1997, prior to
Plaintiff's September 30, 1997 indictment. (Def.’s LRS56.
14. While the City denies that it terminated Plaintiff because
of his indictment, it is significant to note that Title VII
does not protect individuals from being terminated simply
because they have been indicted. See 42 U.S.C. s 2000e et
seq.
a
App. 44
1(a)(3) St. par. 56-68.) The decision to terminate Plaintiff
was based on Sanchez’s and Carey’s realization that Krys-
tiniak (Plaintiff's replacement) was a more efficient and
effective Ward Superintendent than Plaintiff. (Id. par. 52-57.)
Since the decision to terminate Plaintiff was made prior to
his indictment, Plaintiff cannot be considered to be similarly
situated to Robertson who was indicted and subsequently
placed on administrative leave pending the outcome of his
indictment.
Next, Plaintiff's comparison to Robertson also fails
because Robertson, unlike Plaintiff, received career-service
status because he was employed by the City in a different
position prior to becoming a Ward Superintendent in 1986.
(Def.’s Resp. to Pl.’s Add’l Factual Props. pp FII.02-03.)
Consequently, Plaintiff who was not a career-service
employee was not entitled to the same job protection pro-
cedures as Robertson, and therefore is not similarly
situated.!> (Def.’s LR56. 1(a)(3) St. par. 77.)
15. The position of "Ward Superintendent" has been an
"exempt" or non-career service position since 1983 when
judgment was entered in Shakman v. Democratic Org. of
Cook County, 569 F.Supp. 177 \N.D.IIl. 1983). As noted,
Plaintiff argues that the Ci» afforded career-service
protection to Robertson, an Airican-American who was
hired as Ward Superintendent after the Shakman judgment
and was not terminated when he was accused of
wrongdoing. (Pl.’s Mem. at 2: Pl.’s LR56. 1(b)(3)(B) St.
pFI.01.) Robertson, however, was a career-service
employee by virtue of his prior positions with the City.
(Def.’s Resp. to Pl.’s Add’] Factual Props. par. FI.01;
Hennessy Aff.par. 4; Pl.’s Ex. 34.) As such, unlike
Robertson, Plaintiff was hired directly into the non
career-service position of Ward Superintendent.
App. 45
The Court, therefore, finds that Plaintiff cannot establish
the fourth element of his prima facie case because he has
failed to present evidence identifying any similarly situated
individuals (i.e., non-Caucas:an Ward Superintendents whose
performance was poor) who were treated more favorably than
he was by the City.
D. Pretext
Even assuming arguendo that Plaintiff has made the
requisite prima facie showing as to the issues of background
circumstances, performance expectations, and _ similarly
situated employees, Plaintiff would still need to demonstrate
that the City’s proffered reason for its employment decision
is a pretext for race discrimination. See e.g. Vakharia, 190
F.3d at 806-07. "Pretext ... means a lie, specifically a phony
reason for some action." Plair v. E.J. Brach & Sons, Inc.,
105 F.3d 343, 348 (7th Cir. 1997). Plaintiff need only "pro-
duce evidence from which a rational factfinder could infer
that [the City] lied about its proffered reasons Weisbrot v.
Med. College of Wis., 79 F.3d 677, 682 (7th Cir. 1996).!°
"The pretext inquiry focuses on the honesty-not the
accuracy-of the employer’s stated reason for the [adverse job
action].". Gibson v. AT & T Corp., No. 97 C 0501, 1998 WL
774687, at * 8 (N.D.Ill. Oct. 28, 1998) (citation omitted). In
addition, "[t]he fact that [an] employer was mistaken or
based its decision on bad policy, or even just plain stupidity,
16. An employee may establish pretext by proving one of the
following: "(1) the proffered reasons are factually
baseless; (2) the proffered reasons were not the actual
motivation for the [adverse action]; or (3) the proffered
reasons were insufficient to motivate the [adverse action]."
Wolf v. Buss, Inc., 77 F.3d 914, 919 (7th Cir. 1996).
App. 46
goes nowhere as evidence that the proffered explanation is
pretextual." Essex v. United Parcel Serv., Inc., 111 F.3d
1304, 1310 (7th Cir. 1997).
Plaintiff argues that the City’s purported reason (i.e., poor
performance) for terminating him is pretextual and fails for
several reasons. (PI.’s Mem. at 7.) First, Plaintiff contends
that the City could not honestly have believed that his perfor-
mance warranted termiiation because his personnel file did
not contain any written evidence of performance problems;
he was never disciplined for failing to clean his ward; he
received merit increases; and Alderman Zalewski wrote a
letter praising him for his cleanup efforts during a snow
storm in the winter of 1997. (Id. at 10-11.) ‘The Court, how-
ever, finds that Plaintiff's assertions that his performance was
not deficient fails for the reasons discussed supra in this
opinion.’
17. For instance: (1) Plaintiff has not offered any admissible
evidence to contradict the performance deficiencies
described in the record by the City; (2) the City has no
policy requiring written or verbal criticism of poor
performance; (3) Plaintiff cannot dispute the fact that his
superiors discussed his performance problems amongst
themselves; (4) Plaintiffs performance ratings of "Good"
(which resulted in merit increases) indicated that
"improvement is possible" and were given by Sanchez
solely in an effort to avoid monetary penalties for
Plaintiff's poor performance; (5) the 23rd Ward ran more
smoothly when Plaintiff was replaced (by a Caucasian
employee--Krystiniak) while he was on leave; (6)
Zalewski’s opinion of Plaintiff's performance is irrelevant
because he was not a decision-maker in this case; and (’)
Plaintiff's own view of his performance is insufficient to
create a question of fact.
App. 47
Next, Plaintiff contends that the City could not have
honestly believed that his poor performance warranted termi-
nation because the testimony of the decision-maker in this
case, Carey, could not recall specific dates of conversations
and she could not recall her involvement with the processing
of certain paperwork involving his leave of absence and ter-
mination; consequently, Carey’s inability to recall establishes
pretext. (Pl.’s Mem. at 7-9.) On this point, however, the
City asserts that Plaintiff grossly overstate’s Carey’s lack of
recollection with respect to certain details, but more impor-
tantly, Plaintiff's attorney failed to ask the appropriate depo-
sition questions of Carey and failed to adequately follow-up
on questions which ultimately led to certain unanswered
questions remaining after her deposition. (Def.’s Mem. at
11.) The City, thus, contends that Carey’s affidavit is not an
effort to "patch up her poor deposition performance" as
Plaintiff contends (Pl.’s Mem. at 3); rather, it was necessi-
tated by Plaintiff's attorney’s decision not to pursue various
lines of inquiry. (Id.)
Respectfully, the Court finds the City is correct. For
example, although Plaintiff asserts that "Carey was ... unable
to explain at her deposition why Plaintiff had been fired
effective October 23, 1997" (Pl.’s Mem. at 7), she testified as
follows:
Q. [By Plaintiff's attorney] Do you know why the date of
October 23, 1997 was chosen?
A. [By Carey] I think--I think there were always seven
days given in a termination. (Carey Dep. at 36; See
Def.’s Resp. to Pl.’s Add’! Factual Props. par. FIV.02.)
Moreover, even though Carey could not recall the specific
reasons for Plaintiff’s termination, she testified that she made
the decision "because the people supervising him, [said] he
was not performing, ..., what we considered, ... the duties of
the Ward Superintendent." (Carey Dep. at 10.) Carey further
testified: |
App. 48
Q. [By Plaintiff's attorney] Well, did anything happen in
October to cause you to fire [Plaintiff]?
A. For the fact of not performing his job.
Q. Well, are you telling us that your understanding is that
[Plaintiff], in October of 1997, was not doing a good job
as ward superintendent?
A. I think it is safe to say that for a long time [Plaintiff]
was not performing his duties as ward superintendent as I
expected him to do. (Carey Dep. at 30-31; See Def.’s
Resp. to Pl.’s Add’1 Factual Props. par. FIV.02.)
Plaintiff also claims that Carey’s testimony lacks reliabil-
ity because she did not mention during her deposition that
Sanchez told her that Plaintiff was not driving the City van
during working hours (PI.’s Mem. at 8.) While the Court
notes that Carey did testify that one of the areas that
Plaintiff's performance was not measuring up was "garbage
pickup," Plaintiff's attorney did not follow-up by asking
Carey if she could recall if there were any other performance
deficiencies, nor was Carey asked to exhaust her recollection
on that subject. (Carey Dep. at 22-24; see Def.’s Resp. to
Pl.’s Add’! Factual Props. par. FIV.02.) Therefore, -the Court
finds Plaintiff’s argument to be unavailing.
Plaintiff further asserts that Carey could not remember
any of the specific job performance concerns she had regard-
ing Plaintiff during the months of June 1997 through Sep-
tember 1997 that caused Carey to terminate him on October
16, 1997. (Pl.’s Mem. at 7-8.)
The Court, however, notes that Plaintiff was not working
during this entire period because he was on medical leave.
(Def.’s LR56. 1(a)(3) St. par. 50.) Moreover, the Court notes
that Carey was the Commissioner of the entire Department of
Streets and Sanitation at the time, and the events at issue
occurred more than four and one-half years before her depo-
sition was taken. (See Def.’s Resp. to Pl.’s Add’l Factual
Nee
App. 49
Props. par. FIV.03.)
Plaintiff contends that Carey’s affidavit statement that she
had decided, during the summer of 1997, to terminate Plain-
tiff was contradicted by Sanchez’s deposition testimony.
(Pl.’s Mem. at 8-9.) To the contrary, Sanchez testified that,
while Plaintiff was on leave during the summer of 1997,
Plaintiff's replacement, Krystiniak (Caucasian), did a much
better job of running the Ward. (Def.’s LR56. 1(a)(3) St.
par. 52-54.) Sanchez testified that he discussed the situation
with Carey as well as the fact that they were disappointed
with Plaintiff's performance. (Id. par. 55.) Furthermore,
Carey and Sanchez also reached the conclusion, during the
summer, that it was time for a change. (Id. par. 56.) The
Court, therefore, finds that Sanchez’s testimony is consistent
with Carey’s affidavit testimony that she made the decision
to terminate Plaintiff's employment during the summer of
1997 and that Plaintiff was not terminated at the time
because Carey was under the erroneous impression that such
employment actions could not be taken while an employee
was on leave. (Id. par. 57-58.)
Finally, Plaintiff asserts that he was terminated because
he is a Caucasian employee who had been indicted. (PIl.’s
Mem. at 6-7, 9-11.) Plaintiff contends that immediately after
he was indicted, "City personnel requested that [he] resign
from his position as Ward Superintendent." (Id. at 6.)
Moreover, Plaintiff further asserts that he refused to resign
and retained an attorney who wrote a letter (Pl.’s Resp. to
Def.’s LR56. 1(a)(3) St., Ex. 3), on his behalf to Carey,
requesting that his employment be protected while the crimi-
nal matter was pending. (Id.)
The Court finds Plaintiff's assertion that he was asked to
resign after he was indicted also to be unavailing. First,
Plaintiff has failed to produce and/or refer to the subject
letter in any of his discovery responses or at his deposition.
Second, the subject letter of Plaintiff's attorney is
App. 50
contradicted by the testimony of Alderman Zalewski, the
individual who supposedly asked him for his resignation after
he was indicted. The subject letter of Plaintiff's attorney
states that Plaintiff has "been advised by Alderman Zalewski
that his resignation is requested because of a federal indict-
ment returned last week that relates to [Plaintiffs] private
security business." (Pl.’s Ex. 3, Oct. 15, 1997 Ltr. to Carey
from Plaintiff's attorney). At his deposition, however,
Zalewski testified as follows:
Q: [By Plaintiff's attorney]: Do you have any reason to
believe that [Plaintiff] was terminated because he had been
indicted?
A. [By Alderman Zalewski]: To be very honest, I don’t
know why he was terminated. I mean, I was never told
why he was terminated. It wasn’t my position to be told
why he was terminated, so no, it had nothing--as far as I
am concerned, you know, with his indictment--I don’t
know why he was terminated.
(Zalewski Dep. at 26.) Consequently, the subject letter
Plaintiff references, which incidentally is inadmissible hear-
say, does not, in reality, constitute evidence that Plaintiff's
indictment played any part in his termination.'®
18. Plaintiff also claims that Carey's affidavit creates
admissible evidence by way of a "negative pregnant."
(Pl.’s Mem. at 11.) The Court, however, finds that the
only thing Carey’s affidavit establishes is that she never
discussed Plaintiff's indictment with anyone in terms of
the decision to terminate him. The fact that the City and
Carey carefully state the facts does not create an inference
that Plaintiff's indictment played any role in his
termination. Moreover, Plaintiff did not pursue this issue
at Carey’s deposition.
———————————
App. 51
Finally, relative to the pretext for race discrimination
issue, Plaintiff has presented no evidence to contradict the
"common actor" presumption of non-discrimination _ that
applies to this case. Under Seventh Circuit case law, "
when an employee is hired and fired by the same decision-
maker in a relatively short time span, a presumption, or infer-
ence, of nondiscrimination arises." Chiaramonte v. Fashion
Bed Group, Inc., 129 F.3d 391, 399 (7th Cir. 1997). Herein,
the decision to hire Plaintiff was made by Carey in
December of 1995. (Def.’s LRS6. 1(a)(3) St. par. 15, 18.)
Less than two years later, Carey was the ultimate decision-
maker regarding Plaintiff's termination. (Id. par. 57, 59.)
Additionally, the Court notes that all but one of the individu-
als even tangentially involved in Plaintiff's termination are
Caucasian (the sole exception was Sanchez who is Hispanic),
an indication which further points to the fact that Plaintiff's
discrimination claim is baseless. (Id. par. 15, 16, 19-20, 31.)
Therefore, the Court finds that Plaintiff has presented no evi-
dence to overcome the common actor presumption.
The Court finds that the City has produced a legitimate,
nondiscriminatory reason for terminating Plaintiff; namely,
his poor performance and Plaintiff has failed to adduce any
evidence demonstrating that the City’s proffered reason is a
lie or pretext for discriminating against him based on his
race.
CONCLUSION’?
Based on the foregoing, when viewing the evidence in the
19.In view of the Court’s ruling herein, it is deemed
unnecessary to consider Plaintiff's and Defendant’s other
arguments raised herein.
Too, Plaintiff refers to his FMLA claim in his response
memorandum. However, that cause having been
previously dismissed by the Court, and a motion to
eee
App. 52
light most favorable to Plaintiff, a genuine issue of material
fact does not exist and a fair-minded jury could not return a
verdict for him on the evidence presented as it relates to his
reverse race discrimination claim.
Accordingly”? the City’s motion for summary judgment iS
granted and the cause is dismissed with prejudice.
reconsider that ruling having been denied, it is not
necessary to address that claim further here.
50. Plaintiff's Motion to Strike is denied, except as [to
paragraph 21 of the City’s statement.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.