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GBUR v. CITY OF HARVEY, ILLINOIS
835 F.Supp.2d 600 (2011)
Alex GBUR, Plaintiff,
v.
CITY OF HARVEY, ILLINOIS, an Illinois municipal corporation, Eric Kellogg, individually and in his official capacity as mayor, Andrew Joshua, individually and in his official capacity as chief of police, Defendants.
No. 07 C 1923.
United States District Court, N.D. Illinois, Eastern Division.
December 19, 2011.
Opinion Granting in Part and Denying in Part Reconsidertaion March 9, 2012.
MEMORANDUM OPINION AND ORDERJEFFREY COLE, United States Magistrate Judge. Alex Gbur, a white male, was a policeman for the south suburban City of Harvey, beginning in 2001. In April 2003, Harvey elected an African-American mayor — the previous mayor had been white — and Mr. Gbur feels it was no coincidence that his career took a turn for the worse around that time. He was disciplined on a number of occasions, and his employment
was finally terminated on March 21, 2007. He filed this lawsuit against the City of Harvey, Mayor Eric Kellogg, and the police chief, Andrew Joshua, who is also African-American and was appointed to his position by the mayor shortly after the election. Under Count I of his second amended complaint, Mr. Gbur charges the defendants with "race discrimination in violation of Title VII." Mr. Gbur alleges that he was suspended without pay and subsequently discharged because he is white, while similarly situated African-American officers were treated more favorably when they committed similar or more severe misconduct. (Second Amended Complaint, ¶¶ 13-21). Mr. Gbur also claims the defendants: terminated white officers from their employment; rehired African-American police officers who had been discharged or resigned in lieu of discharge for disciplinary reasons; demoted white officers and promoted less qualified African-American officers in their place; disciplined white officers more harshly than African-American officers; and permitted a hostile work environment that subjected white officers to racial epithets and unsafe work assignments. (Second Amended Complaint, ¶ 21).1 Mr. Gbur charges that defendants with "First Amendment violations pursuant to 42 U.S.C. § 1983." He says that when he filed a charge of discrimination with the Equal Employment Opportunity Commission in March 2006, he was treated differently and suffered adverse job actions. (Second Amended Complaint, ¶¶ 28-29). He also claims that when he testified regarding his experiences during a Department of Justice investigation into charges of discrimination in Harvey's police department, he suffered retaliation in the form of threats of termination, denial of vacation days, provision of unsafe equipment, and unsafe work assignments. (Second Amended Complaint, ¶¶ 30-33). Mr. Gbur adds that, after he supported a rival candidate for mayor against defendant Eric Kellogg, the incumbent, he suffered retaliation, including: threats of termination, denial of vacation days, provision of unsafe equipment, and unsafe work assignments, termination, and not being invited to union meetings with the mayor. (Second Amended Complaint, ¶¶ 34-35). He also claims to have been shot at in an attempted homicide by a relative of Mayor Kellogg, who was later apprehended by the Illinois State Police. (Second Amended Complaint, ¶¶ 36-38). Mr. Gbur states that the mayor and the chief of police are policymakers for the City of Harvey, and that it is a custom and practice of the city to retaliate against those who publicly express opposition to the city regarding matters of public concern.
1. Mr. Gbur does not suggest he is bringing a class action on behalf of these other white officers, so these additional claims that do not personally involve him must be provided to support his hostile work environment claim, to give context or provide a backdrop to his own charges of racial discrimination or to show intent under Rule 404(b), Federal Rules of Evidence.
2. Mr. Gbur makes no mention that he was denied a promotion on any basis — race or retaliation — in his second amended complaint. He also does not assert that he was denied a promotion in his Local Rule 56.1 submissions — in fact, he states that Chief Joshua promoted him and gave him favorable positions. (Pl.St., ¶ 16). Moreover, he does not advance any argument regarding a lost promotion in his brief.
3. The defendants properly object to this statement as inadmissible hearsay. But the record also contains the testimony of Mr. Fries and Mr. Harris as to what the mayor told them at the meeting, and that is not hearsay. Fed. R.Evid. 803(3).
4. Mr. Gbur submitted an affidavit in which he maintained that, aside from him, it was never publicized or discussed whether individuals worked against Mayor Kellogg in the election. (Pl.Rsp., ¶ 38; Ex. 3). But Mr. Gbur would not know what was discussed outside his presence, and thus is testimonially incompetent to make the statement he did in his affidavit insofar as it related to such discussions. See Rule 602, Federal Rules of Evidence. Fed.R.Civ.P. 56(e)(1) requires that affidavits opposing summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." See also Rule 602, Federal Rules of Evidence; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Compania Administradora de Recuperacion de Activos Administradora de Fondos de Inversion Sociedad Anonima v. Titan Intern., Inc., 533 F.3d 555, 562 (7th Cir.2008)
5. The name of the proceeding is taken from Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), which dealt with due process requirements in the event of a termination of a tenured, public employee. The Court stated that "[t]he essential requirements of due process ... are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.... The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." 470 U.S. at 546, 105 S.Ct. 1487.
6. The defendants refer to a "Police Commission Hearing" in their statement of facts, but there was apparently no such hearing. The hearing the defendants draw their factual assertions from was clearly identified as the Civil Service Commission Hearing. (Notice of Discharge, at 1).
7. Mr. Gbur takes issue with these facts, calling them "legal arguments" and improper for inclusion in a Local Rule 56.1 statement. (Pl.Rsp., ¶ 51). But he doesn't expound on his contention or explain how the reference that accurately describes the decisions as upholding his termination under Illinois' Administrative Review Law constitute a "legal argument."
8. Under 28 U.S.C. § 1746, if a person's unsworn declaration is used in a summary judgment proceeding, it must be "subscribed by him, as true under penalty of perjury, and dated...." See Owens v. Hinsley, 635 F.3d 950, 954-55 (7th Cir.2011). Here, the interviewer related the statement of the declarant in writing, and the subscription reads, "I attest that the above information given in this interview is true and correct."
9. The exception to the Congressional mandate that district courts only have original jurisdiction is that federal district courts may review habeas corpus claims brought by state prisoners. 28 U.S.C. § 2254.
10. Judge Hamilton, while a district judge presciently said this about Manley: "That reasoning in Manley certainly seems to apply here, but it also seems to run contrary to the decisions drawing a distinction between the Rooker-Feldman doctrine and res judicata. The Manley opinion did not directly address that distinction, however, and this court respectfully suggests that res judicata and/or issue preclusion might have been more directly applicable there. In view of the Seventh Circuit's repeated and explicit attempts to maintain the distinction, this court follows the teaching of Garry, Homola, and GASH Associates, and denies defendants' motion to dismiss for lack of subject matter jurisdiction." Network Towers, LLC v. Town of Hagerstown, 2002 WL 1364156, *5 (S.D.Ind.2002).
11. Moreover, the "prevent[ion]" argument belongs in a brief, not in a conclusory assertion in a statement of facts. It ought to have been developed and supported by citations to relevant case authority. Undeveloped and unsupported arguments are deemed waived. MMG Financial Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 659 (7th Cir.2011); Long-Gang Lin v. Holder, 630 F.3d 536, 543 (7th Cir.2010).
12. The allegation in Count I that the individual defendants rehired African-American police officers because of their race would not appear to be a stand alone claim for relief, but simply a specification of the various ways in which Mayor Kellogg and Chief Joshua allegedly "discriminate[d] against white officers." (Second Amended Complaint, ¶ 21(b)). Mr. Gbur's second amended complaint mentions that this was a practice, but does not connect it to anything that happened to him. That is, Mr. Gbur does not allege that he was not rehired because he was white even though African-American officers were rehired. In other words, it is not alleged that Mr. Gbur was discriminated against because he was not rehired. Of course, the fact that the practice may not be charged as a claim does not mean that it does not have evidentiary value. It clearly does. See Rule 404(b), Federal Rules of Evidence.
13. The defendants mistakenly argue that this is a jurisdictional requirement. (Defendants' Memorandum, at 2). It is not, see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Salas v. Wisconsin Dept. of Corrections, 493 F.3d 913, 921 (7th Cir.2007); Teal v. Potter, 559 F.3d 687, 691 (7th Cir.2009); Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994), and the cases on which the defendants rely are quite outdated.
14. The choice/difference between the direct method and indirect or burden-shifting method seems to be a source of confusion. Atanus v. Perry, 520 F.3d 662, 672 (7th Cir.2008). The direct method does not require direct evidence, but allows for a plaintiff to demonstrates that he "was a member of a protected class and as a result suffered the adverse employment action of which he complains." Atanus v. Perry, 520 F.3d 662, 672 (7th Cir. 2008) (quotations omitted, emphasis original). The court has explained that circumstantial evidence demonstrating intentional discrimination includes:
"(1) suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group; (2) evidence, whether or not rigorously statistical, that similarly situated employees outside the protected class received systematically better treatment; and (3) evidence that the employee was qualified for the job in question but was passed over in favor of a person outside the protected class and the employer's reason is a pretext for discrimination."
Id., at 672. See also Silverman v. Board of Education. In other words, at least in the case of examples (2) and (3), the same type of evidence as would be part of a burden-shifting case. But as Mr. Gbur does not bring up the direct method in his response to the defendants' motion for summary judgment, these aspects of the case law need not be addressed.
15. The defendants also assert that Mr. Gbur was cited for productivity problems on two occasions, but fail to indicate when these occurred. (Def.St., ¶ 33).
16. Mr. Gbur has not properly authenticated several of the documents he relies upon, including the police manual and the CBA. Thus, even if they supported his factual assertions, they would not be admissible as evidence in this summary judgment proceeding. Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir.2006); Scott v. Edinburg, 346 F.3d 752, 760 n. 7 (7th Cir.2003); Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2001).
17. Mr. Gbur advances two comparators — Mr. Escalante and Mr. Jones — that he did not mention in his interrogatory responses, so the defendants were unable to address their circumstances in their opening brief. Mr. Gbur's own evidence shows that Mr. Escalante was a detective and a sergeant during at the time of his discipline, which puts him in the category with Mr. Hartwell and Mr. Dorough. Mr. Jones was a patrol officer who, among other things, damaged a squad car by driving over a pothole and a piece of concrete. (Pl.St., ¶ 27; Ex. 18, at 1441). He didn't report the incident when he returned to the station. He explained that he was attempting to drive closer to two suspects he observed. His sergeant found this explanation "unacceptable" because he was required to operate his vehicle in a safe manner and cited him for failing to report an accident immediately. (Pl.St., ¶ 27; Ex. 18, at 1441). Unlike Mr. Gbur, Mr. Jones did not lie about what happened, or change his story about what happened later on. And the lying was the significant factor in Mr. Gbur's termination. See supra, at 628-29. So Mr. Jones is not similarly situated because his infraction was different. See Antonetti v. Abbott Laboratories, 563 F.3d 587 (7th Cir.2009) (employees who admitted lying about an event are not comparable to those who did not and who received harsher discipline).
18. The defendants contend that those parts of Counts I and II that allege that the investigation, suspension, and termination of Mr. Gbur was discriminatory or retaliatory are barred by the doctrine of res judicata. (Defs. Motion to Dismiss at ¶ 3).
19. The court also mused that the burden-shifting method may not be suited to these cases in the wake of Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Kodish, 604 F.3d at 501.
20. The defendants argue that a fair portion of Mr. Gbur's affidavit is made up of conclusory assertions that he was discriminated against or retaliated against, and that some of his statements are inadmissible hearsay.
1. It should also be noted that the plaintiff's memorandum opposing summary judgment and his Local Rule 56.1 submission failed to support such a contention. (Dkt. # 95, at 620-21). Although that failure was pointed out in the Memorandum Opinion and Order, that failure persists in what seems largely to be an impermissible reiteration of what came before. Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.2000).
2. Plaintiff also contends that Launius represents a change in Illinois law since the Seventh Circuit decided Pirela. Yet, in discussing similarity between comparators, Launius relied upon two Illinois case decided before Pirela. 151 Ill.2d at 442, 177 Ill.Dec. 407, 603 N.E.2d 477 (citing Wilson v. Board of Fire & Police Commissioners, 205 Ill.App.3d 984, 992, 150 Ill.Dec. 814, 563 N.E.2d 941 (1990) and Basketfield v. Daniel, 71 Ill.App.3d 877, 881, 28 Ill.Dec. 325, 390 N.E.2d 492 (1979)).
3. Under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality can be liable under § 1983 only if its officers acted pursuant to: (1) an official policy; (2) a practice or custom that although not officially authorized, was widespread and well settled; or (3) instructions from a city official with final policymaking authority. 436 U.S. at 690, 98 S.Ct. 2018; Gonzalez v. Village of West Milwaukee, 671 F.3d 649, 664 (7th Cir.2012).
4. Plaintiff mistakenly claims that the defendants' Monell argument was made up of a single sentence. It was, in fact, a brief paragraph with a citation to applicable Seventh Circuit precedent. (Dkt. # 70, at 18). Contrary to plaintiff's belated assertion in his reply brief, this was enough to alert not only the court, but the plaintiff to the question of whether plaintiff could show he suffered a constitutional deprivation at the hands of someone with final policymaking authority. As such, Matter of Prince, 85 F.3d 314 (7th Cir. 1996) does not relieve plaintiff of what the Seventh Circuit has consistently over many years deemed a waiver.
5. Plaintiff points out that his response brief stated that "... Chief Joshua and Mayor Kellogg are policymakers in the City of Harvey," and that "[t]he facts establish that Mayor Kellogg was intimately involved in police discipline and would determine in conjunction with Chief Joshua as to whether termination charges would be filed." (Memorandum of Law in Support of Plaintiff's FRCP 59(e) Motion, at 7; Dkt. # 80, at 10). More than this was needed under Seventh Circuit precedent. Whether someone is a "policymaker" for Monell purposes is an issue that goes beyond the skeletal presentation the plaintiff hoped to get away with. As the Seventh Circuit has explained:
just because [defendant] is the decisionmaker on hiring/firing decisions for the Village government does not necessarily make him the policymaker on those issues. The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. Rather, such an official also must be responsible for establishing final government policy on a particular issue. The determination of whether a person has policymaking authority is a question of state law, and is to be decided by the court.
* * *
Helpful in determining whether an official is a final decisionmaker is an inquiry into: (1) whether the official is constrained by policies of other officials or legislative bodies; (2) whether the official's decision on the issue in question is subject to meaningful review; and (3) "whether the policy decision purportedly made by the official is within the realm of the official's grant of authority." Also helpful is an examination of not only "positive law, including ordinances, rules and regulations, but also the relevant customs and practices having the force of law."
Valentino v. Village of South Chicago Heights, 575 F.3d 664, 675-76 (7th Cir.2009). Here, we know nothing of the City of Harvey's ordinances — village ordinances were significant in Valentino — but we do know that the decisions of the mayor and the police chief were subject to review. It was up to the plaintiff to come up with the applicable case law and marshal whatever facts he had to match them to the law. To successfully oppose the defendants' motion for summary judgment, the plaintiff had to "`wheel out all [his] artillery to defeat it.'" Swearingen v. Momentive Specialty Chemicals, Inc., 662 F.3d 969, 974 (7th Cir.2011). Instead, the plaintiff brought a pen knife to a gun fight.
6. There is Seventh Circuit case law to the contrary that suggests that a threat of termination might constitute an adverse action necessary to support a retaliation claim. See Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 681 (7th Cir.2010) (collecting cases). But, again, this is not an argument plaintiff made and he did not cite any such cases.
7. The defendants failed to respond to the plaintiff's Local Rule 56.1(b)(3) Statement of Additional Facts. See Local Rule 56.1(a)(3)(B) ("All material facts set forth in the statement filed pursuant to section (b)(3)(C) will be deemed admitted unless controverted by the statement of the moving party."); Rao v. BP Products North America, Inc., 589 F.3d 389, 393 (7th Cir.2009); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir.2006).
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