United States District Court, Northern District of Illinois, E.D
June 26, 1985
ANGEL CORREA, PLAINTIFF,
CITY OF CHICAGO, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Angel Correa ("Correa") has sued the City of Chicago ("City"),
claiming Correa's firing as a City employee was impermissibly
motivated by political considerations. After Honorable Nicholas
Bua had conducted one day of a bench trial September 17, 1984,
the case was transferred to this Court's calendar. By agreement
the transcript of those proceedings was treated as part of the
trial record before this Court, and the trial was completed March
In accordance with Fed.R.Civ.P. ("Rule") 52(a), this Court
finds the facts specially as set forth in the following Findings
of Fact ("Findings") and states the following Conclusions of Law
("Conclusions"). To the extent if any the Findings as stated
reflect legal conclusions, they shall be deemed Conclusions; to
the extent if any the Conclusions as stated reflect factual
findings, they shall be deemed Findings.
Findings of Fact
1. Correa is a resident, registered voter and taxpayer in the
City of Chicago, Illinois (Tr. 1-55).*fn1 City is an Illinois
2. On May 5, 1972 a consent decree (the "1972 Decree") was
entered in Shakman v. Democratic Organization of Cook County,
356 F. Supp. 1241 (N.D.Ill. 1972) ("Shakman"). By the terms of
the 1972 Decree, its injunctive provisions are applicable to and
binding upon City, its agents, servants and employees.
3. On June 20, 1983 another consent decree (the "1983 Decree")
was entered in Shakman. Schedule G of the 1983 Decree listed
certain City job titles (and corresponding job codes) that were
to be exempt from the requirements of 1972 Decree ¶ E(1), such
exemptions being established pursuant to 1983 Decree ¶ N:
N. Exempt Positions. The Governmental Employment
positions under the control of the City of Chicago as
listed in the attached Schedule of Exempt Positions
are positions exempt from this Judgment and the 1972
Jurisdiction was retained, under a decree entered
contemporaneously with the 1983 Decree, to consider petitions by
persons discharged or demoted from Schedule G exempted positions,
if any such person requested "for good cause" that the position
he or she occupied or had occupied be deleted from the Schedule.
4. One of the Schedule G listed exemptions was the position of
Deputy Commissioner of Neighborhoods (Title Code 9710) in the
Department of Neighborhoods ("DON"). DON was created by City
ordinance effective January 1, 1980 (the "Ordinance"). DON's
general duties, as set forth in the Ordinance, included (a)
providing information and assistance in response to requests
concerning governmental services, (b) informing the general
public of the availability of governmental services and assisting
the public in obtaining such services and (c) coordinating
neighborhood improvement and self-help programs (Def.Ex. 2). In
the performance of those duties, DON was directed by the
Ordinance (a') to consult with community and neighborhood
organizations throughout City and promote communication between
such organizations in order to become aware of and assist in the
resolution of neighborhood concerns, (b') to coordinate programs
of such organizations and the various City agencies and
departments designed to resolve neighborhood concerns and (c') to
provide educational services to such organizations and the
general public concerning services provided by the City (Tr.
2-12; Def.Ex. 2).
5. DON operated field service offices to process community
concerns, to provide assistance to citizens and community groups
and to initiate, coordinate and implement special programs geared
to community needs (Tr. 2-39; Def.Ex. 5A). DON also conducted an
Ethnic Outreach Program to deal with the special concerns of
individual national groups (Def.Ex. 3). In substantial part DON
was involved in types of activities that were sensitive and
enabled City's Mayor and the incumbent administration to carry
out their policy goals (Tr. 2-14, 81).
6. Deputy Commissioner of Neighborhoods was the third highest
ranking position in DON. It carried an annual salary of $36,780,
one of the highest in DON (Tr. 1-90, 112).
7. It is clear from all of the following that the position of
Deputy Commissioner of DON authorized "meaningful input into
government decisionmaking on issues where there is room for
principled disagreement on goals or their implementation"
(Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981),
cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139
(1982), quoted in Tomczak v. City of Chicago, 765 F.2d 633,
640-641 (7th Cir. 1985)):
(a) DON's Deputy Commissioner was authorized to
provide the Commissioner with input on which programs
would best serve the community, and thus to help
establish policy. He also acted as the liaison
between the incumbent administration and the
communities he served, where he spoke with the
authority of a high administration spokesman (Tr.
1-76, 108, 112, 128-30).
(b) As the Mayor's representative in the community,
the Deputy Commissioner was in a position and had the
opportunity to undercut the administration's policy
goals by failing properly to communicate its goals or
by failing to address community disputes with
requisite skill or in the manner expected by the
administration, thus damaging the public perception
of the administration and its ability
to achieve its policy goals (Tr. 1-12, 31-32; Tr.
2-23-24, 26-27, 56-57, 79-81).
(c) Among other responsibilities, the Deputy
Commissioner was properly expected to be capable of:
(1) managing and directing the activities of
large numbers of DON personnel in all areas of City
(and Correa's successor as Deputy Commissioner,
Peter Earle, Jr. ("Earle"), did in fact do so) (Tr.
1-30, 50, 153; Tr. 2-23-24, 32, 39-41, 82);
(2) working closely with the Commissioner in
developing DON policies (and Earle did in fact do
so) (Tr. 1-30, 45, 50, 108; Tr. 2-40-41, 82);
(3) filling in for the Commissioner and speaking
for him to community groups, City cabinet officers,
representatives of the state and federal
governments and the press (and Earle did in fact do
so) (Tr. 1-12, 31-32, 107-08; Tr. 2-23-24, 27,
40-42, 56, 79-80);
(4) handling confidential or sensitive matters
(and Earle did in fact do so) (Tr. 1-13; Tr. 2-24,
(5) proposing and formulating policies and
programs and making decisions as to the allocation
of resources and establishment of priorities in DON
(and Earle did in fact do so) (Tr. 1-30, 45, 50,
107-08; Tr. 2-40, 82).
8. Correa was appointed as Deputy Commissioner of Neighborhoods
by Mayor Jane Byrne in November 1979, effective January 1, 1980
(Tr. 1-60, 97). At that time Correa, who does not have a college
degree, was 24 years old (Tr. 1-90).
9. Correa's employment before his appointment as Deputy
Commissioner was with a hardware store, as a newspaper delivery
manager and, for a few months after the 1979 election, with the
Department of Human Services (Tr. 1-58-59, 91-92). During his
brief tenure with the Department of Human Services Correa was
suspended for several days without pay for unauthorized use of a
city vehicle (Tr. 1-96) and received a below-average performance
evaluation (Def.Ex. 21; Tr. 2-89-90). Before his appointment as
Deputy Commissioner of DON, Correa had never supervised the
operations of a staff of a considerable number of people (Tr.
10. Immediately after Correa was appointed by Mayor Byrne as
Deputy Commissioner, he was informed by Harry Sikorski, DON's
then Commissioner, that even though Correa nominally had the
title he was not going to function as a Deputy Commissioner (Tr.
1-107). Instead Correa functioned at the level of an outreach
worker (Tr. 1-111; Tr. 2-31), and his work responsibilities were
confined to one segment of City (Tr. 2-33). As Deputy
Commissioner Correa did not perform all the functions normally
expected of that position (Tr. 1-108; Tr. 2-31, 84, 86; Pl.Ex.
33; Def.Ex. 5).
11. Joseph E. Gardner ("Gardner") was appointed Acting
Commissioner of DON May 23, 1983 (Tr. 2-11). After being
appointed Gardner reviewed the duties and qualifications of DON's
staff, beginning with upper management personnel. Gardner
personally discussed their positions with them and requested a
written memorandum from each discussing his or her duties. Based
on that review Gardner concluded correctly that Correa (a) was
not performing all the duties expected of a Deputy Commissioner
and (b) was not qualified to perform at the level expected of a
Deputy Commissioner (Tr. 1-21, 32, 36; Tr. 2-29-33, 68-71;
12. On July 13, 1983 Gardner terminated Correa as Deputy
Commissioner effective July 22, 1983 (Tr. 1-18-19; Pl.Ex. 1).
Thereafter Gardner appointed Earle to replace Correa as Deputy
Commissioner. Earle has a bachelor's degree in sociology and
social welfare and had served as an administrator of neighborhood
and community organizations for several years at the time of his
appointment. Earle was qualified to and did perform the duties
expected of a Deputy Commissioner in a way Correa was not capable
of doing and had not done (see Finding 7(c)) (Tr. 1-47; Tr. 2-37,
58; Def.Exs. 8, 8-A, 8-B, 8-C).
13. Gardner terminated Correa because Correa lacked the skills,
background and experience necessary to perform the proper and
expected functions of a Deputy Commissioner (Tr. 2-33-34, 60,
62). Gardner did not terminate Correa for political reasons. He
never asked Correa about his political affiliations and did not
know what they were. Had Correa been a supporter of Mayor Harold
Washington, Gardner would still have terminated him. Correa was
never told by anyone his termination was politically motivated.
No credible evidence would support a finding of political
motivation for such termination (Tr. 1-23-24, 141-42; Tr. 2-36,
14. Between the election of Harold Washington as City's Mayor
and the elimination of DON by action of the City Council
effective December 31, 1983, only 4 of 16 persons employed in
exempt positions in DON were discharged by Gardner. As to the
other 12 retained by Gardner, his decisions to retain them were
unaffected by the fact he assumed or actually knew many of them
had supported Jane Byrne in the 1983 mayoral primary election
(Tr. 1-44, 47; Tr. 2-43, 46, 74-75).
15. DON was abolished by the City Council effective December
31, 1983. While some of DON's functions were transferred to the
Mayor's Office of Inquiry and Information, its outreach functions
were eliminated. That abolition action was taken by the City
Council even though (or perhaps because) the Mayor viewed DON as
the "flagship" by which to increase City's levels of cooperation
and partnership. No position exists in the Mayor's Office of
Inquiry and Information with functions similar to those performed
by Correa and Earle (Tr. 2-46, 48, 50, 52; Def.Ex. 10).
16. In summary:
(a) Deputy Commissioner of DON was a position
exempt from restrictions on politically based
(b) Gardner's decision to terminate Correa as
Deputy Commissioner was not based on political
considerations in any event.
Conclusions of Law
1. This Court has subject matter jurisdiction over this action
under 28 U.S.C. § 1331 and pursuant to the retention of
jurisdiction in Shakman (see the last sentence of Finding 3).
2. Determination whether "[political] affiliation is an
appropriate requirement for the effective performance of the
office" (Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287,
1295, 63 L.Ed.2d 574 (1980)) as the Deputy Commissioner of DON
"require[s] examination of the powers inherent in [that] office,
as opposed to the functions performed by a particular occupant of
that office" (Tomczak, at 640).
3. Deputy Commissioner of DON was a position for the effective
performance of which political affiliation is an appropriate
requirement — or to put the standard in different though legally
equivalent terms, it was a position properly exempt from inquiry
whether employment decisions concerning that position were based
on political affiliation — because:
(a) It involved policy to such a degree and was so
confidential in nature with regard to policy that it
should properly be so exempt. See Elrod v. Burns,
427 U.S. 347, 368, 96 S.Ct. 2673, 2687, 49 L.Ed.2d
547 (1976); id. at 375, 96 S.Ct. at 2690 (Stewart,
J., concurring in the judgment).
(b) It authorized, both directly and indirectly,
meaningful input into government decisionmaking on
issues where there is room for principled
disagreement on goals or their implementation.
Nekolny, 653 F.2d at 1170; Tomczak, at 641.
(c) It conferred on its occupant the type of
discretion that could be used to thwart the goals,
and obstruct the implementation of policies, of
City's Mayor and his administration. Elrod, 427
U.S. at 367, 96 S.Ct. at 2686.
4. Abolition of DON after Correa's termination (and while his
successor was serving as Deputy Commissioner) does not in any way
indicate Correa's termination was politically motivated.
Tomczak, at 643. Indeed, even if it could so indicate, in this
instance such abolition ran counter to the goals of City's Mayor
and his administration.
5. Deputy Commissioner of DON (Title Code 9710) was properly
classified as an exempt position under Schedule G of the 1983
6. Correa's inability and failure to carry out the full range
of functions properly attributable to, and the powers inherent
in, the office of Deputy Commissioner of DON is irrelevant to the
foregoing Conclusions. It is however relevant to a conclusion
whether political affiliation was a substantial or motivating
factor in Correa's termination from that office.
7. Correa has failed to carry his burden of establishing, even
by merely a preponderance of the evidence, that political
affiliation was a substantial or motivating factor in his
termination. Indeed, there is no credible evidence indicating
political affiliation was a factor in Correa's termination at
all. City has carried its burden of establishing Correa would
have been terminated in any event for reasons not based on
It is therefore ordered and adjudged that plaintiff Angel
Correa take nothing and that this action be dismissed on the
merits. Defendant City of Chicago shall recover of Correa its
costs of action.