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CONROY v. CITY OF CHICAGO

March 16, 1989

MARGARET L. CONROY, Plaintiff,
v.
CITY OF CHICAGO, ALBERT A. RABY and JUDY STEVENS, individually and officially, Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 This is an action brought by Margaret Conroy against the City of Chicago ("the City") and two employees of the City challenging the termination of plaintiff's employment with the City. The case is brought pursuant to 42 U.S.C. §§ 1983 and 1985. Discovery has been completed, *fn1" and pending is defendants' motion for summary judgment. *fn2" For the reasons described below, defendants' motion is granted.

 II. FACTS *fn3"

 Plaintiff Margaret Conroy, who is white, was employed by the City beginning in 1969 in the Commission on Human Relations ("Commission"). On March 2, 1979, she was given the position of Director of Program Services for the Commission. She held Career Service status. *fn4" In January, 1980, she was transferred to the Department of Housing, still holding the title Director of Program Services and maintaining Career Service status.

 In 1983, Harold Washington was elected Mayor of the City. On about October 12, 1983, plaintiff received a letter from Brenda Gaines, a Washington supporter who was appointed by Washington to head the Department of Housing, stating that plaintiff's employment was terminated effective October 19, 1983. This termination was rescinded on October 13, 1983. On November 29, 1983, Gaines relieved plaintiff of her duties and instructed her to vacate her office in the Department of Housing. In March, 1984, plaintiff was assigned to the position of Director of Program Services of the Commission. She served in that capacity from the middle of March, 1984, until April 16, 1986, maintaining Career Service status and her previous salary.

 In February, 1985, defendant Albert Raby, a Washington supporter, was appointed Director of the Commission. Defendant Judy Stevens, another Washington supporter, became Duty Director of the Commission in January, 1986. On April 16, 1986, at 3:45 p.m., plaintiff was directed to appear at a meeting attended by Raby and Stevens. At that meeting, Raby and Stevens informed plaintiff that she was laid off as of 5:00 p.m. on that day, and Raby handed her a letter to that effect.

 After plaintiff was laid off, a new, lower-grade position of Staff Assistant was created. This position was filled by Sandra Brown, a black woman. The parties dispute whether this person was a "replacement" for plaintiff. The parties agree that plaintiff handled fewer public relations than she had at the Department of Housing, and that she supervised no one although she had supervised a staff at the Department. The parties disagree over whether the reports and memoranda prepared by plaintiff were similar in the two offices.

 Plaintiff filed this action on June 11, 1986. She essentially claims that she was fired because of her race and her failure to actively support Washington. Her original complaint was brought in two counts against the City, Raby, and Mayor Washington. Count I alleged that she had been deprived of property without due process of law, and Count II alleged that the layoff violated her rights under the First Amendment. On December 29, 1986, the Court dismissed portions of the complaint without prejudice due to plaintiff's failure to allege any personal involvement by the Mayor and her failure to allege that her layoff was caused by a policy, practice or custom by the City. See Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985).

 Plaintiff's amended complaint, filed on February 23, 1987, is brought in five counts against the City, Raby and Stevens. Count I alleges that plaintiff was deprived of property without due process of law. Count II alleges that plaintiff was laid off in violation of the First Amendment. Count III alleges that plaintiff's layoff violated her right to equal protection of the law. Count IV alleges a racially motivated conspiracy in violation of 42 U.S.C. § 1985(3). Count V alleges racial discrimination in violation of Title VII of the Civil Rights Act of 1964.

 Defendants contend that plaintiff's layoff was not motivated by political or racial considerations. They argue that plaintiff was laid off for essentially financial reasons; the position she occupied was not needed, so it was eliminated as part of a reorganization of the Commission.

 After discussing the principles which guide analysis of summary judgment motions, the Court will address each of plaintiff's five counts, although not in the order presented in her complaint.

 III. SUMMARY JUDGMENT PRINCIPLES

 Summary judgment is warranted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). In determining whether plaintiff has met this standard, the Court does not weigh the evidence or make credibility determinations. See Anderson, 477 U.S. at 255, 106 S. Ct. at 2513; Stewart v. RCA Corp., 790 F.2d 624, 629 (7th Cir. 1986). Rather, plaintiff's evidence "is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 254, 106 S. Ct. at 2513. However, where plaintiff bears the ultimate burden of proof, a defendant who moves for summary judgment on the basis that there is no genuine issue of material fact need not produce evidence showing the absence of a genuine issue. Id. at 324, 106 S. Ct. at 254. Once defendant points out the absence of a genuine issue, it becomes plaintiff's burden to present sufficient admissible evidence to demonstrate the existence of a jury question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986), quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968); Toro Co. v. Krouse, Kern & Co., 827 F.2d 155, 162-63 (7th Cir. 1987).

 "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphases in original). Thus plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine' issue for trial." Id. at 587, 106 S. Ct. at 1356. Plaintiff must produce sufficient evidence to allow a reasonable jury to return a verdict in her favor. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. See also Beard v. Whitley County, REMC, 840 F.2d 405, 409-10 (7th Cir. 1988).

 IV. TITLE VII (COUNT V)

 Plaintiff's claim under Title VII requires her to demonstrate that her race was a motivating factor in defendants' decision to lay her off. The Supreme Court has defined the necessary showing as follows:

 
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

 Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981), citing McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973). See also Wahab v. Portal Publications, Ltd., 851 F.2d 1011, 1014 (7th Cir. 1988); Andre v. Bendix Corp., 841 F.2d 172, 175 (7th Cir.), cert. denied, 488 U.S. 855, 109 S. Ct. 144, 102 L. Ed. 2d 116 (1988). The Court will address the three steps in this analysis in turn.

 A. Prima Facie Case

 In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court described the elements of a prima facie case alleging disparate treatment in hiring. The Court held that the plaintiff must show:

 
(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 persons of complainant's qualifications.

 411 U.S. at 802, 93 S. Ct. at 1824. The Court recognized that these elements were subject to modification in other contexts. Id. at 802 n.13, 93 S. Ct. at 1824 n.13. In the context of alleged discrimination in a discharge, the Seventh Circuit has stated that a plaintiff must show by a preponderance of the evidence that she was fired from a job for which she was qualified, and which she was satisfactorily performing, while others not in the protected class were treated more favorably. *fn5" Andre, 841 F.2d at 175, quoting Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 179 (3rd Cir. 1985), cert. denied, 475 U.S. 1035, 106 S. Ct. 1244, 89 L. Ed. 2d 353 (1986). See also La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). *fn6"

 In this case, the parties have not presented substantial evidence or argument concerning whether plaintiff was satisfactorily performing her job or whether similarly situated black employees were treated more favorably. Regarding plaintiff's job performance, she presented some evidence that she received favorable evaluations. Defendants present some evidence of dissatisfaction with plaintiff's work, although it is not clear whether any of this dissatisfaction is due to any fault on plaintiff's part or is due to the nature of the position she held. See infra at Part IV.B. Most importantly, however, plaintiff has not presented sufficient evidence to create a genuine issue of fact with respect to defendants' treatment of black employees. Indeed, of six other employees whom plaintiff contends were subjected to adverse employment actions, three were black. See infra at Part V. Plaintiff emphasizes that the individual hired as Staff Assistant upon plaintiff's discharge was black. However, this in itself is insufficient to raise an inference of discrimination. Cf. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1412 (7th Cir. 1984) (replacement of employee with younger person did not mean that discharge was due to age). The court finds that plaintiff has not produced sufficient evidence to establish a prima facie case of discrimination.

 B. Defendants' Nondiscriminatory Reason

 Even if the Court assumes that plaintiff could establish a prima facie case, plaintiff retains the ultimate burden of proving discrimination. Initially, the burden of production shifts to defendants to produce a non-discriminatory reason for plaintiff's layoff. Defendants contend that plaintiff was laid off not because of racial or political considerations but because the job functions of a public relations director were not needed at the Commission. In early 1986, Raby asked Stevens to make a study of the Commission and to make staffing, program and budget recommendations for the federal Community Development Block Grant (CDBG) for Year XII (July 1, 1986 to June 30, 1987). (Raby Dep. at 41; Stevens Dep. at 45-46.) On February 3, 1986, Stevens submitted a report to Raby which merits quotation at length:

 
3. PR/PI Function vs. other needs
 
* I recommend that this position be deleted from next year's CDBG budget and that we use our budget for a function we have greater need of being performed, e.g. the writing of reports and memoranda.
 
What we have now essentially is a very high grade (16) position for Director of Program Services, which is a pr/pi specialty position, when the bulk of our pr and pi is handled and can only be handled by program staff who have knowledge of special communities -- and ethnic media -- to which they relate.
 
By my observation, this is simply the way it has worked out this past year and I see no reason why it would change: when we have pr/pi needs relative to INS actions or immigrant groups, the immigrant program staff person handles it -- usually from start to finish; the Asian-American Liaison handles pr/pi to Asian press and community. Margaret may do followup with reprographics to see when the Asian newsletter will be printed, for example; but Paul writes the copy, etc. When the commission on occasion responds to questions from the media, you usually handle it and I handled the FOI request from the tv reporter last year. Margaret assembled the files which the reporter had requested to review -- but a secretary could have done so.
 
It sometimes takes more time to brief Margaret so that she can handle a request than it would to handle it without her. We are a small department without a need for our own ongoing, mainstream, high-visibility pr effort which a larger department might have. Our pr/pi is small scale and specialized and can be, and is, handled by existing staff.
 
What we do need is a staff position to write reports and memoranda and respond to requests for internal reports and offer general "work flow" assistance. This is really a function that we most need to be performed. We would obviously have to explore what the personnel consequences of such a change in budgeted positions would be; if you think this is an option, I will do so.
 
This might result in significant personnel cost savings, since the less specialized position is likely to be lower grade; and the change would require almost no changes in our MBO plan.

 Raby accepted Stevens' recommendation, and it was subsequently approved by the City Department of Personnel. (Raby Dep. at 50.) The position of Director of Program Services in the Commission was removed from the CDBG budget as of June 30, 1986. *fn7" The position of Staff Assistant, at a lower pay grade, was inserted in the budget effective July 1, 1986. The duties of the Staff Assistant position focus more on writing reports and memoranda, and they differ substantially from the functions of the position of Director of Program Services. *fn8" Several Commission employees were also reclassified downward or upward.

 C. Pretext

 Defendants having presented a valid, nondiscriminatory reason for plaintiff's layoff, the burden reverts to plaintiff to establish that defendants' proffered reason is a pretext for discrimination. "The plaintiff can meet this burden by demonstrating either that the employer's explanation is unworthy of credence or that it is more likely that a discriminatory reason actually accounted for the employer's actions." Andre, supra, 841 F.2d at 175. If plaintiff fails to produce sufficient evidence to allow a reasonable jury to conclude that defendants' proffered reason is a pretext, defendants are entitled to summary judgment. Mays v. Chicago Sun-Times, 865 F.2d 134, 137 (7th Cir. 1989); Klein v. Trustees of Indiana University, 766 F.2d 275, 282 (7th Cir. 1985). See also, e.g., Andre, 841 F.2d at 176; Beard v. Whitley County, REMC, 840 F.2d 405, 412 (7th Cir. 1988); Lee v. National Can Corp., 699 F.2d 932, 937 (7th Cir.), cert. denied, 464 U.S. 845, 104 S. Ct. 148, 78 L. Ed. 2d 138 (1983).

 Plaintiff has not directly argued that she has produced evidence which supports a finding of pretext in the Title VII context. However, with respect to her due process count she does present three arguments in support of a pretext claim. See infra at Part VIII. Despite plaintiff's failure to rely on those arguments in support of her Title VII claim, the Court will examine them to determine whether they suffice to create a genuine issue of material fact allowing plaintiff to survive summary judgment on her Title VII claim.

 First, plaintiff argues that defendants Stevens and Raby did not inform the Commissioner of Personnel that they believed plaintiff was not working within her job description. Rule I, Section 8 of the City Personnel Rules provides:

 Section 8 - Reallocation of Positions

 
(a) A department head shall report to the Commissioner of Personnel whenever a significant change is made in the duties and responsibilities of a position involving either the adding of new duties or the taking away or modification of existing duties.
 
(b) The Commissioner of Personnel, upon his or her own initiative, or at the request of a department head, may investigate the allocation of a position and, if justified, shall reallocate the position to a more appropriate class.
 
(c) A position may be reallocated to a more appropriate category based on the standards set forth in Chapter 25.1-3 of the Municipal Code.
 
(d) When reallocation requires, the Commissioner of Personnel shall create a new class or make other appropriate changes in the ...

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