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Wolf v. City of Fitchburg and G. Jean Seiling

decided: March 27, 1989.


Appeal from the United District Court for the Western District of Wisconsin, No. 87-C-370-S -- John C. Shabaz, Judge.

Posner, Ripple, and Kanne, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge

The plaintiff-appellant Nancy Wolf appeals the district court's grant of summary judgment on all counts to the defendants-appellees City of Fitchburg, Wisconsin and G. Jean Seiling. In her section 1983 complaint, Ms. Wolf alleged violations of her constitutional right to due process stemming from her termination as treasurer of Fitchburg and requested injunctive and monetary relief. The district court held that Ms. Wolf failed to establish any genuine issue of material fact to support her claim and that the defendants were entitled to judgment as a matter of law. We affirm.


Nancy Wolf is the former treasurer of the City of Fitchburg, Wisconsin; G. Jean Seiling is the former mayor of Fitchburg. The relevant facts of this case reach back to April 1981 when Ms. Wolf was first elected as treasurer of the then-Town of Fitchburg; she was re-elected to that position in April 1983. Town treasurer was a part-time job-entailing only twenty hours of work per week.

In April 1983, soon after Ms. Wolf's re-election, the Town was re-incorporated as the City of Fitchburg. On August 2, 1983, the city council (Council) met to prepare a transition from the town to city form of government. Then-Mayor LeFrambois proposed, and the Council approved, a motion to appoint Ms. Wolf as city treasurer for the remainder of her election term (until April 1985). Ms. Wolf took the oath of office and filed a bond as city treasurer.

Over the course of the next year, the Council took three actions that are relevant to this case. First, in August 1983, the Council re-adopted the town's civil service ordinance (CSO) to apply to the city employees. Fitchburg, Wis., Ordinance 83-03, R.54 at Ex. 2. Second, in October 1983, the Council adopted Ordinance 83-05, which provides that appointments to city office shall be by mayoral appointment subject to Council confirmation. Fitchburg, Wis., Ordinance 83-05, R.47 at Ex. 3. Third, on April 10, 1984, the Council adopted the recommendations contained in a study of the city government structure prepared by the accounting firm of Arthur Young. Fitchburg City Council Minutes, Apr. 10, 1984, Dep. of Melby at Ex. 6. That study suggested that the half-time positions of city treasurer and deputy clerk be categorized as civil service appointments.

On April 24, 1984, pursuant to the selection procedures of the CSO, Ms. Wolf received a second job, deputy clerk. This position required 20 hours of work per week. Since the position of city treasurer was also a part-time job -- entailing only twenty hours of work per week -- Ms. Wolf now worked forty hours per week. City budgets for the years 1985, 1986, and 1987 showed as a single line-item Ms. Wolf's salary as "treasurer-clerk." In 1985, she received statements from the city clerk and the alderman who chaired the city's personnel committee that the position of treasurer was now "within the civil service." During that time, she also received fringe benefits such as paid holidays, sick leave, and hospitalization protection on a par with those benefits received by full-time permanent civil servants.

In April 1985, Ms. Seiling was elected mayor. She did not reappoint Ms. Wolf as treasurer, nor did she appoint anyone else to the office. Ms. Wolf continued working as city treasurer. In April 1987, Mayor Seiling was re-elected, and on April 28, she announced her intention "not to reappoint" Ms. Wolf as treasurer. Ms. Wolf continued in the office until a new treasurer was appointed and confirmed.

Maintaining that she was a civil servant, Ms. Wolf requested a hearing as to whether there was cause for her termination. Her request was denied. Ms. Wolf then brought this action under 42 U.S.C. ยง 1983 in which she sought reinstatement and damages stemming from the alleged violation of her due process rights under the Constitution.




In this appeal, we review de novo the district court's grant of summary judgment to the defendants. "[We] must decide whether the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to the judgment as a matter of law." Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 360 (7th Cir.) (per curiam), cert. denied, 484 U.S. 820, 108 S. Ct. 79, 98 L. Ed. 2d 42 (1987); see also DeValk Lincoln Mercury, Inc. v. Ford Motor Corp., 811 F.2d 326, 329 (7th Cir. 1987).

With respect to the existence of a genuine issue of material fact, we note that both sides submitted substantial evidence--affidavits, depositions, and documentary exhibits--to the district court. A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Fed. R. Civ. P. 56. At the "summary judgment stage, the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. If the evidence presented by the nonmovant, Ms. Wolf, was merely colorable or was not significantly probative, summary judgment would be proper. See id. at 249-50; see also First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967) (per curiam). If, however, doubts remain as to the existence of a material fact, then those doubts should be resolved in favor of the nonmoving party and summary judgment denied. DeValk Lincoln Mercury, 811 F.2d at 329; Dreher v. ...

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