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GAMBOA v. WASHINGTON

June 27, 1989

RAYMOND GAMBOA, Plaintiff,
v.
HAROLD WASHINGTON,1 et al., Defendants



The opinion of the court was delivered by: MORAN

 JAMES B. MORAN, UNITED STATES DISTRICT JUDGE

 Plaintiff Raymond Gamboa brings this action against defendant City of Chicago and six individual defendants. Gamboa charges that he was transferred, demoted and suspended because he is Hispanic and did not support Harold Washington in the 1983 mayoral election. The six individual defendants are Harold Washington, Mayor of the City of Chicago 1983-1987; Judith Walker, appointed Commissioner of Department of Human Services ("DHS") in May 1984; Charles Ford, Acting Director of Community Services at DHS in February 1984 and appointed to Deputy Commissioner at DHS in March or April 1985; Eugene Love, appointed Director of Emergency Services Unit at DHS on April 1, 1985; Win Humphrey, Field Supervisor of Emergency Services Program, DHS, from January 1984 to May 1985; and Jesse Hoskins, appointed Commissioner of the City of Chicago Department of Personnel on July 1, 1985.

 Gamboa charges the City with violations of the First Amendment, the Equal Protection Clause (Fourteenth Amendment), racial discrimination and conspiracy, under 42 U.S.C. ยงยง 1981, 1983 and 1985. Defendants challenge this action and move for summary judgment on the grounds that as a matter of law the individual defendants are immune from suit and, further, that there remain no genuine issues of material fact. This court finds that there are genuine issues of material fact and, therefore, denies defendants' motion.

 FACTS

 We view the facts in the light most favorable to plaintiff and herein provide an abbreviated summary.

 Then, in January 1984, Gamboa was promoted to the position of district manager of DHS-South Chicago -- grade 10 to grade 16 -- at the increased salary of $ 2,255 a month. At the time of his appointment to the position of district manager Gamboa was one of the highest ranking and highest paid Hispanics in the DHS. Also significant is the fact that during the 1983 primary campaign for mayor, Gamboa worked for the Regular Democratic Organization of the 10th Ward doing precinct work and canvassing. After Mayor Washington won the Democratic primary Gamboa worked with the 10th Ward Regular Democratic Organization, supporting Bernard Epton for Mayor.

 From 1983 to 1985 DHS and the Department of Personnel conducted a series of job audits in order to properly correlate job positions and titles with the work that was actually being performed. These assessments of job functions were often, but not always, based on CS-15 forms. These forms were filled in by the employees and listed the permanent duties that those employees were actually performing. As of January 1984 Gamboa held the title of district manager of DHS-South Chicago and was performing the duties of district manager until he was removed by Charles Ford. From the end of February 1984 to the middle of March 1984, Ford transferred more than half of the management personnel at DHS (approximately 50, including Gamboa). With the exception of Gamboa, however, all of the other transfers were lateral moves and did not result in personnel performing duties of a lower title or lower grade.

 On February 21, 1984, Ford transferred Gamboa temporarily to the Division of Emergency Services in the Central Office, for a special assignment, to assist the Hispanic community in taking advantage of the emergency services of DHS. Ford told Gamboa that the assignment to field supervisor was temporary and that this special project was not a demotion and that he did not intend that there be any loss in pay grade or title. At the time of his transfer, Gamboa was replaced at DHS-South Chicago by Leon Duminie, who is black. The Department of Personnel permits department heads to reassign employees so long as the reassignment maintains the same kind and quality of duties with appropriate title and salary. Because he was district manager, Gamboa had senior executive status (SES). As a result, Gamboa should have been terminated as district manager and then reemployed as a field supervisor.

 Shortly after Gamboa was transferred to the Central Office there were several rallies and protests in both the 10th Ward and at City Hall to voice opposition to both the transfer and replacement of Gamboa by Duminie. When specifically questioned by the Spanish Association of the Inter-American Journalists and Broadcasters of Illinois about Gamboa's transfer and replacement by a black, Mayor Washington answered that the transfer was not a demotion and that Duminie was appointed only on an interim basis and a Hispanic would be named district manager at South Chicago. Moreover, Washington opined that the protest seemed to be localized and coming from the 10th Ward Regular Democratic Organization and not the community at large. Others who had been active with that organization had also been subjects of adverse DHS personnel actions and, in one instance, the reason given related to the employee's political activities.

 Approximately one year later, in February 1985, Gamboa's immediate supervisor, Win Humphrey, assigned him to work temporarily as a community intervention worker on a mobile team on the night shift, starting at 11:00 p.m. Humphrey had told Ford that he thought Gamboa needed more field experience, even though Gamboa had been performing the job of field supervisor in the emergency services unit, in charge of five or six teams, for about a year. Both Ford and Humphrey characterized this new reassignment as temporary. With no prior notice, Humphrey told Gamboa about his new reassignment at a staff meeting.

 At Gamboa's request, Humphrey sent Gamboa a memo dated February 12, 1985, telling Gamboa that this temporary job reassignment and shift change was effective immediately. The memo also specified that there would be a review at the end of thirty days, on March 21, 1985. Sometime in March 1985 Judith Walker, Commissioner of DHS, announced a reorganization at a general meeting of all DHS personnel. At this meeting personnel were apprised that this reorganization included reclassifying, laying off and firing many current employees. Personnel were also advised of the procedures, including the appeal process, for any employee reclassified, laid off or fired. Gamboa attended this meeting.

 Gamboa wrote a memo to Humphrey on March 29, 1985, requesting a review of his temporary reassignment. Eugene Ford had handwritten a note to Love, Director of Emergency Services, on the bottom of Gamboa's memo to Humphrey, advising her to keep Gamboa on the third shift and to speak with Humphrey, who would provide additional information. Eugene Love then wrote to Gamboa on April 29, 1985, concerning Gamboa's reassignment from district manager to field supervisor to crisis intervention worker, on the third shift, from 11:00 p.m. to 7:00 a.m. Love advised Gamboa that he would not change his shift or reassign him to a position at a managerial level, but suggested Gamboa apply for any position posted by the Personnel Office.

 Sometime around April 22, 1985, Gamboa was asked to fill out a CS-15, describing his current duties as a crisis intervention worker. Gamboa refused because he believed his reassignments to be temporary. Moreover, he believed that by filling out the CS-15 for community intervention worker he would automatically be downgraded in title and pay. Furthermore, Gamboa understood that the CS-15 forms were not required of those employees in temporary assignments and, in fact, some temporarily assigned employees did not fill out CS-15 forms at this time. Then, on May 17, 1985, Gamboa did complete a CS-15 form and listed his duties as a district manager.

 Shortly thereafter Love requested James Mosley, Gamboa's supervisor, to fill out a CS-15 for Gamboa, listing Gamboa's duties as that of community intervention worker. Gamboa was then suspended for one day, on June 5, 1985. Consequently, on July 1, 1985, Gamboa was reclassified from district manager, grade 16, to community intervention worker, grade 11. Gamboa insists, contrary to City policy, that while there were four vacancies for the position of district manager since his reclassification, those vacancies have never been posted in either the Department of Human Services or the Department of Personnel.


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