Whether Mayor Washington or his department heads or supervisors approved the adverse job actions against plaintiff because of his political activities and/or affiliations, or because he is Hispanic, is central to this lawsuit. Here, we must view all reasonable inferences from the facts in the light most favorable to plaintiff. See Hermes, supra. For the reasons previously discussed, we conclude that there are genuine issues of disputed material facts and that defendants are not entitled to judgment on the issue of municipal liability as a matter of law.
Finally, defendants claim qualified immunity exonerates them as individuals, and it is here, with respect to the First Amendment claims, that defendants have the most persuasive contention. Qualified immunity is an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). Government officials, as individuals, are immune from liability when they are performing discretionary functions, so long as their conduct does not violate "clearly established" law "of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). For purposes of a motion for summary judgment, the court may determine whether the law was in fact clearly established at the time of the challenged conduct. Id. The standard here is objective reasonableness. Id. Because the standard is objective, it is also fact-specific. Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987). Qualified immunity depends on the specific conduct of the individual defendants and the district court must look to all the evidence to determine precisely what that specific conduct was. Green v. Carlson, 826 F.2d 647, 651 (7th Cir. 1987).
Plaintiff was first transferred from his position of district manager of South Chicago in February 1984. A lateral transfer, with no loss of salary or rank, under the same working conditions, was not "clearly established" as being constitutionally impermissible with respect to political considerations. Cygnar v. City of Chicago, 652 F. Supp. 287, 297 (N.D. Ill. 1986). At a minimum, however, it was clearly established in 1985 that a politically motivated constructive discharge was actionable.
A key question remains whether or not plaintiff was a confidential employee. If he was, then plaintiff's transfer was not unlawful. Defendants argue that assuming arguendo the position of district manager has not been clearly established as confidential and exempt from First Amendment protection, then they are immune from liability because of the dispute. On that they may well be right, and we recognize that a qualified immunity defense should be determined, if possible, short of trial. But the reason for that is that the official should not have to be put to the expense and difficulties of trial unnecessarily, and here there is going to be a trial in any event. Further, this was one of the few issues not extensively briefed.
The Seventh Circuit has concluded that when, as here, a claim of qualified immunity is part of a motion for summary judgment, the court must look to the undisputed evidence in the light most favorable to the plaintiff. Green at 652. If those undisputed facts establish as a matter of law that defendants' conduct did not violate clearly-established law, defendants are entitled to qualified immunity. "However, if there are issues of disputed fact upon which the question of immunity turns, or if it is clear that the defendant's conduct did violate clearly established norms, the case must proceed to trial." Id.
The question of qualified immunity here is a close one, but we do not believe that the present record clearly establishes that the district manager position reasonably could be viewed as a confidential position -- or at least the issue is sufficiently in doubt to preclude summary judgment on qualified immunity grounds when the defendants must try the other issues in any event.
For the foregoing reasons, defendants' motion for summary judgment is denied.