that the City . . . denied [Carol's] husband a limited duty position granted to other disabled firemen and paramedics." (Plaintiffs Mem. at 19.) Plaintiffs make no substantial argument that other firemen and paramedics in the same situation as Lawrence have been granted light duty assignments. Although plaintiffs' statement of facts does cite deposition evidence that various personnel given light duty assignments had serious medical problems (Plaintiffs Mem. at 9-10), that evidence shows substantial differences between the situations of those individuals and Lawrence's situation. (See Tully Dep. at 20-21, 27-29, 39, 54-56, 58, 73-74.) Plaintiffs present no direct evidence that Lawrence's condition was such as to entitle him to such an assignment. Furthermore, although plaintiffs' factual narrative contains allegations that certain officials of the defendants harbor ill feelings towards Carol, plaintiffs present no specific evidence which tends to show that the denial of a light duty assignment to Lawrence was motivated to any extent by a desire to punish plaintiffs for Carol's EEOC charges and her lawsuits.
Because plaintiffs have presented no evidence from which a jury could reasonably conclude that Carol's exercise of First Amendment rights was a substantial factor in the denial of Lawrence's light duty request, the City is entitled to summary judgment as to this allegation. Alternatively, the City is entitled to summary judgment because plaintiff has presented no evidence which tends to show that the City's proffered reason for the denial was illegitimate.
7. Refusal to Arbitrate
Plaintiffs' next charge is that the Union refused to arbitrate a grievance filed by Lawrence to contest the City's denial of his light duty request. (Second Amended Complaint para. 25(f).) The Union's position on this issue is incorporated in its argument that plaintiffs have presented no evidence that any of the actions taken by the Union were performed for retaliatory motives. See supra at slip op. p. 20. Plaintiffs' memorandum contains no discussion of the Union's alleged failure to arbitrate a grievance, and the Court concludes that plaintiffs have abandoned this argument. Defendants are therefore entitled to summary judgment as to this allegation.
8. Computation of Lawrence's Benefits
Plaintiffs' next charge is that the Board has "refused to give Lawrence Herhold ordinary disability benefits based upon his time in service with the Fire Department, but insists that benefits are to be computed contrary to statute based on time of membership in the fund." (Second Amended Complaint para. 25(g).) The Board argues that Lawrence's application was a case of first impression regarding the computation of benefits. The Board, based on its understanding that the compromise which allowed paramedics to become covered by the Firemen's Fund was based on an intent that paramedics be treated as new employees, reached a consensus that benefits should be computed as of the date of coverage. The Board litigated this issue up to the Illinois Supreme Court. Furthermore, the Board's members were unaware of Carol's EEOC charges or her promotion lawsuit when the Board considered Lawrence's application and when it decided to appeal the Circuit Court's ruling. (Board 12(e) para. 81.) Thus the Board argues that plaintiffs have presented no evidence that the Board's actions could have been taken for retaliatory motives, and alternatively that even assuming such motives, the Board had a legitimate reason for taking its position.
Plaintiffs' brief and conclusory response essentially states that the very number of disagreements between plaintiffs and the Board is evidence that the Board's actions were performed for retaliatory reasons. (Plaintiffs' Mem. at 24-25; see supra at slip op. pp. 22-23.) Plaintiffs do not explain how retaliation could be the motive when the Board members did not know of Carol's EEOC charges and her promotion lawsuit, and plaintiffs did not respond at all to the Board's argument that its reasons for computing the benefits as of the coverage date were legitimate and not pretextual. In the absence of any more substantial evidence, the Court finds that the Board is entitled to summary judgment on this issue.
9. Taxability of Benefits
Plaintiffs' final contention is that the Board has "declared Lawrence Herhold's ordinary disability compensation for 1986 to be taxable income contrary to IRS regulations and contrary to their [sic] interpretation of these regulation[s] as stated in its correspondence to him." (Second Amended Complaint para. 25(h).) Plaintiffs have apparently abandoned their claim that the declaration of taxability is contrary to the regulations; plaintiffs contend instead that the letter sent to Lawrence was misleading. The Board's primary argument on this issue is that plaintiff can present no evidence that the letter was sent due to retaliatory motives. This argument is based on evidence that all ordinary disability beneficiaries received the same letter, that the letter was prepared by the Board's Accounting Manager without instruction from any Board member, and that the Accounting Manager was unaware of Carol's promotion lawsuit or EEOC charges.
Plaintiffs' response is the same one described in Parts 5 and 8, see supra at slip op. pp. 22-23, 26 -- that in light of the number of problems plaintiffs have experienced with the Board, the most reasonable explanation of the Board's actions is retaliatory motives. Again, in the absence of any more evidence than this, the Court cannot allow plaintiffs to present this claim to a jury.
B. Policy or Custom
The City additionally contends that it is not liable under § 1983 because the CFD's actions of which plaintiffs complain were not undertaken pursuant to a City policy. It is clear that "municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, 'that is, acts which the municipality has officially sanctioned or ordered.'" City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 924, 99 L. Ed. 2d 107 (1988), quoting Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986). Furthermore, "only those municipal officials who have 'final policymaking authority' may by their actions subject the government to § 1983 liability." Id., quoting Pembaur, 475 U.S. at 483, 106 S. Ct. at 1300. The plurality in Praprotnik held that "identification of policymaking officials is a question of state law," and expressed confidence that "state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business." Id. at 924-25. The plurality further emphasized that "a federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it." Id. at 925.
In this case, the City argues that its official policy with respect to the actions challenged by plaintiffs was established by the Mayor and the City Council when, on March 30, 1982, they enacted as an ordinance the Labor Contract between the City and the Union (the "Contract Ordinance"). Section 2 of the ordinance enacting the Contract Ordinance provided: "This Ordinance shall govern and prevail over all ordinances, statutes and rules and regulations contrary to or inconsistent with the terms of this Ordinance." Section 14.1 of the Contract Ordinance provided that although the CFD may determine inherent managerial policy, it must follow the provisions of the Ordinance in doing so. Among other things, the Contract Ordinance stated that "no employee shall be transferred or detailed for punitive reasons" (§ 16.7(F)) and that disciplinary action may be taken only against an employee who fails to fulfill his employment responsibilities (§ 16.2(A)). The City thus argues that the actions alleged by plaintiffs, if true, contravene official municipal policy as established in the Contract Ordinance, which in turn was enacted by the official with the authority to set final municipal policy -- the Mayor and the City Council.
In Praprotnik, the Court recognized very limited circumstances in which actions by non-policymaking officials could subject a municipality to § 1983 liability:
First, . . . egregious attempts by local government to insulate themselves from liability for unconstitutional policies are precluded by a separate doctrine. . . . [A] plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law. . . .
Second, . . . the authority to make municipal policy is necessarily the authority to make final policy. When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality. Similarly, when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.
108 S. Ct. at 926 (citations omitted) (emphases in original).
Plaintiffs do not argue that state law does not vest final policymaking authority in the Mayor and City Council or that state law does not recognize the Contract Ordinance as official policy. Nor do plaintiffs argue that the actions they challenge fall within one of the above exceptions -- that the actions were taken pursuant to a widespread practice which was so permanent and well settled as to constitute a custom or usage with the force of law, that the actions were performed pursuant to the exercise of constrained discretion, or that the actions were ratified by the City's policymakers. Rather, plaintiffs argue that the Court should look beyond state law to the "realities of municipal decisionmaking" and find that one Commissioner Blair is the final policymaking authority. Plaintiffs premise this argument on the concurrence of Justice Brennan in the Praprotnik case, 108 S. Ct. at 928, although plaintiffs characterize their extensive quotation from this concurrence as being from a "majority" opinion by Justice O'Connor which supposedly "rejects" and "criticizes" the plurality opinion. (Plaintiffs' Argument in Opposition at 15.) On the contrary, Justice O'Connor wrote the plurality opinion, and Justice Brennan's concurrence cannot be accepted as the law.
This Court will not, therefore, rely on Justice Brennan's opinion, as urged by plaintiffs, to look beyond state law and find that Commissioner Blair's actions constitute City policy or custom.
Thus the City is entitled to summary judgment on the alternative ground that plaintiffs have not alleged or argued that the challenged actions were performed pursuant to City policy or custom under the framework adopted by the Praprotnik plurality.
Defendants have also raised various other arguments in support of their motion for summary judgment which the Court does not reach.
V. SECTION 1985(3)
In Count II, plaintiffs claim that defendants engaged in a conspiracy designed to deprive plaintiffs of their First Amendment rights in violation of 42 U.S.C. § 1985(3). Section 1985(3) provides a civil remedy where "two or more persons in any State or Territory conspire or go in disguise on a highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the law . . . ." To state a cause of action pursuant to § 1985(3), a plaintiff must satisfy four elements: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of either protection and immunity under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any privilege of a citizen of the United States." United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 3356, 77 L. Ed. 2d 1049 (1983), citing Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). The Supreme Court has made it clear "that the conspiracy not only must have as its purpose the deprivation of 'equal protection of the laws, or of equal privileges and immunities under the laws,' but also must be motivated by 'some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" United Brotherhood, 463 U.S. at 829, 103 S. Ct. at 3356, citing Griffin, 403 U.S. at 102, 91 S. Ct. at 1798. The instant case requires the Court to address what is perhaps the most debated issue under § 1985(3) -- whether the type of class-based animus asserted in the case falls within the scope of § 1985(3).
As is clear from the above quote, Griffin held that racially motivated conspiracies are within the scope of § 1985(3), and left open whether conspiracies motivated by other types of discrimination are actionable. In Murphy v. Mt. Carmel High School, 543 F.2d 1189 (7th Cir. 1976), the court held that "a § 1985(3) federal cause of action for injury arising out of a purely private conspiracy to interfere with freedom of expression, without state involvement, is not constitutionally supportable." 543 F.2d at 1192. The court also noted:
[The plaintiff] argues that the conspiracy against him was motivated by animus against the non-union employees of the hospital, and that this sufficiently meets the Griffin requirement of 'class-based, invidiously discriminatory animus.' The class is small and its constituency dependent on circumstances subject to ready change. Its character is quite different from classes based on race, ethnic origin, sex, religion, and political loyalty. Although we do not reach the question, we doubt whether it fulfills the Griffin requirement. We do note, however, that for purposes of § 1985(3), religious groups have constituted a class, Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973), as well as supporters of a political candidate, Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973), and Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971), and debtors seeking relief under the bankruptcy laws, McLellan v. Mississippi Power & Light Co., 526 F.2d 870 (5th Cir. 1976).