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HERHOLD v. CITY OF CHICAGO

September 28, 1989

CAROL HERHOLD and LAWRENCE HERHOLD, Plaintiffs,
v.
CITY OF CHICAGO, CHICAGO FIREFIGHTERS LOCAL 2, and the RETIREMENT BOARD OF THE FIREMAN'S ANNUITY AND BENEFIT FUND OF CHICAGO, 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 case is brought pursuant to 42 U.S.C. § 1983 and § 1985(3) challenging employment and benefits actions taken by defendants in alleged retaliation for plaintiffs' exercise of first amendment rights. Pending are motions for summary judgment brought by the defendants, the City of Chicago ("City"), the Chicago Fire Fighters Union Local No. 2 ("Union") and the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago ("Board"). For the reasons described below, defendants' motions are granted.

 II. FACTS *fn1"

 On July 14, 1981, Carol and other female paramedics filed a charge with the EEOC alleging that the CFD discriminated against women in the promotion of paramedics. (City 12(e) para. 11; Board 12(e) para. 3; Plaintiffs 12(e) para. 4.) On November 13, 1981, Carol filed another charge with the EEOC, accusing the Union of complicity in sex discrimination in CFD promotions. (Union 12(e) para. 12; Board 12(e) para. 2.) The EEOC found no reasonable cause to believe that these allegations were true and issued right to sue letters in August, 1982. (City 12(e) para. 11; Union 12(e) para. 12; Board 12(e) paras. 2-3.) Carol never followed up by filing sex discrimination lawsuits.

 On January 29, 1982, Carol and a male paramedic filed a lawsuit against the City in the Circuit Court of Cook County, Illinois, challenging CFD paramedic promotion procedures and alleging that the CFD did not adhere to its own procedural guidelines concerning promotions. (City 12(e) para. 13; Board 12(e) para. 1; Plaintiffs 12(e) para. 12.) The Union intervened as a defendant. (Union 12(e) para. 13.) In light of Carol's heavy involvement in soliciting support for the lawsuit from other paramedics, her supervisors became concerned that she could not objectively investigate and evaluate IAD complaints against those paramedics. (City 12(e) paras. 21, 22.) In early February, 1982, Carol was first notified that she would be transferred out of IAD if she continued to pursue the promotion lawsuit. (City 12(e) para. 19.) Her supervisors told her that she could not simultaneously work as an IAD investigator and pursue the promotion lawsuit. Plaintiffs allege that Carol was continually told that if she did not drop the lawsuit, she would lose her job. (Plaintiffs 12(e) para. 18.) During the pendency of the lawsuit, she was offered a promotion which she declined. (Plaintiffs 12(e) para. 20; City 12(e) para. 18.) The plaintiffs eventually voluntarily dismissed their lawsuit. (Carol Dep. at 526; see also City 12(e) para. 17.)

 In May, 1982, Carol was transferred from IAD to an ambulance that she had requested. (City 12(e) para. 23.) Plaintiffs allege that this transfer came shortly after Carol was told by Deputy Fire Commissioner Charlie Roberts that she would be transferred if she pressed the lawsuit. (Plaintiffs 12(e) para. 19.) The transfer did not result in a decrease in Carol's career service rank, pay or seniority. (City 12(e) para. 25.) Her ambulance duties after the transfer were the same as they had been prior to her transfer to IAD. (City 12(e) para. 26.)

 In October or November, 1982, Carol injured her back while she was on duty, causing her to go on "medical lay-up" for one year. (City 12(e) para. 27; Union 12(e) para. 1; Board 12(e) paras. 4-5; Plaintiffs 12(e) para. 22.) At that time, she was a participant in the Municipal Employees', Officers', and Officials' Annuity and Benefit Fund ("Municipal Fund"). (Union 12(e) para. 2; Board 12(e) para. 6.) During her medical lay-up, she received her full salary pursuant to a collective bargaining agreement between the City and the Union. (City 12(e) para. 27; Union 12(e) para. 3). *fn2" At the end of that one-year period, she retired from CFD. In the spring of 1983, while Carol was on medical lay-up, she was informed that she, Lawrence and several other paramedics would be promoted to the position of Paramedic Officer, retroactive to January 1, 1983. The promotion took place shortly thereafter, and included back pay to January 1, 1983. (City 12(e) para. 28; see also Plaintiffs 12(e) para. 20.)

 At the time of Carol's injury, paramedics were covered by the Municipal Fund. In early 1983, the Union's president, Martin Holland, informed the Union's members that he was working to have paramedics covered by the Firemen's Annuity and Benefit Fund of Chicago (the "Firemen's Fund") instead. (Union 12(e) para. 9.) This change had been a major issue in his campaign for president in May, 1982. (Board 12(e) para. 7.) The Municipal Fund opposed any change in the law which would require a transfer of money to the Firemen's Fund as a result of such a change in coverage. (Union 12(e) para. 10; Board 12(e) para. 10.) A compromise was reached whereby paramedics would be included in the Firemen's Fund as of a date certain; the intent was to bring the paramedics into the Firemen's Fund as if they were new employees. (Union 12(e) para. 10; Board 12(e) para. 14.) On September 24, 1983, the amendment to § 6-106 of the Illinois Pension Code became effective, expanding the definition of "firemen" to include "paramedics" and resulting in the Firemen's Fund covering paramedics employed by the CFD. (Union 12(e) para. 4; Board 12(e) para. 15.) See Ill.Rev.Stat. ch. 108 1/2 § 6-106. The effective date of the amendment was made retroactive to July 1, 1983, and contributions from paramedics were accepted beginning July 1, 1983. (Board 12(e) para. 15; Plaintiffs 12(e) para. 23.)

 On October 26, 1983, Carol applied to the Firemen's Fund for duty disability benefits. (Board 12(e) para. 16; Carol Dep. at 342.) She was the first paramedic ever to apply for such benefits from the Firemen's Fund. (City 12(e) para. 30; Board 12(e) para. 17; Plaintiffs 12(e) para. 25.) Before applying for benefits, she had sought advice from a number of sources as to whether she should apply to the Firemen's Fund or the Municipal Fund. (Board 12(e) para. 18; Plaintiffs 12(e) para. 24.) In November, 1983, Holland expressed his view that Carol was not covered by the Firemen's Fund, and that she should instead apply to the Municipal Fund. (Union 12(e) para. 5; Board 12(e) para. 19.) Carol disregarded this advice because she spoke to others who told her she could recover benefits from the Firemen's Fund (Plaintiff's 12(e) para. 24; Plaintiff's Mem. at 5) and because the benefits from the Firemen's Fund were better (M. Holland Dep. at 31).

 During a hearing on December 14, 1983, the Board advised Carol that it believed it did not have jurisdiction over her application. (Union 12(e) para. 6; Board 12(e) para. 20.) It stated that coverage was determined by the date of her injury, and that she should therefore apply to the Municipal Fund. (Board 12(e) para. 21.) However, because Carol had been a member of two funds at the same time and presented a very unusual request, the Board continued the proceeding to give Carol an opportunity to retain an attorney. (Union 12(e) para. 6; Board 12(e) para. 22.)

 The Union does not provide or subsidize legal representation for Union members in connection with claims before the Firemen's Fund. (Union 12 (e) para. 7.) Carol contacted Union attorney Peter Dowd, who told her to notify the Board that he would represent her, but Dowd subsequently informed her that Martin Holland had told him not to represent her because of a conflict of interest. (Plaintiffs 12(e) para. 25; Carol Dep. at 410.)

 Carol retained attorney Terrance Hilliard to represent her before the Board. (Union 12(e) para. 8; Board 12(e) para. 24.) At the next hearing, on January 18, 1984, the Board accepted by a voice vote the view of its attorney, Maynard Russell, that Carol's accident occurred while she was under the Municipal Fund's jurisdiction and that she would not be covered by the Firemen's Fund unless the Municipal Fund transferred to the Firemen's Fund money that it had accumulated. (Union 12(e) para. 8; Board 12(e) para. 24.) On January 26, 1984, the Board notified Carol in writing of its determination that it lacked jurisdiction over her application. (Union 12(e) para. 8; Board 12(e) para. 24.)

 Pursuant to a settlement agreement resulting from a separate lawsuit, the Board's determination that an injury is duty-related triggers the accrual of furlough pay while a paramedic is on medical lay-up. (City 12(e) para. 31; Plaintiffs 12(e) para. 31.) Carol filed a grievance seeking furlough pay on November 2, 1983. On November 21, 1984, the Board determined that Carol's injury was duty-related, and it gave her furlough pay in June, 1985 (City 12(e) para. 32; Plaintiffs 12(e) para. 31.) The Board members did not know of Carol's lawsuits when they considered her application for furlough pay. (City 12(e) para. 33.)

 In November, 1984, Lawrence suffered a seizure and was hospitalized. He was subsequently diagnosed as having a brain tumor, and he underwent neurosurgery on December 20, 1984. (City 12(e) para. 41; Plaintiffs 12(e) para. 32.) As a result, Lawrence is unable to perform the duties required of a paramedic. (City 12(e) para. 42; Plaintiffs 12(e) para. 32.) The CFD's policy since 1981 has been to offer light duty positions only to employees who have had temporary disabilities and who could eventually return to full and unrestricted duty after recuperation. (City 12(e) para. 40.) None of Lawrence's doctors has indicated that Lawrence will ever be able to perform the duties required of a paramedic. (City 12(e) para. 44.) The CFD denied a request by Lawrence for a light duty assignment. Lawrence's challenge of that denial is pending before the Illinois Human Rights Commission. (City 12(e) para. 53.)

 On November 20, 1985, Lawrence applied to the Board for ordinary disability benefits. (Board 12(e) para. 58.) He was the first paramedic to apply for ordinary disability benefits after paramedics became covered by the Firemen's Fund. (Board 12(e) para. 69.) On December 18, 1985, the Board voted to award him the benefits. (Board 12(e) para. 59.) It calculated his benefits based on the amount of time he had been a member of the Firemen's Fund. (Board 12(e) para. 62; Plaintiffs 12(e) para. 34.) On January 28, 1986, Lawrence filed an action for administrative review of the Board's decision in the Circuit Court of Cook County. (Board 12 (e) para. 63.) On December 12, 1986, the Circuit Court ordered the Board to calculate his benefits based on his entire time of service as a paramedic. (Board 12(e) para. 63; Plaintiffs 12(e) para. 35.) This ruling was affirmed by the Appellate Court and by the Illinois Supreme Court. (Board 12(e) paras. 64-66; Plaintiffs 12(e) paras. 35-36. See Herhold v. Retirement Board, 156 Ill. App. 3d 454, 509 N.E.2d 464, 108 Ill. Dec. 768 (1st Dist.), aff'd, Herhold v. Retirement Board, 118 Ill. 2d 436, 515 N.E.2d 1240, 113 Ill. Dec. 933 (1987).)

 On December 31, 1985, the Board sent Lawrence and all other beneficiaries of ordinary disability payments a letter which stated in part:

 
Under provisions of the Internal Revenue Code the ordinary disability benefits granted you from this Fund, beginning November 29, 1985, are considered to be amounts received in lieu of salary and exempt under the same conditions which apply to "sick pay".

 (Board 12(e) paras. 71, 73; Plaintiffs 12(e) para. 37.) The letter was signed by Norman Holland, the Board's Secretary and Martin Holland's brother. Plaintiffs contend that they discovered a year later that the letter was erroneous. (Plaintiffs 12(e) para. 37.)

 On September 18, 1986, Norman Holland notified plaintiffs by letter that their appointment for their annual re-examination by the Board's doctor was scheduled for October 15, 1986. (Board 12(e) para. 75.) On October 15, 1986, a letter signed by Holland was hand-delivered to plaintiffs informing them that the appointment was rescheduled for October 29, 1986. (Board 12(e) para. 76.)

 Plaintiffs filed this lawsuit on March 18, 1987. Count I of their second amended complaint alleges that plaintiffs' rights under the First Amendment were violated when the following actions were taken by "one or more of the defendants" in retaliation against plaintiffs for Carol's pursuit of lawsuits in the Circuit Court and her charges before the EEOC:

 
(1) the transfer and "effective demotion" of Carol in May, 1982;
 
(2) the refusal to grant furlough pay to Carol after the expiration of her sick leave;
 
(3) the initial refusal to promote Carol and Lawrence and the initial refusal to give them back pay;
 
(4) the refusal by the Union to allow its attorney to represent Carol in her claim against the Firemen's Fund;
 
(5) the refusal to pay in a timely manner the back benefits due from the Firemen's Fund after the payment was ordered by the Illinois Appellate Court, and the Board's repeated miscalculation and delay of payment of interest due on the back payments;
 
(6) the City's denial of Lawrence's request for light duty;
 
(7) the Union's refusal to arbitrate a grievance filed by Lawrence to contest the denial of light duty;
 
(8) the Board's refusal to pay ordinary disability benefits to Lawrence based on his total time of service with the CFD; and
 
(9) the Board's declaration that Lawrence's disability compensation for 1986 is taxable income, contrary to IRS regulations and contrary to its statement to ...

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