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March 22, 1990

PONTARELLI LIMOUSINE, INC., et al., Plaintiffs,
CITY OF CHICAGO, et al., Defendants

The opinion of the court was delivered by: DUFF


 On October 2, 1989, a jury reached a verdict against the City of Chicago and in favor of the ten plaintiffs in this suit, which the court described in Pontarelli Limousine, Inc. v. City of Chicago, 704 F. Supp. 1503 (N.D.Ill. 1989). The City has moved for judgment notwithstanding that verdict pursuant to Rule 50(b), Fed.R.Civ.Pro., and renews in it the grounds which it set forth in two previous motions for directed verdict under Rule 50(a). Pursuant to Rule 59(e), the City also has moved to amend the judgment by reducing the jury's awards to three of the plaintiffs, Metropolitan Limousine, Inc., Carey of Chicago, and Pontarelli Limousine, Inc. For their part, the plaintiffs have moved for a new trial under Rule 59(a) for a new trial on damages issues, and for attorneys fees and costs.

 The parties agree that in considering the City's motion for judgment notwithstanding the verdict, this court must "look at the evidence in a light which is most favorable" to the plaintiffs, "and determine whether the evidence, combined with all reasonable inferences which may be derived therefrom, supports the jury's verdict. The question is 'not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'" David Copperfield's Disappearing, Inc., v. Haddon Advertising Agency, Inc., 897 F.2d 288, 291 (7th Cir. 1990) (citations omitted; emphasis in original), quoting Gunning v. Cooley, 281 U.S. 90, 94, 74 L. Ed. 720, 50 S. Ct. 231 (1930). See also Goldman v. Fadell, 844 F.2d 1297, 1300 (7th Cir. 1988).

 As explained in this court's earlier opinion, the plaintiffs sued the City under 42 U.S.C. § 1983 (1982). At trial they contended that the City denied them equal protection of the laws in violation of the Fourteenth Amendment to the Constitution by preventing them from using livery dispatch booths at O'Hare International Airport. In order to recover from the City under § 1983, the plaintiffs had to prove at trial "that the City, through its officials in positions of policy-making authority, consciously administered the livery dispatch system so as to discriminate against them." Pontarelli, 704 F. Supp. at 1517.

 From the evidence presented at trial, a jury could not reasonably conclude that the plaintiffs proved two aspects of their case. For this reason, the court must enter judgment in favor of the City and against the plaintiffs. First, the plaintiffs presented no evidence from which a jury reasonably could infer that the City consciously discriminated against the plaintiffs in administering its livery dispatch system. The plaintiffs conceded that the City had no official policy condoning discrimination against them. They thus bore the burden of proving that City officials knew of and acquiesced in a long-standing practice or custom of discrimination against the plaintiffs. To carry this burden, the plaintiffs had to demonstrate two things. They first had to identify which City official had "final policymaking authority" over the livery booths. This question is one of law. Second, they had to prove that this official acquiesced in discrimination against the plaintiffs, so as to make discrimination the "standard operating procedure" of the City. This question is one of fact. See Jett v. Dallas Independent School Dist., 491 U.S. 701, 105 L. Ed. 2d 598, 109 S. Ct. 2702, 2723, (1989).

 As a matter of law, and according to the stipulations of the parties, the City official with authority over the O'Hare livery booths was the City's Commissioner of Aviation. The plaintiffs put forth no evidence, however, from which a jury reasonably could have concluded that the Commissioner acquiesced in discriminatory exclusions of the plaintiffs from the booths. The Commissioner first learned that some City-licensed liveries which served Chicago were using the booths in early 1979. The commissioner at the time, J. Patrick Dunne, responded by issuing a letter condemning the practice and directing the police to halt all City-licensed liveries from dispatching from the booths.

 The plaintiffs submit that notwithstanding Dunne's instructions, an administrative assistant in the Aviation Department, Thomas Jaconetty, learned of police reluctance to enforce Dunne's policy in February 1979. Even if Dunne himself heard of this reluctance -- there is no evidence that he did -- a memorandum written by Jaconetty which describes police reaction to Dunne's directive notes in clear terms that Jaconetty told the police to enforce the law. The jury heard no evidence from which it could reasonably infer that Dunne understood that discrimination continued notwithstanding his directive and Jaconetty's discussions with the police, or that Dunne acquiesced in discrimination. *fn1"

 Thus, as of Dunne's letter in 1979, the City's policy -- both officially and by way of customs known to the Commissioner -- was against the practices which Dunne condemned in his letter. Dunne's successor, Thomas Kapsalis, did not amend this policy until 1982. The jury heard no evidence that Kapsalis knew of practices contrary to Dunne's order prior to becoming Commissioner in September 1980 until January 1982. In January, the Circuit Court of Cook County ordered changes in livery operations at O'Hare. In response to this order, Commissioner Kapsalis directed that limousine companies serving Chicago -- he made no distinction between those licensed by the City and those licensed by suburban municipalities -- could share the O'Hare dispatch booths.

 On January 20, 1982, Robert Cusumano, the First Deputy Commissioner of Aviation, and William Corbett, Cusumano's subordinate, spoke at a meeting of livery operators, shortly after Kapsalis had changed the City's policies about the O'Hare booths. It is undisputed that Cusumano told everyone present that livery operators would be treated equally, consistent with Commissioner Kapsalis's policy. Cusumano then left the meeting, leaving Corbett -- a person who, by law, could not make City policies over the O'Hare booths. Corbett described the City's "policy" differently from Cusumano. Corbett told the livery operators that only the plaintiffs who had prevailed in the Circuit Court could use the booths. All other City-licensed liveries who served Chicago, Corbett told the group, would have to sue to gain entry to the booths.

 Corbett's statement is the only evidence that a City official believed there was a distinction between City- and suburban-licensed liveries who served Chicago for purposes of operating out of the O'Hare dispatch booths. This official had no authority to make City policy over the booths. The plaintiffs introduced no evidence from which a jury reasonably could infer that the one official who had authority to make policies for the booths, Commissioner Kapsalis, knew of and acquiesced in Corbett's characterization of City policy as of and after January 20, 1982, until the City halted booth operations in 1986.

 The plaintiffs thus have failed to introduce evidence from which any jury reasonably could conclude that the City's policy was to discriminate against the plaintiffs. Even if the plaintiffs had introduced sufficient evidence on this point, however, they still would have failed to prove that this discrimination violated the plaintiffs' constitutional right to equal protection of the laws. As this court stated in its prior opinion, the court starts from the presumption that the City's regulations are valid, and the court must sustain them if the City's distinctions among livery operators are rationally related to the City's legitimate interests. See Pontarelli, 704 F. Supp. at 1515. If the court can hypothesize plausible reasons for a regulation which are within the legitimate goals of a government, "nothing else is required to validate the governmental classification. . . ." Evans v. City of Chicago, 873 F.2d 1007, 1016 (7th Cir. 1989).

 The plaintiffs originally argued that the City made numerous distinctions among livery operators which violated the law. The only one of these classifications left for trial was the City's alleged distinction after 1977 between suburban-licensed liveries which served Chicago and City-licensed liveries which served the same area. *fn2" See Pontarelli, 704 F. Supp. at 1517. The uncontradicted evidence from trial indicates that the distinction is the result of other, lawful classifications among livery drivers. As the evidence at trial showed and as this court has previously held, the City legitimately could distinguish between suburban and City-licensed liveries. The City learned from a study commissioned by it in 1973 that livery companies serving the suburbs (which, as a result of the City's licensing practices, could not be City-licensed companies, see id.) were responsible in large part for livery-related traffic congestion and illegal solicitation at O'Hare. In keeping with its legitimate interests in reducing this congestion and solicitation, the City rationally could have ordered the suburban services to operate out of booths.

 The booths themselves were a problem. Some in the City regarded them as slovenly and undesirable. Livery companies hawked their services to arriving passengers, sometimes in ways that were offensive. Operators also fought among themselves for business. In keeping with legitimate aesthetic concerns, the City rationally could have chosen to limit booth operations to the extent necessary to solve its traffic and solicitation problems. The City could have felt that City-licensed companies did not contribute substantially to the traffic and solicitation problems, and that the trouble accompanying booths for City-licensed companies would outweigh any gains in smoother traffic flow. City-licensed companies also were free to arrange with suburban liveries or join two suburban-dominated trade associations, the Northern Illinois Livery Owners ...

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