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LIMES-MILLER v. CITY OF CHICAGO

September 16, 1991

ONELIA LIMES-MILLER, Plaintiff,
v.
CITY OF CHICAGO and FABIENE ROGERS, individually and in her official capacity, Defendants



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Onelia Limes-Miller ("Limes-Miller") sues the City of Chicago ("City") and Fabiene Rogers ("Rogers") under 42 U.S.C. § 1983 ("Section 1983") for their alleged violations of the Fourteenth Amendment's Equal Protection Clause (Count I) and the First Amendment's Free Speech Clause (Count II), *fn1" and she sues City alone under Section 1983 for its asserted violation of the Fourteenth Amendment's Due Process Clause (Count III) and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-(17)("Title VII"), for its alleged discrimination (Count IV) and retaliatory activity (Count V). Both defendants now move for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, defendants' motion is granted on all counts and this action is dismissed in its entirety.

 In May 1984 Limes-Miller began working for City in the Mayor's Office on Employment and Training ("MET") as a Senior Counselor for MET's Dislocated Worker's Program ("DWP"). During her MET tenure she was DWP's only Hispanic female professional employee. MET oversees and administers federal funds received by City under the Job Training Partnership Act (the "Act"), which provides employment and training opportunities to the economically disadvantaged and the dislocated worker population of Chicago. DWP provides retraining and employment services to workers affected by mass layoffs and plant closings and to long-term-unemployed individuals. Limes-Miller worked in DWP throughout her MET employment.

 Rogers is a black female who started her employment with City in May 1986 as Deputy Director of Supportive Services for MET and then became Deputy Director of Administration in 1988. Next she was promoted to the position of First Deputy Director of MET. In 1987 Rogers supervised the DWP unit for about a month.

 Upgrade

 In 1985 Limes-Miller and Don Crocton ("Crocton"), a black male who was also hired in 1984, were working as DWP Senior Counselors, a position at pay grade 10. During late 1985 and early 1986 MET filled five vacant Counselor positions at pay grade 12 with persons who had not previously been working for City. Limes-Miller applied for an upgrade to Counselor in November 1985. Both she and Crocton were recommended for upgrade in January 1986 and were then upgraded effective in February 1986.

 Promotional Opportunities

 "Acting up" refers to performing duties of a higher position temporarily. Section 12.9 of an Agreement between City and the American Federation of State, County and Municipal Employees (the "Union Contract") generally governed the procedure for acting up appointments (P. Ex. 3B at 22):

 
An employee who is directed to and does perform, or who is held accountable for, substantially all of the duties and responsibilities of a higher -- rated job for more than ten (10) working days shall be paid at the higher rate for all such time, retroactive to the first day of the assignment. The Employer will equitably rotate such assignments on the basis of seniority among the employees at the work location who have the then -- present ability to do the job without further training.

 Section 12.9 went on to provide that employees paid for acting in a higher-rated job "shall be paid as if they had been promoted to the higher-rated job," and the maximum time limit for holding an acting up position was set at 90 days (id.).

 There were three acting up appointments made from Limes-Miller's work division: Arturo Zendejas ("Zendejas"), a Hispanic male appointed in October 1987 to the position of Acting Coordinator of the Sears Transition Center; Phyllis "Nneka" Barnum ("Barnum"), a black female appointed in October 1987 to supervisor of the DWP division that was left at the Kraft Building; and Pearl Rightout ("Rightout"), a black female appointed to take Zendejas' position when he resigned in February 1988. Hispanic female Carmen Torres ("Torres") was originally recommended to take Zendejas' position but turned it down. Among other acting up appointments at MET generally, Carlene Tucker ("Tucker") and Carol Cottrell ("Cottrell"), both black females, were respectively appointed to head MET's personnel functions in the spring and winter of 1988.

 Some years earlier (in 1985) Limes-Miller had applied for a Manpower Planner position. City's Department of Personnel found her unqualified and Fred Burnside ("Burnside"), a black male, was selected for that position in October 1986.

 Transfers

 Limes-Miller requested a transfer in October 1986, and Rogers transferred her to the MET office at 5040 North Clark Street ("Clark Street"). Then in January 1987 Limes-Miller and co-worker Judy Smith, a black female, engaged in an altercation. Shortly afterwards Limes-Miller was transferred to the Kraft Building, a transfer to which she agreed.

 In October 1987 Limes-Miller requested and was granted a transfer to work under Zendejas at the Sears Transition Center. In March 1988 she was transferred to 28 East Jackson Street ("Jackson Street"). Next she asked to be transferred back to the Kraft Building and was transferred there in December 1988.

 In 1989 the entire DWP unit was transferred to the new MET office on North Orleans Street. Limes-Miller worked at that location until her last day at MET in February 1990.

 Duties

 Limes-Miller occasionally performed clerical duties but did not do so after she filed the Complaint in this case in 1988. She also conducted workshops. After a restructuring at the Sears Transition Center, workshops were no longer conducted there. Thereafter Limes-Miller conducted a few workshops elsewhere in 1988.

 Layoff (or Termination)

 In February 1990 Limes-Miller and the other three DWP Counselors -- Barnum, Crocton and Ernest Rogers, a black male -- were given a notice of a layoff due to "lack of work." All three were assertedly laid off *fn3" on February 28, 1990.

 Charges

 In September 1986 Limes-Miller filed a Charge of Discrimination with the Equal Employment Opportunity Commission alleging sex and national origin discrimination. In November 1987 she filed another Charge of Discrimination alleging retaliation. In July 1988 she timely filed her initial complaint in this Court.

 Complaint

 Limes-Miller's First Amended Complaint (the "Complaint") comprises the five counts referred to earlier. They may be summarized this way:

 
COUNT I: Section 1983 claim against both City and Rogers for violation of the Equal Protection Clause, based on several alleged acts:
 
-- promoting blacks at a rate higher than others similarly situated;
 
-- continually denying Limes-Miller promotions as the only professional Hispanic female within DWP;
 
-- unfair job assignments, instructions and derogatory remarks;
 
-- assigning clerical duties to her and not to other Counselors, all of whom were of another sex and national origin;
 
-- transferring her to different locations without notice;
 
-- deliberately excluding her from meetings;
 
-- cancelling her workshops;
 
-- assigning black employees to more favorable jobs.
 
COUNT II: Section 1983 claim against both City and Rogers for violation of the Free Speech Clause because, after she had complained both formally and informally of employment discrimination against Hispanics and females, discrimination in service delivery against Hispanic residents of Chicago and unhealthful working conditions, her free speech was assertedly chilled by:
 
-- constant changing of her job duties and locations and assignment of clerical functions;
 
-- threatening her with disciplinary action;
 
-- creating documents to place in her file and build a record against her;
 
-- denying her access to her personnel file for one month;
 
-- assigning her to work locations that exacerbated her lung condition and repeatedly questioning the existence of such a condition;
 
-- terminating her under false pretense of lack of work;
 
-- inhibiting her from obtaining alternative employment.
 
COUNT III: Section 1983 claim against City for violation of the Due Process Clause in that she was terminated -- not laid off -- and was denied her right to a pre-termination or post-termination hearing.
 
COUNT IV: Title VII claim against City for discriminating against her on the basis of sex and national origin based upon the acts listed in Count I and also City's having:
 
-- failed to interview or select her for any of five openings in the position of Counselor for which she had applied -- all were filled by males, only one of whom was Hispanic;
 
-- reclassified her as Counselor without explanation and without retroactive pay increase.
 
COUNT V: Title VII claim against City for retaliation in various forms:
 
-- assigning her clerical duties;
 
-- reassigning her to different work locations, often without necessary equipment;
 
-- excluding her from meetings;
 
-- cancelling her workshops;
 
-- threatening her with disciplinary action ...

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