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January 26, 1993

FRANK J. CHULAY, as Mayor of the Village of Lincolnwood and Individually; and THE VILLAGE OF LINCOLNWOOD, Defendants.

The opinion of the court was delivered by: CHARLES R. NORGLE, SR.


 Before the court are the parties' cross-motions for summary judgment. For reasons detailed below, the court grants the defendants' motion and denies the plaintiff's motion.


 Plaintiff Arthur P. Diamond ("Diamond"), former Superintendent of Public Works and Acting Director of Public Works for the Village of Lincolnwood ("Lincolnwood"), brought suit against Lincolnwood and its mayor, Frank J. Chulay ("Chulay"), alleging six claims. Because Counts III and IV were dismissed, the present summary judgment motions only address Counts I, II, V, and VI of Diamond's amended complaint. Count I alleges an action under 42 U.S.C. § 1983 against Lincolnwood and Chulay in both his official capacity as mayor and individual capacity (where appropriate, the court will refer collectively to the "defendants"), declaring that defendants terminated Diamond in violation of his rights under the First and Fourteenth Amendments because the firing was politically motivated. Diamond alleges that he was fired in retaliation for telling Chulay that he would not support Chulay in his reelection bid and for remaining nonpartisan in the election. Count II alleges a violation of 42 U.S.C. § 1983 as well. Diamond alleges he was fired from public employment for speaking on matters of public concern in violation of his rights under the First and Fourteenth Amendments. Count V raises a state law claim for intentional interference with prospective economic advantage, claiming Chulay purposely, willfully, intentionally, maliciously, and unjustifiably interfered with Diamond's legitimate expectation of continued employment with Lincolnwood. Last, Count VI is a suit to recover overtime wages and benefits allegedly due and owing.

 The facts supporting the allegations are as follows. *fn1" Chulay was elected mayor of Lincolnwood in April of 1985. Chulay appointed Diamond Superintendent of Public Works for Lincolnwood in August 1986, and then appointed him Acting Director of Public Works, accompanied by a salary increase, in January 1987 when the previous Director of Public Works retired. Diamond assumed the position of Acting Director of Public Works and performed many of the duties accompanying the position of Director of Public Works. He thus performed in a dual role as Superintendent/Director of Public Works for two years and three months. Chulay was reelected in April of 1989 in a close race. Chulay discharged Diamond from employment as Superintendent and Acting Director of Public Works in April 1989 soon after his reelection.

 During Chulay's reelection bid in 1989, Diamond remained nonpartisan and publicly supported neither candidate. Diamond claims that Chulay approached him at one time and sought Diamond's support for Chulay's reelection, at which time Diamond claims he told Chulay that he would support the position of mayor, but would not endorse any particular candidate. Furthermore, during his tenure as Superintendent/Director of Public Works, Diamond made various comments regarding the manner in which projects were handled under Chulay's administration. He commented on matters relating to the inefficiency with which certain projects were being handled and also questioned whether some projects were satisfying certain local and state environmental requirements. Chulay considered the projects important to Lincolnwood, and even highlighted these projects during his reelection bid.

 The evidence is controverted whether Diamond's performance was ever criticized or whether Diamond was ever reprimanded, disciplined, or warned while employed with Lincolnwood. Diamond has acknowledged problems within the Public Works Department he headed. The sole reason given for Diamond's termination at the time was "poor snow removal," yet Diamond claims Chulay has now advanced "new-found" reasons to justify the termination. All this, Diamond asserts, demonstrates that the termination was either political or based on Diamond's comments concerning the various Lincolnwood projects. Furthermore, Diamond claims that this evidence demonstrates that Chulay's self-interests motivated him to interfere with Diamond's employment. In September 1992, Diamond and the defendants each filed cross-motions for summary judgment.


 Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The nonmoving party is required to go beyond the pleadings with affidavits, depositions, answers to interrogatories, and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). All reasonable inferences are drawn in favor of the party opposing the motion. Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). Nevertheless, a dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Moreover, a disputed fact is material, and thus would properly preclude summary judgment, only if it might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992).

  As to Diamond's § 1983 claims, Lincolnwood, and Chulay in his official capacity, claim there is no evidence of a policy or custom such as to impose liability. Furthermore, the defendants collectively claim Diamond's position is exempt from the prohibition against patronage terminations and therefore there can be no liability under § 1983 whatsoever. Also in regard to § 1983, the defendants assert that Diamond's speech is unprotected or, alternatively, that there is no evidence that the termination was motivated by Diamond's speech. Additionally, Chulay claims he is not liable in his individual capacity because he possesses qualified immunity from any liability. *fn2" On the other claims, Chulay asserts that he possesses a qualified privilege under Illinois law to fire Diamond and that Diamond has not demonstrated that Chulay was motivated by malice to support his claim for interference with prospective economic interest. Last, defendants assert that Diamond was exempt from the Federal Labor Standards Act's overtime requirements and that Lincolnwood did not have any policy for employees of Diamond's position in regard to the other claimed benefits. The court will address each issue in turn.

 I. Municipal Liability and Liability of Chulay in Official Capacity under § 1983:

 As to Counts I and II, Lincolnwood and Chulay in his official capacity as mayor argue that Diamond failed to present sufficient evidence of an official policy or custom sanctioning or directing any alleged unconstitutional acts, and thus they cannot be liable under § 1983. The court finds that summary judgment in favor of Lincolnwood and Chulay in his official capacity is not warranted on this ground.

 Municipalities and their officials are amenable to suit under § 1983 for monetary, declarative, and injunctive relief. Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 n.55 (1978). For an action against an official in his official capacity, and thus against the entity of which the official is the agent, the plaintiff must demonstrate that the entity's policy or custom played a part in the violation of federal law. Hafer v. Melo, 116 L. Ed. 2d 301, 112 S. Ct. 358, 361-62 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) (citing Monell, 436 U.S. at 690 n.55, 694)). Although the existence of a single incident of unconstitutional conduct will not normally suffice to establish policy or custom, see Hossman v. Blunk, 784 F.2d 793, 796-97 (7th Cir. 1986); Strauss v. City of Chicago, 760 F.2d 765, 767, 769 (7th Cir. 1985), a city's policy can be established if the decisionmaker who possessed final authority over the firing decision, and who authorized the termination of the public employee, is a city policymaker. Matlock v. Barnes, 932 F.2d 658, 666 n.4 (7th Cir.), cert. denied, 116 L. Ed. 2d 247, 112 S. Ct. 304 (1991); see also Fiorenzo v. Nolan, 965 F.2d 348, 350-51 (7th Cir. 1992) (liability in official capacity is permitted if one with final policymaking authority officially ordered, sanctioned, or approved decision).

 Diamond has produced evidence that Lincolnwood delegated to Chulay control over the hiring and firing of his officers, including the Superintendent of Public Works and Director of Public Works. Chulay possessed the authority, and made the decision, with the only proviso that he inform the Village Trustees of the reasons for a decision to discharge an employee. Because Chulay is the official possessing final authority over the discharge decision, that he terminated Diamond is sufficient to establish policy or custom. As a result, Chulay's decision to terminate Diamond for political reasons was "officially adopted and promulgated by [Lincolnwood's] officers." See Monell, 436 U.S. at 690; see also Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986) (municipal officials possessing final policymaking authority may, by a single decision, subject the government to liability under § 1983). Diamond could thus recover against Chulay in his official capacity and against Lincolnwood if Diamond's termination constitutes a constitutional violation.

 II. Political Discharge under § 1983 (Count I):

 As to Count I, the court finds that summary judgment in favor of Lincolnwood and Chulay (in both official and individual capacities) is appropriate because Diamond's position is exempt from the prohibition against politically motivated terminations, thus preventing liability for such a termination. Further, even if the position was not an exempt position, summary judgment in favor of Chulay ...

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