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Johnson v. City of Fort Wayne

July 31, 1996






Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 94 C 116 William C. Lee, Judge.

Before FLAUM, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.



Following his demotion, Roy Johnson, an African-American firefighter employed by the Fort Wayne Fire Department, commenced this action against the City of Fort Wayne and various municipal officials. Citing his demotion and various other employment actions, the complaint alleges, in ten counts, that the defendants violated his rights under Title VII, 42 U.S.C. sec. 1981, the First Amendment, the substantive and procedural components of the Due Process Clause of the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. The district court granted the City's motion for summary judgment and assessed attorneys' fees against Mr. Johnson and his attorneys, and Mr. Johnson appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court in part, reverse in part and vacate in part.



Roy Johnson, an African-American, has been employed by the Fort Wayne Fire Department ("the Department") since 1975. Mr. Johnson had advanced to the rank of Lieutenant when, on January 1, 1988, he was appointed by Fort Wayne Mayor Paul Helmke to the position of Assistant Fire Chief and assigned the Department's labor relations responsibilities. At the time of Mr. Johnson's appointment to Assistant Chief, the Department's upper level command was comprised of six positions: Fire Chief, Deputy Fire Chief, Assistant Fire Chief (Training), Assistant Chief (Administration), Assistant Chief (Shop), and Assistant Chief (Labor Relations).

Mr. Johnson's difficulties began in January 1992 when Mayor Helmke appointed Payne Brown, who is also an African-American, to the position of Safety Director. The Safety Director acts as a liaison between the Mayor's Office and the Police and Fire Departments. Shortly after appointing Payne Brown to this position, Mayor Helmke ordered his new Safety Director to review the Fire Department's upper level management structure and to determine whether a fiscal savings could be realized through a reorganization. Brown did not complete the review and present a reorganization plan to Mayor Helmke until April 1993. In the interim, however, Mr. Johnson began to experience difficulties with the Department.

In late 1992 or early 1993, Mr. Johnson and Payne Brown had a disagreement concerning the implementation of a random drug-testing policy for the Department. Mr. Johnson opposed implementing such a policy on the ground that random drug testing would violate the firefighters' collective bargaining agreement. Safety Director Brown, who favored random drug testing, considered Mr. Johnson's lack of support to be insubordination. At or around the same time, Mr. Johnson met with the City's EEOC officer to discuss racial discrimination that he claimed to have experienced in the Department and, through his attorney, wrote to Payne Brown on the same subject. Brown responded with a one-sentence letter telling Mr. Johnson to "[g]o ahead and sue." R.30, Ex.CC.

In February 1993, the Common Council of the City of Fort Wayne enacted City Ordinance G-06-93, which reestablished the Mayor's power to remove persons in "upper level policymaking positions" without cause.

On March 24, 1993, a Fort Wayne police captain spotted Mr. Johnson's Fire Department vehicle parked for an extended period of time at the Skyway Tavern in Fort Wayne. Considering it inappropriate for the vehicle to be parked there, the police captain notified Steve Hinton, the Fire Department's "on call" duty chief. Hinton indicated to the police captain that, if Mr. Johnson attempted to drive the vehicle from the Tavern, the police "should probably stop [Mr. Johnson] and . . . see if he had been drinking." R.30, Deposition of Russell P. York, at 18. City Police Chief Neil Moore notified Payne Brown of the situation, and Brown dispatched a firefighter to the scene to retrieve the City vehicle if Johnson were unfit to drive. Brown did not instruct any member of the Police Department how to proceed. Acting on a suggestion made by Police Chief Moore, police officers at the scene made a discrete inquiry to Mr. Johnson about his sobriety level. Mr. Johnson requested and was administered a breathalyzer test, which indicated that he had not consumed a detectable quantity of alcohol.

In April 1993, Safety Director Brown completed his study of the Fire Department's management structure and submitted a reorganization plan. The plan called for the elimination of five positions: Deputy Chief, Assistant Chief (Labor Relations), Assistant Chief (Administration), and two platoon captain positions. The plan also added an Assistant Fire Chief (Combat) position and a civilian position to handle residual duties not absorbed by other members of the Department.

Shortly after being advised by Payne Brown that his position was being eliminated, Mr. Johnson filed a complaint with the EEOC alleging that the Skyway Tavern incident and other exclusionary practices instituted by Brown amounted to harassment on account of his race. Consistent with the reorganization plan, Mr. Johnson was demoted to his prior rank of Lieutenant effective April 30, 1993. Also in April, Fire Chief Robert Barnes agreed, at the request of Mayor Helmke and Safety Director Brown, to resign his position and to return to his former rank of Captain effective June 1, 1993. On May 20, 1993, Fire Chief Barnes received permission to extend the effective date of his resignation to July 6, 1993 and to take vacation time before leaving office. During his vacation, Barnes was permitted to use the Fire Chief's car and was paid at the Fire Chief's grade. Steve Hinton was appointed as the new Fire Chief.

Mr. Johnson took vacation leave from May 3 to July 27. During this vacation, he was paid at Lieutenant grade and was denied the use of a Department vehicle. On May 10, 1993, Mr. Johnson filed a second complaint with the EEOC, alleging that he had been demoted on account of his race and in retaliation for his prior complaints. Upon returning from his vacation, Mr. Johnson applied for the newly created Assistant Chief (Combat) position. Chief Hinton did not interview Mr. Johnson for the position and selected Steve Adams, a white firefighter, to fill the post.

Beginning in August 1993, Mr. Johnson took sick leave for job-related stress; in October, Chief Hinton ordered Mr. Johnson to be evaluated by the City doctor. Mr. Johnson evidently did not comply with this directive; he was brought before a disciplinary committee in December for violating sick leave and for failing to comply with Chief Hinton's order. The charges were dropped when Mr. Johnson signed the necessary release forms. On February 11, 1994, Mr. Johnson filed a complaint with the EEOC alleging that the disciplinary proceedings and the Chief's order amounted to racial harassment and retaliation for his prior complaints. On March 15, 1994, Mr. Johnson filed a complaint with the EEOC alleging that he was not interviewed for the Assistant Chief (Combat) position on account of his race and in retaliation for his prior complaints.

In March 1994, Chief Hinton ordered Mr. Johnson to stay away from fire stations and fire scenes as long as he remained on sick leave. This order was communicated to Mr. Johnson by letter and circulated throughout the Department via memorandum. The parties disagree as to whether the order was issued in response to firefighter complaints about Mr. Johnson's visits, as Chief Hinton contends. Mr. Johnson asserts that no such complaints were made and that his visits were not disruptive. Mr. Johnson then filed a complaint with the EEOC -- his fifth --alleging that Chief Hinton's order was retaliatory in nature. Shortly thereafter, Mr. Johnson returned to work and commenced the present action.

In his complaint, Mr. Johnson relies upon several theories of recovery. The complaint alleges, in ten counts, that the defendants violated his rights under Title VII, 42 U.S.C. sec. 1981, the First Amendment, the substantive and procedural components of the Due Process Clause of the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. With respect to a number of these claims, Mr. Johnson seeks punitive damages against the City of Fort Wayne.



As the district court recognized, the complaint states a number of different theories of recovery, all of which may be characterized as disparate treatment claims. In its order disposing of this case, the district court noted that the lack of clarity in the presentation of the case created serious analytical impediments for the court. Nevertheless, its order carefully attempted to analyze the evidence submitted and to evaluate it in light of the rather cryptic complaint upon which the plaintiff had proceeded. Although we have the duty to evaluate independently the submission of the plaintiff, we have had the benefit of the labors of the district court. We have considered each evidentiary submission of the plaintiff with respect to each of the theories of recovery that can reasonably be said to be stated in the complaint. Considerations of clarity and economy of space counsel against repletion; therefore we simply shall note when a particular submission considered under a particular heading is also germane to another.

At the outset, we are mindful that our evaluation of this case must take place in the context of the procedural context in which it was presented to the district court. We exercise plenary review over a district court's grant of summary judgment. Green v. Shalala, 51 F.3d 96, 99 (7th Cir. 1995). We must evaluate the factual record in the light most favorable to the non-movant and must resolve all inferences in favor of that party. Vitug v. Multi-state Tax Comm'n, No. 94-3092, 1996 WL 379816 (7th Cir. July 8, 1996). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The initial burden is on the moving party to identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the nonmoving party bears the burden of proof on an issue, he must then go beyond the pleadings and affirmatively demonstrate a genuine issue of material fact for trial. Id. at 324. That burden is not carried when the party fails to demonstrate that the record, taken as a whole, could permit a rational finder of fact to rule in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

A. Title VII

1. Disparate Treatment

"Disparate treatment" occurs when an employee is treated less favorably simply because of religion, color, sex, national origin or, as in our case, race. See International Bhd. of Teamsters, 431 U.S. 324, 335 n.15 (1977). To be successful on this type of claim, "proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Id.; see Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1420 (7th Cir. 1986). The complaint alleges disparate treatment in a variety of contexts.

Title VII makes it "an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [or] color." 42 U.S.C. sec. 2000e-2(a)(1). Because Mr. Johnson has not offered any direct evidence of illegal motive, we analyze his claims, as did the district court, under the familiar three-step model of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); e.g., EEOC v. Our Lady of the Resurrection Medical Ctr., 77 F.3d 145, 148-49 (7th Cir. 1996).

In order to establish a prima facie case under McDonnell Douglas, Mr. Johnson must prove: (1) that he belongs to a protected group; (2) that he performed the job satisfactorily; (3) that he was subjected to an adverse employment action; and (4) that similarly situated employees received more favorable treatment. See Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir. 1996); Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994); King v. General Elec. Co., 960 F.2d 617, 621 (7th Cir. 1992). Once established, this prima facie case creates a rebuttable presumption of discrimination, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its allegedly biased employment decision. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 667 (7th Cir. 1995); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994).

If the employer meets its burden of production, the presumption dissolves. St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2747 (1993). To prevail, the employee then must demonstrate that the nondiscriminatory explanation of the employer is pretextual. Id.; see Collier v. Budd Co., 66 F.3d 886, 893 & n.11; see also Hill, 67 F.3d at 667-68; Perdomo v. Browner, 67 F.3d 140, 144-45 (7th Cir. 1995). "Pretext . . . means a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). An employee may establish pretext indirectly by proving one of the following: "(1) Defendant's explanation had no basis in fact, or (2) the explanation was not the 'real' reason, or (3) . . . the reason stated was insufficient to warrant the [adverse job action]." Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133 (7th Cir. 1994); see Hill, 67 F.3d at 669. In trying to establish that an employer's explanation is pretextual, an employee must "focus on the specific reasons advanced by the defendant[s]." Hughes, 20 F.3d at 747.

Count I of Mr. Johnson's First Amended Complaint alleges six separate instances of racial discrimination. We shall examine these allegations in chronological order: (1) Payne Brown's directive that Mr. Johnson be excluded from certain policy meetings of the Fire Department; (2) the incident at the Skyway Tavern; (3) the Department's refusal to permit him the use of a Department vehicle while he was on vacation and to provide him with vacation pay at the Assistant Chief grade; (4) Chief Hinton's order that he stay away from fire stations and fire scenes while on sick leave; (5) Chief Hinton's repeated orders that he be evaluated by the City doctor; and (6) his demotion to his prior rank of Lieutenant.

Viewing each of the enumerated instances of mistreatment in isolation, we may read his complaint to allege that he was singled out for less favorable treatment on account of his race. We may also view these instances in the aggregate and read Mr. Johnson's complaint as asserting that the sum of the defendants' discriminatory conduct created a racially hostile work environment. Title VII encompasses both types of claims; its proscriptions are violated either if Mr. Johnson is able to demonstrate that he was treated less favorably than other employees on the basis of his race, see International Bhd. of Teamsters, 431 U.S. at 335 n.11, or if discrimination based upon Mr. Johnson's race created a hostile work environment, e.g., Daniels v. Essex Group, Inc., 937 F.2d 1264, 1270 (7th Cir. 1991). Accordingly, we evaluate Mr. Johnson's allegations under each of these theories of recovery.

a. Exclusion From Meetings

In his April 19, 1993 complaint to the EEOC, Mr. Johnson charges that "I have not been allowed to assume the full responsibilities and assignments of my position title" and that "[s]ome decisions have been completely taken away from me." R.16, First Am. Compl., Ex.A, at 1. Although Mr. Johnson's complaint does not provide any more specific information, the affidavit of former Fire Chief Robert Barnes explains:

There also were meetings in 1992, after Payne Brown became Safety Director, with all of the Assistant Chiefs, except Johnson, and the Chief, and sometimes the City Attorney attended, to discuss goals, policies and needs of the Fire Department. . . . Roy Johnson was not allowed to participate in these meetings . . . . [Payne Brown] said "His presence is not needed" [and] "[w]ell, he's going to be eliminated." R.30, Affidavit of Robert Barnes, para. 19.

Jill Furge, a former executive secretary to the Fire Chief, corroborates Mr. Johnson's exclusion from these upper level meetings in her affidavit:

The Assistant Chiefs would exclude Roy Johnson from regular meetings held that [sic] the Chief and his Assistant Chiefs in the Chief's office. . . . [Roy Johnson] was the only Black Assistant Chief. All the rest were White, and Roy Johnson was the only one excluded from the regular meetings. I never saw any Assistant Chief other than Roy Johnson excluded from the meetings. R.30, Affidavit of Jill Furge, para. 9.

As part of his prima facie case of disparate treatment, Mr. Johnson must establish that he suffered a materially adverse change in the "terms, conditions, or privileges of employment." 42 U.S.C. sec. 2000e-2. Our cases have noted that, although a materially adverse change in employment conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities, such a change might be indicated by "significantly diminished material responsibilities," Crady v. Liberty Nat'l Bank and Trust Company of Indiana, 993 F.2d 132 (7th Cir. 1993), or by an employer's functional isolation of an employee. See Collins v. State of Illinois, 830 F.2d 692, 703-04 (7th Cir. 1987) (finding an adverse employment action where a library employee had been transferred to a new department but her supervisors were unsure of her new responsibilities, she was largely relegated to reference rather than consulting work, and she had lost her office and telephone) (citing cases); cf. Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir. 1994) (noting, in the context of an action commenced under 42 U.S.C. sec. 1983, that an adverse employment action can result from a materially qualitative change in job responsibilities). Here, we are satisfied that Payne Brown's decision to exclude Mr. Johnson, one of the four Assistant Fire Chiefs in the Department's upper level command, presents, on this summary judgment record, a genuine issue of triable fact as to whether the exclusion is a "materially adverse employment action." Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 273 (7th Cir. 1996). Fairly read, the record suggests that this exclusion deprived Mr. Johnson of the ability to perform the policy making role essential to the position of an Assistant Chief and, from a functional standpoint, relegated him to an isolation that precluded his fulfilling the responsibilities of the office to which he had been appointed.

We do not think that, on the record before us, summary judgment is appropriate with respect to this claim. The reason given for his exclusion from the early 1992 meetings was that the impending reorganization would eliminate Mr. Johnson from the upper echelon of policy makers in the Department. However, his exclusion from the meetings began, according to former Chief Barnes, almost a full year before the announcement of the reorganization plan in April 1993. At the time that Mr. Johnson was excluded from the meetings, the reorganization study was still in progress, and the City did not have the authority, under its own ordinance, to demote Mr. Johnson to his prior ...

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