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HARDING v. ROSEWELL

September 29, 1998

MICHAEL J. HARDING, Plaintiff,
v.
EDWARD J. ROSEWELL, COOK COUNTY TREASURER, JAMES A. FUGLSANG, ALAN H. KWIT, RICHARD J. OWENS, RODNEY M. ZOBJECK, and the COUNTY OF COOK, ILLINOIS, Defendants.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 Michael Harding filed a five count complaint against the defendants alleging violations of 42 U.S.C. § 1983, retaliatory harassment and discharge, slander, and breach of contract. The defendants moved for summary judgment on all counts. The parties also filed related motions. The defendants moved to strike certain paragraphs of Mr. Harding's 12(N) Statement, for leave to file their answer nunc pro tunc to August 11, 1997, and to amend their answer. Mr. Harding moved to strike document number 904-912 and to bar defendants from using document number 890-903. For the reasons set forth below, the defendants' motion for summary judgment is granted in part and denied in part, their motion to strike 12(N) paragraphs is denied, their motion to file their answer nunc pro tunc is granted, and their motion to amend their answer is denied. Mr. Harding's motion to strike document number 904-912 is denied as moot and his motion to bar the use of document number 890-903 is granted.

 Background

 Mr. Harding returned to the Cook County Treasurer's Office ("Treasurer's Office") in 1993 as an Assistant Treasurer reporting to Alan Kwit. *fn1" (12(N) St. P 4). Edward Rosewell is the Treasurer of Cook County ("Mr. Rosewell" or "Treasurer"), James Fuglsang is the Chief Deputy Treasurer, Mr. Kwit is a financial control officer for the Treasurer's Office, Richard Owens was an assistant general counsel to the Treasurer, and Rodney Zobjeck was an employee of the Treasurer's Office. (12(M) St. PP 3-7).

 Most of the facts surrounding this case are contested. *fn2" Mr. Harding says that in mid-1993, he discovered that employees in the Treasurer's Office, specifically Mr. Kwit and Kelly Napientek, were falsifying their time records. (12(N) St. P 9). He states that in late 1993 and thereafter, he brought this information to the attention of the Treasurer and requested an investigation. (Id. P 11). He also states that he informed Mr. Fuglsang, Mr. Kwit, and Mr. Owens of the falsification. (Id. PP 13, 17, 27). He alleges that he was harassed and then terminated in retaliation for this speech.

 Mr. Harding states that on February 8, 1995 he slipped and fell in the County Building while at work. (Id. P 66). It is undisputed that he did not work from February 9, 1995 until April 24, 1995, (Id. P 67), and that on April 10, 1995, he filed a workers' compensation claim with the Illinois Industrial Commission, (12(M) St. P 32). He alleges that he was harassed and terminated because he filed the workers' compensation claim and that defamatory statements were made to the effect that he had filed a false claim.

 In the first week of September, 1995, Mr. Harding states that he began cooperating with the Federal Bureau of Investigation ("FBI") in its investigation of the Treasurer's Office. (12(N) St. P 81). Mr. Harding alleges that he was harassed and fired in retaliation for his cooperation.

 Mr. Harding was fired on October 23, 1995. (12(M) St. P 21). He subsequently filed a claim for unemployment insurance with the Illinois Department of Employment Security ("IDES"). (Id. PP 30-31; 12(N) St. P 190). He claims that the defendants failed to pay him for compensatory time accrued prior to his termination and improperly protested his unemployment insurance claim on the grounds of misconduct.

 Summary Judgment Standard

 Summary judgment should be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In determining whether summary judgment is appropriate, the court must consider the facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This standard is the same for all cases including employment discrimination cases. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997).

 Count I

 To bring a § 1983 claim, Mr. Harding must establish that: (1) he held a constitutionally protected right; (2) he was deprived of this right in violation of the Constitution; (3) the defendants intentionally caused this deprivation; and (4) the defendants acted under color of state law. McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993). Mr. Harding alleges that Cook County and Mr. Rosewell, Mr. Fuglsang, Mr. Kwit, and Mr. Owens, in their individual and official capacities, *fn3" violated his procedural due process and first amendment rights. *fn4"

 Before reaching the merits of this count, I must address whether Cook County, Mr. Kwit, and Mr. Owens can be liable for any deprivation of Mr. Harding's due process and first amendment rights. *fn5" Cook County may be held liable for violating the civil rights of a person under § 1983 in three instances: (1) it has an express policy that, when enforced, causes a constitutional violation; (2) there is a widespread practice that, although not expressly authorized by the County, is so permanent and well settled as to constitute a custom or usage with the force of law; or (3) the alleged constitutional injury is caused by a person with final policymaking authority. Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994). Mr. Harding argues that in the defendants' answer to the initial complaint, they admitted that Cook County had a policy of granting authority to Mr. Rosewell to make personnel decisions related to employees in the Treasurer's Office. He argues that Cook County is liable for Mr. Rosewell's actions pursuant to that policy.

 Since the defendants' initial answer, Mr. Harding filed an amended complaint and the defendants filed an amended answer denying any such policy. Regardless of the defendants' admission or denial of any policy, the Treasurer is authorized by statute, not by delegation of Cook County's authority, to make personnel decisions for the Treasurer's Office. See, e.g., 55 ILCS 5/3-10005 ("[The treasurer] shall appoint his deputies, assistants and personnel to assist him in the performance of his duties."); 55 ILCS 5/3-10005.1 ("The treasurer shall control the internal operations of his office . . . ."); 55 ILCS 5/3-10005.4 ("Compensation of deputies and employees . . . shall be fixed by the treasurer . . . ."). Since no policy is implicated, Cook County cannot be liable for the Treasurer's personnel decisions, including his decision to fire Mr. Harding and his decision (if any) to protest Mr. Harding's unemployment insurance claim on the grounds of misconduct. *fn6" Cf. Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989) (finding that Cook County was not liable when it had no authority to train or set policy for employees under the supervision and control of the Sheriff of Cook County, an independently-elected constitutional officer), cert. denied, 495 U.S. 929, 109 L. Ed. 2d 496, 110 S. Ct. 2167 (1990). The Treasurer's Office is the governmental body that is responsible for any retaliatory discharge or harassment claims under § 1983.

 As for Mr. Kwit and Mr. Owens, they can be liable in their individual capacities under § 1983 if they knowingly, willfully, or recklessly "caused or participated in an alleged constitutional deprivation." *fn7" Rascon v. Hardiman, 803 F.2d 269, 273-74 (7th Cir. 1986) (quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)). They argue, however, that they did not have the authority to fire Mr. Harding nor did they cause or participate in his termination and thus, they cannot be liable for any constitutional deprivations related to his termination.

 Mr. Kwit was Mr. Harding's supervisor. It is undisputed that Mr. Kwit told Mr. Fuglsang that Mr. Harding left loose ends on projects and failed to finish projects in a timely manner. (12(N) St. PP 355-56). There is evidence that Mr. Fuglsang consulted with Mr. Kwit to determine whether to fire Mr. Harding and that Mr. Kwit concurred in the decision to fire him. (Id. PP 302-03). Mr. Rosewell testified that quite a bit of weight would have been given to Mr. Kwit's recommendation. (Id. P 304). I conclude there is sufficient evidence to go to trial on Mr. Kwit's alleged participation in the decision to terminate Mr. Harding.

 Mr. Owens was an assistant general counsel in the Treasurer's Office. Mr. Fuglsang consulted with him in determining whether to fire Mr. Harding. (Id. P 302). Although there is evidence that Mr. Owens said that he was "trying to get rid of . . . Harding" (Id. P 359), it is undisputed that Mr. Owens did not concur in the recommendation to fire him. (Id. P 310). If Mr. Owens disagreed with the decision to fire Mr. Harding, he cannot be held responsible under § 1983 as someone who caused or participated in the decision.

 A. Due Process

 Mr. Harding must have a protectible property interest in his employment to maintain a constitutional procedural due process claim. Gorman v. Robinson, 977 F.2d 350, 356 (7th Cir. 1992). A constitutionally protected interest arises when a governmental unit gives an employee an assurance of continued employment. Id. at 356-57. A provision that an ...


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