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PHELAN v. CITY OF CHICAGO
October 1, 2002
JAMES PHELAN, PLAINTIFF,
CITY OF CHICAGO, DEFENDANT.
The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff James Phelan ("Plaintiff") seeks recovery against Defendant
City of Chicago (the "City") for reverse race discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. Pending before the Court is the City's
Motion for Summary Judgement. For the reasons set forth below, the Court
grants the City's Motion for Summary Judgment.
Plaintiff was first hired by the City as a police officer in 1992.
(2nd. Am. Compl. ¶ 4.) After Plaintiff took a leave of absence from
the City to serve as an Illinois State Representative, he graduated from
the Chicago Police Academy in September of 1993. (Id.) In October of
1993, the Chicago Police Department granted Plaintiff a leave of
absence, which was subsequently extended for twelve month periods in
1994, 1995, and 1996. (Id. ¶ 6.)
On November 1, 1995, while Plaintiff was on leave from the Chicago
Police Department, he was hired by the City's Department of Streets and
Sanitation to fill the Ward Superintendent position for the 23rd Ward.
(2nd. Am. Compl. ¶ 7.) Eileen J. Carey (Caucasian), the Commissioner
of the Department of Streets and Sanitation, interviewed Plaintiff and
made the decision to hire him for the Ward Superintendent position.*fn1
(Def.'s LR56.1(a)(3) St. ¶¶ 15, 18.)
Plaintiff worked full-time as Ward Superintendent until June of 1997,
when he took a leave of absence because of personal health problems.
(Def.'s LR56.1(a)(3) St. ¶ 50; Catharine Mullen Hennessy Aff. ¶
3.) Subsequently, in September of 1997, while Plaintiff was still on
leave, he applied for and was granted leave under the Family and Medical
Leave Act ("FMLA"). (Id.)
In September of 1997, Plaintiff was indicted for mail fraud. (2nd. Am.
Compl.6 15.) The indictment did not involve any allegations of misconduct
related to Plaintiffs employment with the City. (Id.) Plaintiff was
subsequently acquitted of the mail fraud charges. (Id)
In October of 1997, when Plaintiff returned from his leave of absence,
Carey terminated him because of his poor performance.*fn3 (Def.'s
LR56.1(a)(3) St. ¶ 59.) Carey informed Bresnahan of her decision to
terminate Plaintiff's employment, and explained that a change was being
made with the Ward Superintendent in the 23rd Ward. (Id. ¶ 60.)
On October 16, 1997, Plaintiff and his attorney met with Bresnahan and
Sanchez. (Def.'s LR56.1(a)(3) St. ¶ 63.) During the meeting,
Plaintiff was given a termination letter and told by Sanchez that he was
being terminated because he was an ineffective Ward Superintendent. (Id.
¶ 64.) Upon the advice of his attorney, Plaintiff signed the
termination letter and Bresnahan provided Plaintiff with a copy of the
letter. (Id. ¶ 65.) Plaintiffs reinstatement from his leave of
absence and termination were processed with an effective date of October
23, 1997. (Id. ¶ 66.)
Summary judgment is appropriate where "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving
party had produced evidence to show that it is entitled to summary
judgment, the party seeking to avoid such judgment must affirmatively
demonstrate that a genuine issue of material fact remains for trial. LINC
v. Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997).
In deciding a motion for summary judgment, a court must "review the
record in the light most favorable to the nonmoving party and to draw all
reasonable inferences in that party's favor." Vanasco v. National-Louis
Univ., 137 F.3d 962, 964 (7th Cir. 1998). See also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Nevertheless, the nonmovant may not rest upon mere allegations, but "must
set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). See
also Linc, 129 F.3d at 920. A genuine
issue of material fact is not shown by the mere existence of "some
alleged factual dispute between the parties," Anderson, 477 U.S. at 247,
106 S.Ct. 2505 or by "some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material
fact exists only if "a fair-minded jury could return a verdict for the
[nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252,
106 S.Ct. 2505.
"[S]ummary judgment is improper in a discrimination case where a
material issue involves any weighing of conflicting indications of motive
and intent." Stumph v. Thomas & Skinner, Inc., 770 F.2d 93 97 (7th
Cir. 1985), citing, Kephart v. Inst. of Gas Tech., 630 F.2d 1217, 1218
(7th Cir. 1980). On the other hand, the Seventh Circuit in Palucki v.
Sears, Roebuck & Co., 879 F.2d 1568, 1573 (7th Cir. 1989) explained
that summary judgment can be appropriate in employment discrimination
. . . realization that Title VII is occasionally or
perhaps more than occasionally used by plaintiffs as a
substitute for principles of job protection that do
not yet exist in American law, [has] led the courts to
take a critical look at efforts to withstand . . .
summary judgment. A district judge faced with such a
motion must decide . . whether the state of the
evidence is such that, if the case were tried
tomorrow, the plaintiff would have a fair chance of
obtaining a verdict. If not, the motion should be
granted and the case dismissed.
Plaintiff first moves to strike over forty paragraphs of the City's
Statement of Undisputed Material Facts submitted in support of its Motion
for Summary Judgment. For the following reasons, the Court denies, in
part' and grants, in part, Plaintiffs Motion to Strike.
Plaintiff first contends that the facts delineated in paragraphs
10-14, 16, 17, 19-21, 23-43, 49, 53-62 and 80 should be stricken because
they are not "of consequence" pursuant to Rule 401 of the Federal Rules
of Evidence to a determination of whether the City is entitled to summary
judgment because they primarily relate to performance problems which
Plaintiff claims are irrelevant or unknown by Carey, the decision-maker
in this case. (Fed.R.Evid. 401.) Plaintiff asserts that the cited factual
contentions identifying those individuals who interviewed or supervised
him as well as those contentions delineating the races of the previous
Ward Superintendents (including the subject 23rd Ward) have no bearing on
any issue in this case. (Pl.'s Mot. to Strike at 1-2.)
Plaintiff contends that paragraphs 10-12 should be stricken because
they constitute expert opinion regarding the job responsibilities of a
Ward Superintendent and the City has not complied with the expert
disclosure requirements of Rule 26(a)(2) of the Federal Rules of Civil
Procedure. .(Pl.'s Mot. to Strike at 3; Fed.R.Civ.P.26(a)(2).) The
Court, however, finds that Plaintiffs assertion is without merit, in
that, the Affidavit statement (which is the basis for paragraphs 10-12)
made by Plaintiffs supervisor (Ryan) would be viewed by the Court as lay
testimony that is not subject to the expert disclosure requirements of
Plaintiff asserts that paragraphs 37, 40-43, 49, 53, and 56-59 should
be stricken because they are based on self-serving and conclusory
assertions contained in affidavits. (Pl.'s Motion to Strike at 3-4.) The
Court, however, finds that the above-cited paragraphs should not be
stricken because the subject affidavits comply with Rule 56(e) of the
Federal Rules of Civil Procedure, in that, they are based on the personal
knowledge (of a witness competent to testify) and set forth admissible
facts. (Fed.R.Civ.P. 56(e).) Specifically, the affidavits signed by
Eileen Carey, Thomas Ryan, Alfred Sanchez, William Bresnahan, and
Catharine Mullen Hennessey, which the subject paragraphs are based on,
demonstrate compliance with the federal rule. The Court ...