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October 1, 2002


The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge


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.)

In his position as Ward Superintendent, Plaintiff typically supervised two Refuse Collection Coordinators and twenty-two laborers who operated ten garbage trucks and one street sweeper. (Def.'s LR56.1(a)(3) St. ¶ 22.) Plaintiffs immediate supervisor was Thomas Ryan (Caucasian), the Superintendent for Division IV of the Bureau of Sanitation, Department of Streets and Sanitation. (Id. ¶ 19.) Ryan reported to Michael Picardi (Caucasian), the General Superintendent for the Department of Streets and Sanitation, Bureau of Sanitation. (Id. ¶ 20.) Picardi reported to Sanchez who in turn reported to Carey.*fn2 (Id.)

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 cases when:

. . . 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.)

The Court disagrees with Plaintiff and finds that because one of the prima facie issues in this case is whether Plaintiff was performing his job according to the City's legitimate expectations, evidence concerning Plaintiffs performance is clearly relevant, material and "of consequence" to the Court's determination of the subject summary judgment motion.*fn4 The Court also notes that even though Carey may not have been aware of every incident involving Plaintiffs performance, information concerning Plaintiffs poor performance was communicated to her through Plaintiffs superiors and is clearly "of consequence" to the determination of whether he was performing his job satisfactorily. Furthermore, the identity of those individuals who interviewed or supervised Plaintiff as well as a delineation of the races of the previous Ward Superintendents is clearly relevant in a reverse race discrimination action.

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 Rule 26(a)(2).

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 ...

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