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CUNNIGHAM v. VILLAGE OF MOUNT PROSPECT

March 1, 2004.

TIMOTHY CUNNINGHAM, Plaintiff;
v.
VILLAGE OF MOUNT PROSPECT, THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF MOUNT PROSPECT, MICHAEL FIGOLAH, CHARLES LIVINGSTON, HENRY DAWSON, and ANTHONY HUEMANN, Defendants



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Before the Court are the motions of Defendants Village of Mount Prospect ("Village"), Michael Figolah, Charles Livingston, Henry Dawson, and Anthony Huemann [doc. no. 63-1] and Village of Mount Prospect Board of Fire and Police Commissioners [doc. no. 66-1] for summary judgment on the complaint of Plaintiff Timothy Cunningham, which alleges Defendants retaliated against Plaintiff for exercising his First Amendment rights, in violation of 42 U.S.C. § 1983. Also before the Court is the motion of Defendants Village, Figolah, Livingston, Dawson, and Huemann for sanctions under Federal Rule of Civil Procedure 11. For the reasons that follow, Defendants' motions for summary judgment are granted, and Defendants' motion for sanctions is denied. Page 2

FACTS

  The following facts are undisputed and supported by competent evidence in the record except as otherwise noted, and all reasonable inferences have been drawn in favor of Plaintiff, the non-movant.

 A. Parties

  Plaintiff Timothy Cunningham has been employed by the Village of Mount Prospect ("Village") Fire Department as a firefighter and paramedic since 1987. (Pl.'s LR 56.1(b)(3)(B) ¶ 1.)

  The individual defendants, Chief Figolah and Captains Livingston, Dawson, and Huemann are the current command staff of the fire department, which also includes Deputy Chief John Malcolm and Training Captain Gary Klein, who are not defendants. (Defs.' LR 56.1(a)(3) ¶ 8.) Chief Figolah reports to Michael Janonis, Mount Prospect's village manager and mayor. (Pl.'s LR 56.1(b)(3)(B) ¶ 54.) Chief Figolah became Fire Chief on March 1, 1998. (Defs.' LR 56.1(a)(3) ¶ 15.) The previous Fire Chief, Ed Cavello, served from 1986 to October 22, 1997. (Id ¶ 14.) Former Chief Cavello is not a defendant.

  Defendant Board of Fire and Police Commissioners ("Board") is established pursuant to state statute for the purpose of conducting new hire examinations, promotions, and discipline for the police and fire departments. (Id. ¶ 9.) The Board has no involvement in the internal operation of the fire department, including the administration of sick leave or negative sick time. (Id ¶ 12.)

  Under the structure of the fire department, firefighter/paramedics report to a Lieutenant, who reports to a Captain, who reports to the Deputy Chief, who reports to the Chief. (Id ¶¶ 16-18.) Firefighter/paramedics are responsible for conducting fire inspections, extinguishing fires, performing rescue operations, operating firefighting apparatus, assisting in emergency medical Page 3 service functions, and providing paramedic services. (Id. ¶ 19.) Lieutenants, among other duties, assign and direct activities of firefighters at the scene, command activities until relieved by the Captain, evaluate and counsel firefighters in their performance. (Id. ¶ 20.)

 B. Plaintiff's Employment Background

  Plaintiff served as an acting Lieutenant from June 1997 to February 2001, and he also was at times a paramedic evaluator, which required approval from the Chief, Deputy Chief, Administrative Captain, and the hospital. (Pl.'s LR 56.1(b)(3)(B) ¶¶ 111-12, 114.) In his work as a firefighter/paramedic, Plaintiff received excellent performance reviews and was not written up or reprimanded. (Id. ¶¶ 115-16.) Plaintiff's evaluations were signed by seventeen different officers including Chief Figolah, Captain Dawson, Captain Livingston, and Captain Thill. (Id. ¶ 119.) Plaintiff received consistently positive comments regarding his competence, emergency scene performance, ability to interact with co-workers, leadership abilities, professionalism, and dedication to firefighter safety. (Id. ¶¶ 117-18, 120-28, 131.) On his 1994 evaluation, Captain Thill noted that Plaintiff would make a "fine lieutenant in the future." (Id. ¶ 126.) On his 1999 evaluation, Captain Livingston commented: "Cunningham is a good firefighter with great potential. He is currently on the Lieutenant's list and has served in an acting Lieutenant position many times this past year. I have confidence in his abilities on the emergency scene." (Id. ¶ 121.) In addition, Plaintiff received positive comments regarding Plaintiff's care on patient surveys. (Id. ¶¶ 129-30.)

 C. Plaintiff's Union Activity

  After joining the fire department, Plaintiff joined the Mount Prospect Fire Fighter's Association ("Association"), which was a local organization comprised of Mount Prospect firefighters. (Id. ¶¶ 2-3.) Officers in the fire department (i. e., Lieutenants, Captains, Deputy Chief, Page 4 and Chief) were also members of the Association, but their membership was limited to attending social engagements; they were not allowed at Association meetings, and the Association did not negotiate on their behalf. (Id. ¶¶ 14-15.)

  1. Wages and Benefits

  Plaintiff was elected to the executive board of the Association in 1993. (Id. ¶ 6.) In 1990, Plaintiff was elected to the Association's Wage Committee, and in 1997, he became Chairman of the Wage Committee. (Id. ¶¶ 5-6.) Prior to 2000, the Association and the Village met about every three years, for a period of three to four months, to negotiate a new wage agreement. (Defs.' 56.1(a)(3) ¶¶ 24-25.) The Village was represented in wage negotiations by the Assistant Village Manager, Human Resource Director for the Village, a Village attorney, and the Fire Chief. (Id. ¶ 26.) The Board was not involved in negotiations. (Id. ¶ 27.) Plaintiff participated in negotiating new wage agreements on behalf of the Association in 1991, 1994, and 1997. (Id. ¶¶ 29-30; Pl.'s LR 56.1(b)(3)(B) ¶¶ 39-40.) At least one of Plaintiff's fellow Wage Committee members characterized him as a "bull dog," and he was generally known as an aggressive wage negotiator. (Pl.'s LR 56.1(b)(3)(B) ¶¶ 11-12, 37; Defs.' LR 56.1(a)(3) ¶ 42.)

  Plaintiff was strongly in favor of and very involved with organizing the firefighters to join the International Association of Fire Fighters ("IAFF"), an international union affiliated with the AFL-CIO. (Pl.'s LR 56.1(b)(3)(B) ¶¶ 16-18.) One of the reasons Plaintiff wanted to affiliate with the IAFF is that he believed it would allow the firefighters to negotiate a lengthier written contract including additional terms and conditions of employment, including pension benefits and matters covered by the Village's personnel rules. (Id. ¶¶ 21-26; Pl.'s LR 56.1(b)(3)(A) ¶¶ 45-46.) In 2000, the Association voted to join the IAFF. (Pl.'s LR 56.1(b)(3)(A) ¶ 43.) Page 5

  Plaintiff believed that the Mount Prospect village managers, as well as the Chiefs and Deputy Chiefs of the fire department, were not in favor of a lengthier written contract or of the firefighters associating with the IAFF. (Pl.'s LR 56.1(b)(3)(B) ¶¶ 27-31, 33-35.) Former Chief Cavello testified that he did not think it was necessary for the firefighters to join the IAFF. (Id. ¶ 32.) Plaintiff stated that Cavello advised him that it would not be to Plaintiff's benefit to join the IAFF. (Id. ¶ 36.)

  2. Safety Issues

  At various times between 1990 and 2001, Plaintiff (among other union members) addressed a number of safety issues with management in his capacity as a member and/or President of the Wage Committee: (1) the "manning issue," which concerned the number of men assigned to a particular apparatus (e.g., fire engine, fire truck) (id ¶¶ 41-51); (2) the physical validation test, which had allegedly injured several individuals (id ¶ 59); (3) the "paramedic opt-out," which would allow firefighter/paramedics to drop their paramedic status and specialize in other areas (id ¶¶ 60-61); (4) allowing firefighters to wear T-shirts instead of uniform shirts for emergency calls on hot days (id ¶¶ 69-78); (5) the Computer Aided Reporting System ("CARS") for ambulance run reports, which had several problems, and which some firefighters believed caused delays in returning to service after responding to an emergency call (id ¶¶ 79-84); (6) concerns about putting on neighborhood block parties for public relations, because during the parties, some residents would become intoxicated and climb on the fire trucks, and firefighters were concerned about difficulty in getting their equipment out at times (id ¶¶ 85-94); and (7) occasionally using "paid-on-call" ("POC") firefighters, who do not have the extensive training of full-time firefighters, to cover the shift of a sick firefighter, instead of using "hire-backs," which is a full-time firefighter from a different shift (id. ¶¶ 95-104). Page 6

  Plaintiff claims he met with resistance from management over these safety issues. Specifically, in negotiations regarding the manning and paramedic opt-out issues, former Chief Cavello said that Plaintiff should not tell him how to run his department. (Id. ¶¶ 47-48, 67.)

  3. Organizing Lieutenants

  Plaintiff was very vocal that he would attempt to organize the Lieutenants into a union if he were promoted to Lieutenant. (Id ¶¶ 105, 109.) Plaintiff claims that many Lieutenants had expressed to him that they did not believe it was necessary to organize, and some were concerned that if they organized, they would lose certain benefits because they would no longer be considered management. (Id ¶¶ 106-07.) In 2001, Chief Figolah allegedly told Plaintiff that it "was not acceptable" for him to organize the Lieutenants into a union, and Captains Livingston and Huemann testified that they did not see a reason for the Lieutenants to organize. (Id ¶¶ 108, 110.)

 D. Lieutenant Testing Process

  Firefighters who wish to be promoted to Lieutenant must successfully complete a screening and examination process to be placed on a promotional eligibility list. (Defs.' LR 56. l(a)(3) ¶ 49.) On average, only one out of four applicants will make the Lieutenant eligibility list. (Id. ¶ 176.) Before 2000, no more than twenty applicants could be placed on the promotion eligibility list; after 2000, no more than eight applicants could be placed on the list. (Id. ¶ 50.) When a Lieutenant position became available, the name at the top of the eligibility list was invariably chosen to fill the opening, and so on, in rank order down the list during the three years the list remained active. (Id. ¶¶ 52-53; Pl.'s LR 56.1(b)(3)(B) ¶¶ 258, 265.)

  The promotional testing process consisted of two parts, a pre-screening process and an Assessment Center. (Defs.' LR 56.1(a)(3) ¶ 54.) In 1994 and 1997, failure to score eighty percent Page 7 or better in each pre-assessment phase would preclude an applicant from moving on to the Assessment Center. (Id. ¶¶ 55-56.) In 2001, a candidate could not move on to the Assessment Center if he failed to score in at least the eightieth percenfile after combining the total scores for each part of the pre-screening phase of the examination. (Id. ¶ 57.) In the Assessment Center phase, an independent agency, the Illinois Fire Chiefs Association Fire Service Bureau, tested the candidates in three scenarios designed to assess the candidates regarding leadership, administrative skills, oral and written skills, ability to function in emergency situations, ability to supervise subordinates, and ability to perform functions in conformity with the department's policies and procedures. (Id ¶ 84.) No internal persons from the department evaluated the candidates during the Assessment Center phase. (Id ¶ 85.)

  The pre-screening process consisted of written examinations on general knowledge and local knowledge; a fireground simulation; and a Merit and Efficiency evaluation. (Id. ¶ 59.) Applicants were also given a writing exercise. (Id. ¶ 60.)

  The Merit and Efficiency evaluation included a "forced matrix" system by which Captains would rank each applicant relative to every other one from first to last. (Id ¶ 61.) Each candidate's name was listed in a column on the left-hand side of a chart and in a row on top of the chart. (Id.) The evaluating Captains would compare each person to the other and would place an arrow pointing to the person that compared better. (Id) After the matrix was completed, the arrows pointing to each person were added up, (Id.) The person with the most arrows pointing to him received the highest Merit and Efficiency ranking and so on. (Id.) The three evaluating Captains had to agree unanimously when ranking applicants' Merit and Efficiency scores. (Id. ¶ 68; Pl.'s LR 56.1(b)(3)(B) ¶ 297;.) The categories for which the Captains provided Merit and Efficiency scores included Page 8 emergency performance, teamwork, leadership, initiative, and job knowledge. (Defs.' LR 56.1(a)(3) ¶ 67.) The Chief had no role in evaluating candidates for Merit and Efficiency. (Id. ¶ 78.)

  After all testing was completed and the Captains had determined the Merit and Efficiency scores, the Chief submitted the list of qualified candidates to the Board, which approved the list. (Id. ¶ 86.) The Board then prepared the rankings after calculating all relevant scores. (Id.) The Board was responsible for establishing and administering the Lieutenant promotional process, but it was not involved in evaluating participants in the process. (Id. ¶ 47; Pl.'s LR 56.1(b)(3)(B) ¶ 229.) The Board approved the Lieutenant promotional testing processes to be used in 1994, 1997, and 2001. (Defs.' LR 56. l(a)(3) ¶ 48.) The Merit and Efficiency evaluation system was developed to evaluate attributes of firefighters seeking a promotion in a fair and reasoned manner. (Id. ¶ 63.) The criteria used in the Merit and Efficiency evaluation system are job-related, and the methodology applied is appropriate. (Id. ¶ 64.)

  1. 1994 Testing Process

  In 1994, Plaintiff, along with twenty other applicants, participated in the Lieutenant promotional process. (Id. ¶ 96.) Plaintiff scored 97.20 points out of 100 on the written portion of the examination, which was the third highest score that year. (Pl.'s LR 56.1(b)(3)(B) ¶ 150.)

  The Merit and Efficiency portion of the test was scored by Captain Kordecki, Captain Thill, and defendant Captain Livingston. (Id. ¶ 153.) Plaintiff received 12.6 out of 30 Merit and Efficiency points, which ranked him tied for fourteenth out of the twenty-one candidates. (Id. ¶ 151.) Plaintiff's overall pre-screening process score was a combined average of 77.98%, which did not satisfy the minimum requirement of 80%, so he was ineligible to proceed on to the Assessment Center. (Id. ¶ 152; Defs.' LR 56.1(a)(3) ¶ 98.) Page 9

  At some point after taking the test, Plaintiff reviewed his results with then-Chief Cavello, who told Plaintiff he scored very poorly on the "Teamwork" section of the Merit and Efficiency scores, which was the most heavily weighted section. (Pl.'s LR 56.1(b)(3)(B) ¶¶ 154-55.) Plaintiff believed at that time that he scored poorly on the Merit and Efficiency portion of the test due to his involvement with the union, in particular his work in collective bargaining. (Id. ¶ 156.) Plaintiff believed that others who made the Lieutenant eligibility list were not union advocates and were not as vocal about joining the IAFF as he was. (Id ¶ 165.) Plaintiff decided not to pursue a lawsuit in 1994, however, electing instead to wait until he took another promotion test and "see what happens." (Id ¶ 157.) Plaintiff told others that he would probably file a lawsuit if he did not make the Lieutenant eligibility list after the next test. (Id. ¶ 158.)

  2. 1997 Testing Process

  Plaintiff took a second Lieutenant promotional examination in 1997 along with eighteen other candidates. (Id. ¶ 169; Defs.' LR 56.1(a)(3) ¶ 107.) In 1997, the examination process was changed somewhat from 1994. In 1994, all candidates who took the written examination were evaluated under the forced matrix system for Merit and Efficiency. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(B) ¶ 173.) In 1997, however, only those who passed the written examination were to be evaluated under the forced matrix system. (Id)

  The written examination was administered and scored by a third party, Dr. Tyler. (Defs,' LR 56.1(a)(3) ¶ 108.) Only two candidates, including Plaintiff, originally passed the written examination. (Pl.'s LR 56.1(b)(3)(B) ¶ 188.) The 1997 testing process included an appeals system, whereby test takers could appeal the scoring of individual questions to Dr. Tyler. (Id. ¶ 189; Defs.' LR 56.1(a)(3) ¶¶ 109-12.) The Village paid extra for the appeal service, and the Board approved Dr. Page 10 Tyler's process allowing candidates to challenge answers to the written examination. (Defs.' LR 56.1(a)(3) ¶¶ 110, 113.)

  After the examination, a few test takers protested the scoring of a number of questions as to which the "correct" answers conflicted with local policy. (Id ¶¶ 115-16; Pl.'s LR 56.1(b)(3)(B) ¶¶ 190, 201.) Dr. Tyler heard the appeals and conferred with Chief Figolah and Captain Huemann, at least in part to confirm that the answers at issue did conflict with local policy. (Pl.'s LR 56.1(b)(3)(B) ¶¶ 196-97, 199-200.) After hearing the appeals, Dr. Tyler decided to accept additional "correct" answers for a total of eight questions. (Id ¶ 190; Defs.' LR 56.1(a)(3) ¶ 117.) Three other candidates, Juliano, Straub, and O'Neill, then scored high enough to pass the written examination. (Pl.'s LR 56.1(b)(3)(B) ¶ 202; Defs.' LR 56.1(a)(3) ¶ 118.)

  The Merit and Efficiency portion of the 1997 test was scored by defendant Captain Livingston, Captain Thill, and defendant Captain Dawson, (Pl.'s LR 56.1(b)(3)(B) ¶ 171.) Captains Livingston and Thill also scored Plaintiff's Merit and Efficiency portion in 1994. (Id ¶ 172.) In order to pass the Merit and Efficiency portion's forced matrix system, a candidate had to rank at the eightieth percenfile, at a minimum. (Id ¶¶ 232-33.) Because only five candidates were to be evaluated, the forced matrix system would allow just one person to achieve the required eightieth percenfile and move on to the Assessment Center. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(B) ¶ 173.) The Captains decided to curve the scores in such a way that all five candidates who passed the written portion of the examination ...


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