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HEALY v. CITY OF CHICAGO

July 19, 2004.

DENNIS HEALY, Plaintiff,
v.
CITY OF CHICAGO, et al. Defendants.



The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge

MEMORANDUM OPINION AND ORDER

On October 2, 2000, Plaintiff, Dennis Healy, filed a civil rights action alleging the defendants committed actions in violation of his First and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983, and in violation of the Shakman consent decree. In his Complaint, Healy alleges that the defendants violated his First and Fourteenth Amendment rights by taking adverse employment actions against him: (1) because he reported public employee corruption; (2) because he was not an active supporter of the Democratic Party; and (3) based on impermissible political considerations or affiliations. On May 17, 2001, after briefing by the parties, the Court dismissed all claims of retaliation in Count II, all untimely claims, and all claims for damages against the individual defendants in their official capacity, except for Healy's claims for injunctive relief. The remaining defendants in this case, the City of Chicago ("City"), Richard Rice ("R. Rice"), Francis Blake ("Blake"), and Judith Rice ("J. Rice") (collectively "Defendants") filed the instant summary judgment motion on December 1, 2003. For the following reasons, Defendants' summary judgment motion is granted. I. BACKGROUND

Healy is a licensed stationary engineer. He has been employed by the City since 1981, and he is currently assigned to the Mayfair Water Pumping Station ("Mayfair"). Defendant Blake was the Deputy Commissioner of the City's Department of Water ("DOW") from 1996 through September 28, 2001. Blake reported to the Commissioner of the DOW. Defendant R. Rice has been the Commissioner since December 15, 1999, and Defendant J. Rice was the Commissioner from July 16, 1996, through November 30, 1999. John Bolden preceded J. Rice and R. Rice as Commissioner.

  From 1992 to as recently as 1999, Healy has periodically reported alleged criminal activity by his co-workers to Defendants, other city officials, and the City Inspector General's Office ("IGO"). The alleged criminal activity, including theft of city property, fraudulent business practices, and drinking on the job, took place predominately in the years 1992 and 1993, but possibly as late as 1995, the date which Healy states the alleged corruption ended. Healy claims that in response to his reports of corruption and because he did not actively support the Democratic Party, he was suspended for five days in August 1993; and from 1993 to the present, he has been reprimanded orally and in writing, denied several promotions, assigned to unfavorable work shifts for an unusually long period of time, transferred to unfavorable assignments, banned from necessary safety meetings, and denied his allotment of vacation days.

  After being suspended in August 1993, Healy complained to Bolden. Healy claims that Bolden, and later Blake and J. Rice, promised him that the suspension would be rescinded and the promotion forthcoming. The only evidence of these conversations and promises, however, is Healy's unsubstantiated claims. Defendants deny that they took place. Healy claims that after 1993, he made further complaints of the adverse employment actions against him and of corruption at Mayfair: in 1994 to Mayor Daley, and in 1995 to Michael Daley. In 1999, Healy checked with the IGO on the status of his earlier complaint of corruption. In January 2000, Healy and Blake had a conversation about Healy's lack of promotions.

  On May 18, 2001, after briefing by the parties, the Court held that all of Healy's untimely claims were barred. The statute of limitations for 42 U.S.C. § 1983 actions arising in Illinois is two years, Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992), and the statute of limitations for alleged violations of the Shakman consent decree is 180 days. Smith v. City of Chicago, 769 F.2d 408, 413 (7th Cir. 1985). The Court found that the alleged retaliatory or discriminatory acts Healy complained of that occurred outside the statute of limitations period were not sufficiently linked to the alleged acts that occurred within the statute of limitations period to constitute a continuing violation, and they were thus barred. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 114 (2002) (discrete discriminatory acts, such as failure to promote and denial of transfer, that occurred outside the relevant time period are time-barred); Selan, 969 F.2d at 564 (continuing violation doctrine is only justified when it would have been unreasonable to require the plaintiff to sue separately on each alleged discriminatory act). As Healy filed his complaint on October 2, 2000, his § 1983 claims based on acts occurring prior to October 2, 1998, are barred, and his claims for violations of the Shakman consent decree that arose prior to April 4, 2000, are barred. The alleged untimely discriminatory acts may only be considered for background purposes in support of Healy's timely claims. Morgan, 536 U.S. at 114.

  Healy's remaining timely claims are that, as a result of his protected activity, Defendants banned him from safety meetings in October 1998, and denied him promotions to the following positions: (1) Assistant Chief Operating Engineer ("ACOE") on August 26, 1998, of which he was informed on October 2, 1998; (2) ACOE on November 20, 1998; (3) Chief Operating Engineer ("COE") on December 3, 1998; (4) ACOE on June 7, 2000; and (5) ACOE on July 20, 2000.*fn1 There were various numbers of openings for each position on these dates. Usually four ACOEs are assigned to each steam pumping station such as Mayfair.

  As for the safety meetings, Healy claims Fred Hoppe, a former CEO at Mayfair, told him in 1997 or 1998 that he could not go to the safety meetings any longer. (Healy, 389-90).*fn2 However, Healy admits that he probably went to two safety meetings in 1998 and about one safety meeting per year since 1999. In addition, the evidence does not show how many safety meetings occurred each year, or how many Mayfair employees actually went or were required to go to each safety meeting. In fact, Healy admits that employees do not go to every meeting. (Healy, 387-97).

  Mayfair's promotion process occurs as follows. At the beginning of each year, the Deputy Commissioner prepares a hiring plan which lists the position vacancies and the order in which they will be filled. The Department of Personnel ("DOP") for the City determines the number of positions to be filled, and the DOP then sends a list of eligible bidders for the positions to the Commissioner. The Commissioner is advised of the vacancies, and the Deputy Commissioner selects a three-person committee to conduct the interviews of those bidding for a position.

  Applicants for positions were interviewed separately with a standard interview form, but there is no ban on the interviewees talking with each other outside of the interview room. After each interview, the interviewers give the candidate a numerical rating. The interview panel does not know who the candidates are until the day of the interview, unless they gain that knowledge through informal conversations.

  Although Healy denies the committee used a standard interview form and interviewed candidates separately, all of the evidence, including the hundreds of pages cited in support of Healy's denials, shows that the interviewers use a rating sheet with pre-set criteria for each interviewee. For example: (1) Thomas Special, a COE at Mayfair, testified in detail as to the specific questions used in interviews, and he affirmed that "we stick to the questions," (Special, 65-77); (2) Robert Cannatello, a COE who served on certain interview panels, stated that "we grade them on their ability of answering questions . . . [t]hen we bring our paper work to the department," (Cannatello, 7); (3) Mary Jo Falcon, the record keeper, submitted an affidavit affirming the use of interview forms, and attaching them to Defendants' motion, Exhibit Q ("Def. Ex. Q"); and (4) Blake testified that "the panel would sum up the results of the bidders" answers to interview questions. (Blake, 12-13). Healy disingenuously includes citations to hundreds of pages of irrelevant citations to the record which do not support his denials. Rather than creating an issue of fact, Healy merely wasted this Court's time.

  After the candidates are interviewed and rated, the rating sheets are sent to the Deputy Commissioner's office. The Deputy Commissioner summarizes the interviews and tabulates the scores, without discussing the candidates with the Commissioner or the interview panel. He then compiles a list with the numerical rankings and makes a recommendation based on the scores to the DOP. The DOP then gives the Commissioner a list with the names of those interviewed, their numerical ratings, and the DOP's recommendations for promotion based on the numerical ratings. The Commissioner makes the final promotion decision. Commissioners J. Rice and R. Rice do not recall any time when they did not approve the recommendations of the interview panel for the positions of ACOE and COE.

  II. SUMMARY JUDGMENT STANDARD

  Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The opposing party must then "go beyond the pleadings" and "designate specific facts showing that there is a genuine [material] issue for trial." Anderson, 477 U.S. at 248. The non-moving party cannot create an issue of fact with speculation or conjecture. Borcky v. Maytag, 248 F.3d 691, 695 (7th Cir. 2001). During its summary judgment analysis, the court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996).

  III. ANALYSIS

  A. Count I — First Amendment Retaliation

  A § 1983 claim for retaliation in violation of the First Amendment requires a three-step analysis: First, the court must determine whether the plaintiff's speech was constitutionally protected. If so, then the plaintiff must prove that the defendant's actions were motivated by the plaintiff's constitutionally protected speech. Finally, if the plaintiff can demonstrate that his constitutionally protected speech was a substantial or motivating factor in the defendant's actions, the defendant is given the opportunity to demonstrate that it would have taken the same action in the absence of the plaintiff's exercise of his rights under the First Amendment.

 Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999). Defendants initially claim that they are entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To be immune, Defendants' actions "must not have been in violation of clearly established law of which a reasonable person should have known." Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998) (citing Harlow, 457 U.S. 800). Since Healy claims Defendants retaliated against him based on his First Amendment right to speak out on matters of public concern, Defendants must not have known that Healy's speech was constitutionally protected in order to be entitled to qualified immunity. Martinez, 148 F.3d at 858. As the Court explains below, Defendants should have known that at least some of Healy's speech touched upon matters of public concern, and Healy's interest as a citizen in speaking out on these matters of public concern outweighed Defendants' interest in promoting efficient public service. Connick v. Myers, 461 U.S. 138, 147-48 (1983); Pickering v. Board of Educ., 391 U.S. 563 (1968).

  1. Was Healy's Speech Constitutionally Protected?

  The first step of this analysis — determining whether the plaintiff's speech was constitutionally protected — is a question of law for the court, which requires application of the two-part Connick-Pickering test. Id. First, the court must determine whether the plaintiff's speech addressed a matter of public concern. Connick, 461 U.S. at 147-48. If so, the court must apply the Pickering balancing test to determine whether "the interests of the [plaintiff], as a citizen, in commenting upon matters of public concern" outweigh "the interest of ...


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