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ALTMAN v. CITY OF CHICAGO

August 11, 2004.

EDWARD F. ALTMAN, Plaintiff,
v.
CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge

MEMORANDUM OPINION AND ORDER

This case is before the Court on the motion of the defendant, the City of Chicago ("City"), for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, we grant the motion for summary judgment.

BACKGROUND

  The plaintiff, Edward F. Altman, began working for the City in 1975 as an Emergency Medical Technician for the Chicago Fire Department ("CFD"). In 1986, Altman accepted the position of Special Investigator in the CFD's Internal Affairs Division ("IAD"). In 1988, Altman became a Supervising Investigator, a position for which he obtained career service status. In 1993, Altman voluntarily took a leave of absence from his career service position to accept an appointment to the exempt and non-career service position of IAD Director. In 1993, after Altman accepted the non-career service position of IAD Director, the then vacant position of Supervising Investigator, previously held by Altman, was eliminated.

  The City maintains that Altman was discharged from his exempt position of IAD Director for failing to take appropriate steps to report and investigate a videotape of a 1990 retirement party held at a CFD fire house. The videotape apparently depicted CFD members consuming alcohol in a firehouse, going on a run to a potential fire scene after consuming alcohol at the party, making racially derogatory comments and exposing themselves. The release of this videotape drew both local and national media attention.

  Altman claims that he was informed of the videotape in May 1997, by IAD Administrative Assistant, Mark Edinburg. Altman claims that upon learning of the tape, he instructed Edinburg to obtain a copy from Ezra McCann, the Fire Captain of Engine Co. 100, but that McCann refused to turn over the tape to Edinburg. According to Altman, he also informed Chief Connolly, head of labor and discipline for the CFD, about the existence of the tape in June, 1997, and that Connolly told Altman to get a copy of the tape. Altman claims that he informed his father, Fire Commissioner Edward Altman, of the tape's existence in July 1997, and that McCann stated he would give the tape only to Commissioner Altman. Altman further claims that he set up a meeting between McCann and Commissioner Altman on July 18, 1997 but that McCann did not tender the tape to Commissioner Altman at that time. Altman personally viewed the tape with McCann on July 23, 1997 and claims that he asked for a copy, but that McCann reiterated that he would give a copy only to Commissioner Altman. McCann failed to appear at a meeting with Commissioner Altman scheduled for July 29, 1997. According to Altman, he did not have the authority to directly order McCann to turn over the tape.

  Altman claims that McCann gave a copy of the videotape to Channel 2 (WBBM), and that Altman was informed of this fact on or around November 20, 1997. On November 21, Altman and Edinburg met with Commissioner Altman, who informed the Mayor's office of the videotape's existence. In late November, 1997, the City's Law Department initiated an investigation into the conduct depicted on the videotape, as well as the subsequent actions taken by the CFD. Altman claims that the Mayor directed the Law Department to take over this investigation from the CFD. McCann gave a copy of the videotape to the City's Law Department in late November, 1997, soon after the Law Department had initiated its investigation.

  On December 3 and 4, 1997, the news media exposed the videotape and its contents, creating a flurry of negative local and national media attention. On December 8, 1997, Commissioner Altman removed Altman from his position as IAD Director and reassigned him to Personnel. On February 10, 1998, Patrick Kehoe, the First Deputy Fire Commissioner, presented Altman with written charges which had grown out of the Law Department's investigation. On February 11, 1998, Glenn Carr, the Commissioner of Personnel, informed Chief Kehoe that he had reviewed the charges against Altman and that the disciplinary process could be initiated. Altman was given a chance to respond to the charges, and he did so in writing on February 14, 1998. On February 25, 1998, Chief Kehoe informed Altman that he was going to be discharged from the position of IAD Director, effective February 27, 1998. Altman submitted his resignation letter on February 27, 1998, though he claims that the letter was drafted for him by Commissioner Altman.

  After his removal from the IAD Director position, Altman requested to be placed on a reinstatement list for his former career service position of Supervising Investigator. The City's Personnel Rules provide that a career service member on leave and employed in an exempt capacity seeking to return to career service grade will be placed on a reinstatement list. Altman contends that the CFD has a custom or policy of disregarding the Personnel Rules and, instead, returning exempt employees directly to their career service grade or equal level. On March 30, 1998, the Department of Personnel agreed to place Altman on the reinstatement list, but advised him that his former position of Supervising Investigator had been eliminated from career service in 1993 and that reinstatement lists are not utilized for non-career service appointments. After twelve months, Altman was removed from the reinstatement list, as per the Personnel Rules. At that time, Altman was considered to be no longer employed by the City and not eligible for reinstatement to any other position.

  In 1999, Altman filed a three-count complaint against the City pursuant to 42 U.S.C. ยง 1983. Count I alleges that the City deprived Altman of a property and liberty interest in his continued employment with the City without being afforded procedural due process. Count II alleges a denial of substantive due process based upon violations of Altman's property and liberty interests. Count III alleges that Altman was denied equal protection because, unlike other similarly situated employees, he did not receive a career service appointment when he lost his exempt position.

  DISCUSSION

  Summary judgment will be granted when "the pleadings, depositions, answers to interrogatories, and admissions of 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court will not render summary judgment if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The mere possibility of a factual dispute is not enough to defeat a summary judgment motion. Id. at 250; Waidridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). I. Altman Has No Evidence That He Was Denied Due Process

  Before Altman may assert a due process claim, be it procedural or substantive, he must establish that he has a "legitimate claim of entitlement" to the right being asserted. Harris v. City of Auburn, 27 F.3d 1284, 1285-86 (7th Cir. 1994) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). In Counts I and II, Altman asserts deprivations of procedural and substantive due process based upon his claims of violations of his property and liberty interests. However, ...


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