United States District Court, N.D. Illinois, Eastern Division
December 15, 2005.
Patricia Wade, Plaintiff,
Robert Bravi, individually, and as agent for CHICAGO TRANSIT AUTHORITY; and CHICAGO TRANSIT AUTHORITY, Defendants.
The opinion of the court was delivered by: ELAINE BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Wade ("Wade") is a bus driver employed by
the Chicago Transit Authority ("CTA"). In the summer of 2003,
Wade's union, Local Union 241 of the Amalgamated Transit Union
(the "union"), and the CTA were engaged in negotiations for a new
labor contract. In support of its position, the union held a
series of protest rallies at the Merchandise Mart in downtown
Chicago. Wade attended a number of these rallies in August, 2003,
during which she carried signs and discussed the labor practices
of the CTA with fellow participants. These rallies were also
attended by CTA managers, including the general manager of the
Chicago Avenue garage where Wade was based, Robert Bravi
As part of the ongoing protest against the CTA, the idea was
promoted that drivers should engage in a work slowdown in order
to disrupt CTA service. On the morning of August 19, 2003, Wade
drove CTA Bus #6650 on the #70 Division route. Juanita Zimmerman
("Zimmerman") was a passenger on Wade's bus that morning.
According to Zimmerman, she observed that Wade was intentionally
driving slowly and driving past passengers at the bus stop. Prior
to disembarking, Zimmerman confronted Wade about her driving and
questioned her as to why she was driving slowly. Zimmerman states
that Wade answered that she was driving slowly as part of a labor
protest. After disembarking, Zimmerman called the CTA to file a
complaint against Wade and related her version of the interaction
with Wade. The complaint was forwarded shortly thereafter to the
Vice President of Bus Operations, William Mooney ("Mooney"), who
then forwarded it on to the manager of Wade's garage, Bravi. Upon
receiving the complaint that same day, Bravi instructed a
transportation manager, Antonio McFadden, to locate Wade and
bring her back to the garage. At this point, Bravi made a follow
up call to Zimmerman regarding the complaint. In this
conversation, Zimmerman verified the allegations of the original
Upon returning to the garage, McFadden met with Wade to discuss
the complaint against her. At this meeting, Wade denied
Zimmerman's accusations. Wade told McFadden that her delay had
been caused by a defective farebox and that she had not made any
remarks regarding a slowdown to Zimmerman. At some point either
during this meeting or shortly thereafter, McFadden informed Wade that she was suspended without pay pending an investigation of
Wade had two more meetings with CTA management while she
remained in suspension before having a final meeting regarding
the incident with Bravi on September 23, 2003. At all three of
these subsequent meetings with CTA management, Wade maintained
her innocence and claimed her delay was due to a broken farebox.
At the final meeting, it was determined that Wade would be
reinstated, would be given one year probation, and would be
repaid all lost wages with the exception of five days pay which
would serve as a penalty for her participation in the work
slowdown. Bravi had consulted with Mooney prior to this meeting
to determine Wade's punishment.
On August 5, 2004, Wade filed this complaint against the CTA
and Bravi. Wade's complaint contains four counts: 1) a
42 U.S.C. § 1983 action for violation of her First Amendment Rights; 2) a
state law action for intentional infliction of emotional
distress; 3) a § 1983 action for violation of her Fourteenth
Amendment due process rights; and 4) a state law claim for
respondeat superior and indemnification. Defendants seek summary
judgment on all counts.
Summary judgment is appropriate where the record shows that
there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Lexington
Ins. Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999); FED.
R. CIV. P. 56(c). I must construe all facts in the light most
favorable to the non-moving party and draw all reasonable and
justifiable inferences in favor of that party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202,
106 S. Ct. 2505 (1986). Defendants have also moved to strike certain
paragraphs of Wade's statement of additional material facts and
certain responses made by Wade to their statement of material
facts. To the extent the assertions in these paragraphs and
responses have no basis in the record, they have not been
I. Retaliatory Suspension
The crux of Wade's First Amendment complaint is that the CTA
used the Zimmerman complaint of a work slowdown as a pretext for
suspending her in retaliation for her participation in the
protest rallies. Wade does not allege that the Zimmerman
complaint was concocted or a sham, but rather that the CTA
unjustifiedly relied on it in suspending her in light of other
exculpating evidence. Defendants maintain that Wade was
disciplined for the sole reason that she engaged in a work
In order to establish a claim for retaliation in violation of
the First Amendment under § 1983, Wade must show that: 1) her
speech was protected; 2) her speech was a substantial or
motivating factor in the retaliatory action; and 3) the
defendants have an opportunity to establish that the same action
would have been taken in the absence of the employee's protected speech. Spiegla v.
Hull, 371 F.3d 928, 935 (7th Cir. 2004). Assuming, arguendo,
that Wade could establish that her speech was protected, I turn
first to the second and third factors in order to determine if
either is dispositive.
Turning to the second factor, Wade must show that her protected
speech was a motivating factor in her suspension. Wade does not
point to any direct evidence that demonstrates that her
participation in the rally was a factor in the decision to
suspend her. For example, Wade does not show that her
participation in the protest rallies was disapproved of by anyone
in the CTA, or that anyone in the CTA generally viewed
participation in the protest rallies by employees negatively.
Wade also has not presented any evidence from which an inference
of a retaliatory motive could be drawn. For example, Wade does
not show that other participants in the protest rallies were also
disciplined, or that other drivers accused of a work slowdown who
had not attended the protest rallies were treated less harshly.
In fact, when stripped of unsupported factual assertions, the
only evidentiary link proposed by Wade between the protest
rallies and her suspension is that CTA management may have been
aware of her individual presence at the protest rallies which
preceded her suspension. In an attempt to establish a stronger
link, Wade makes claims that the CTA management attended the
rallies in order to keep track of which employees were in attendance and that
"William Mooney testified that he wanted to identify the
employees who attended the rallies. . . ." The cited portion of
William Mooney's deposition, however, provides no basis for these
assertions. Mooney stated in his deposition that the CTA kept no
record of individual employees attending the rallies. Wade has
provided nothing but speculation in support of her claim that the
CTA did in fact keep track of the individual employees attending
the protest rallies.
Generally, a plaintiff may establish a causal link by showing
that adverse action was taken "on the heels of" protected
activity. Spiegla, 371 F.3d 928, 943; But see O'Connor v.
Chicago Transit Auth., 985 F.2d 1362, 1368 (7th Cir. 1993)
(holding that the fact protected activity precedes adverse action
does not alone show motivation). In this case, the significance
of this inferred causal link is greatly undermined by the fact
that in between the protected activity and the adverse action,
Zimmerman, an uninterested third party, filed a complaint of a
work slowdown, which undisputedly constitutes a serious and
actionable violation of CTA policy. A reasonable fact-finder
could not conclude that Wade's participation was a substantial or
motivating factor in her suspension based only on this evidence
of timing and potential awareness. Additionally, a review of the record demonstrates that Wade's
claim also could not succeed under the third factor of the test.
Defendants have adequately met their burden under the third
factor by showing that the same disciplinary action would have
been taken regardless of Wade's participation in the protest
rallies. Defendants have shown that they determined Wade had
performed a work slowdown and that it was CTA policy to
discipline employees found to have conducted a work slowdown.
Having shown a legitimate reason for Wade's suspension, the
burden shifts back to Wade in order to show that defendants'
justifications are pretextual. Vukadinovich v. Bd. of Sch. Trs.
of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002). A
plaintiff may prove pretext either by offering direct or indirect
evidence. Id. at 699-700. In reviewing the defendants'
decision, it is not the court's function to determine if the
defendants came to the correct decision in suspending Wade
because, even if the defendants' reasons for suspension were
"mistaken, ill considered or foolish, so long as [defendants]
honestly believed those reasons, pretext has not been shown."
Jordan v. Summers, 205 F.3d 337 (7th Cir. 2000).
Wade's only attack on the finding of a work slowdown as
pretextual is that the finding is erroneous because exculpating
evidence of a broken farebox clearly demonstrated her innocence.
Defendants relied on Zimmerman's verified complaint in reaching
its decision and thus the decision has a basis in fact. That
defendants either were unaware of the alleged farebox defect, or
were simply unconvinced that the problem exculpated Wade in light
of Zimmerman's affidavit, does not prove pretext. Wade's evidence
of a broken farebox shows that a different decision could have
been reached, but does not demonstrate that defendants did not
honestly believe Wade had performed a work slowdown. In terms of
challenging the sincerity of defendants' belief, Wade provides
only speculation in concluding that defendants intentionally
ignored evidence of the broken farebox.
Further cutting against both Wade's claim of pretext and her
showing of causation is the fact that Mooney's testimony
indicates that all drivers accused of a slowdown, whether they
attended protest rallies or not, were subject to the same process
and discipline as Wade. Wade does not contest or provide
contradicting evidence to Mooney's testimony stating that all
drivers accused of a slowdown were taken from their route and
initially suspended pending an investigation; that anyone found
to have performed a work slowdown was ultimately disciplined; and
that it was policy to accept a verified customer complaint as
determinative. Since Wade does not challenge the authenticity of
Zimmerman's verified complaint, the complaint in and of itself
demonstrates that discipline would have taken place despite
Wade's participation in the protest. Because Wade cannot prove a § 1983 violation of the First
Amendment under the second or third factors, I grant summary
judgment for defendants on this claim.
II. Due Process 14th Amendment
Wade claims that the process she received surrounding her
suspension violated her Fourteenth Amendment due process rights.
A due process claim must be based on a violation of a protected
liberty or property interest. Smith v. Eaton, 910 F.2d 1469,
1471 (7th Cir. 1990). Wade had a protectable property interest in
her continued employment at the CTA that was implicated by her
suspension. As a result, Wade was entitled to notice and a
hearing prior to discipline. Id.
Wade's suspension occurred on August 19th. Wade attacks the
process she received that day claiming, inter alia, that
"Bravi's orders [to suspend Wade] were given to McFadden before
the latter's perfunctory `interview' with the Plaintiff, thus
undercutting any notion that Plaintiff was afforded a fair
hearing before being suspended." According to McFadden's
deposition, the decision to suspend Wade was made prior to the
meeting where Wade was allowed to present her side of the story.
Thus, any process given would have been ineffectual because the
decision to suspend her had already been made.*fn1 See
Wainscott v. Henry, 315 F.3d 844, 853 (7th Cir. 2003); Hunt v. Fairman, 1998 U.S. Dist. LEXIS 2378 *12-13
(N.D. Ill. 1998). Furthermore, the CTA has not argued that
concerns exist that outweigh Wade's interest in pre-deprivation
On the other hand, Bravi's deposition states that the decision
to suspend Wade was made after he conferred with McFadden
regarding his meeting with Wade, in which case she had the
opportunity to present her side of the story. In this case, the
process given Wade could be deemed adequate. Accordingly, I find
that a there is a genuine issue of material fact as to whether
Wade received adequate process during her initial suspension. I
find Wade's other claims of due process violation to be without
Having determined that a due process claim may go forward, I
now turn to the related matter of determining who the claim may
proceed against. Defendants argue the claim may not be brought
against the CTA as an entity because Wade has not established a
basis for municipal liability. To establish municipal liability
under § 1983, a plaintiff must show a claimed constitutional
injury caused by: 1) an express policy of the municipality; 2) a
widespread practice that is so permanent and well settled as to
constitute a custom or usage with the force of law; or 3) a
person with final policymaking authority made the decision.
Chortek v. City of Milwaukee, 356 F.3d 740, 748 (7th Cir.
2004). Wade's argument for the imposition of municipal liability
under § 1983 centers entirely around the behavior of the CTA
regarding her First Amendment claim and is unrelated to the
alleged due process violations. Therefore, Wade has not presented
a basis for municipal liability and this claim may proceed
against Bravi in his personal capacity only. The court also
points out that damages related to this claim are limited to the
consequences of having been denied a hearing before disciplinary
action was taken. See Alston v. King, 157 F.3d 1113, 1118 (7th
III. Intentional Infliction of Emotional Distress
Wade also brings a state law claim for intentional infliction
of emotional distress. Without detailing specific instances of
conduct in her brief, Wade alleges that the circumstances
surrounding her retaliatory suspension give rise to this cause of
action. In order to establish a claim for intentional infliction
of emotional distress, Wade must show the conduct she suffered
was 1) extreme and outrageous conduct; 2) the defendant intended
to cause harm; 3) the defendant's conduct caused the sever
emotional distress. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill.
1988). Taken in the light most favorable to Wade, the events surrounding
Wade's suspension simply do not rise to the level of extreme and
outrageous conduct. See e.g., Harriston v. Chicago Tribune Co.,
992 F.2d 697 (7th Cir. 1993); Briggs v. North Shore Sanitary
Dist., 914 F. Supp. 245, 252 (N.D. Ill. 1996).
Accordingly, I grant summary judgment on this claim. Having
dismissed the only state claim, Wade's fourth claim for
respondeat superior liability against the CTA is also dismissed.
© 1992-2006 VersusLaw Inc.