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Demauro v. Loren-Maltese

March 29, 2006


The opinion of the court was delivered by: Judge Joan B. Gottschall


Joseph DeMauro ("DeMauro") sued Betty Loren-Maltese ("Loren-Maltese"), the Town of Cicero ("Town"), Louis Guido ("Guido"), Leonard Rutka ("Rutka"), and the Town of Cicero Board of Fire Police and Public Safety Commissioners ("Board") (collectively "defendants")*fn1 for retaliation against him for his protected speech in violation of the First Amendment (Count I), deprivation of property without Due Process (Count II), and conspiracy (Count III).*fn2

Defendants, except for the Board, have moved for summary judgment on all three counts.

I. Summary Judgment Standard

Summary judgment is 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 party opposing summary judgment must "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine issue for trial unless there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986).

In this case, the parties have made deciphering which facts are undisputed challenging. Although defendants did not file a motion to strike, they have objected to a number of DeMauro's facts as relying on evidence that is inadmissible hearsay.

[H]earsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial, except that affidavits and depositions, which (especially affidavits) are not generally admissible at trial, are admissible in summary judgment proceedings to establish the truth of what is attested or deposed, provided, of course, that the affiant's or deponent's testimony would be admissible if he were testifying live.

Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). As detailed more fully below, the court has considered hearsay testimony only when it would be admissible at trial, consistent with the law governing on summary judgment.

Additionally, on summary judgment, the parties are required to support their statements of fact or disputes as to those statements with citations to admissible evidence. Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000). As discussed more fully below, the court has not considered facts not supported by the record evidence cited, and has deemed facts admitted where the "dispute" as to the fact is not supported by the evidence cited.

II. Background*fn3

DeMauro worked as a Public Safety Officer ("PSO") for the Town of Cicero from December 1993 until November 1998. Loren-Maltese was the Cicero Town President. In November 1996, Guido became the Cicero Fire Department's Chief of Operations. In 1996, Rutka was Director of Internal Affairs for the Cicero Police Department, and in 1997, he became Deputy Superintendent of the Police Department.

In 1997, there were primary and general elections for Town President of Cicero. Charles Hernandez ("Hernandez"), a police officer, and Emil Schullo ("Schullo"), a former police superintendent, ran against Loren-Maltese, the incumbent. Before the 1997 campaign, DeMauro was a member of the Town Republican Organization, Loren-Maltese's party, but DeMauro switched his political affiliation and supported Hernandez in the election. DeMauro's activities were not reported in the media, and DeMauro is unaware that any Town officials saw him at Democratic political events. During the 1997 campaign, however, DeMauro testified that a Republican precinct captain confronted DeMauro about his switch in affiliation.

In April 1997, Loren-Maltese was re-elected as Town President. Rutka and Guido were not aware of who DeMauro supported in the election.*fn4 Following Loren-Maltese's re-election as Town President, at least 30 Cicero police officers, constituting about one-third of the department, were suspended and had charges filed against them seeking their discharge. Hernandez averred that these 30 officers were all either his or Schullo's supporters. Rayle testified that Loren-Maltese was the Town official who decided to lodge charges against every officer who had discharge proceedings initiated against him before the Board.

Public Safety Officers were required to complete training in both law enforcement and firefighting. DeMauro was never assigned any firefighting duties and was part of the Police Department collective bargaining unit, not that of the Fire Department. It is undisputed that DeMauro knew he had to take the Firefighter II exam, but he disputes that he knew he was required to pass it. DeMauro took and failed the exam twice. ...

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