The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before this Court on two motions for summary judgment: the first filed by Defendants the City of Harvey (the "City"), Harvey Mayor Eric Kellogg ("Mayor Kellogg"), and Harvey City Councilmen Frank Peikarski, Joseph Whittington, Daryl Crudup, Thomas Dantzler, Donald Nesbit and Ronald Waters ("the City Council"), and the second filed by Defendant Harvey Public Fire Safety Administrator Frank Bell ("Bell"). Because the two motions involve the same issues, we address them together. For the following reasons, summary judgment is denied as to the City, Bell, and Mayor Kellogg, and granted as to the City Council.
Plaintiff Frank Hauenschild ("Hauenschild") was employed as a firefighter by the City of Harvey from 1977 until his resignation on January 2, 2004. At the time he retired, Hauenschild had been a captain for 12 years. In addition, Hauenschild passed the bar exam in 1988 and is an attorney with an active law practice.
While employed by the City, Hauenschild began serving as a member of the City of Harvey Firefighters' Pension Board ("Pension Board"), and in June 2003, he was elected as its President. The Pension Board administers a system of retirement benefits for Harvey firefighters through the Harvey Firefighters' Pension Fund ("Pension Fund"). The Illinois Firefighters' Pension Code prohibits a firefighter from receiving pension benefits while in active service with the same fire department from which s/he retired.
In the spring of 2003, Eric Kellogg was elected Mayor of Harvey, and upon taking office, appointed Frank Bell as the Public Safety Fire Administrator. Bell, a former Harvey firefighter, had been receiving benefits from the Pension Fund since his retirement in 1996. Mayor Kellogg told Bell that, based on other towns' experience, his appointment would not prevent Bell from continuing to receive pension benefits. However, when Bell was appointed, his pension benefits were suspended. Bell appealed to the Pension Board, and at a hearing on December 2, 2003, the Pension Board voted 4-3 against reinstatement of Bell's pension benefits. Hauenschild was one of the members who voted against reinstatement.
At the hearing, Mayor Kellogg was adamant that Bell's pension should not be suspended and that the Fund's ultimate decision was unfair. The Mayor demanded to know who had contacted the Pension Fund's attorney to inform him that a hearing was taking place, and Hauenschild admitted that he had done so. In his deposition, Mayor Kellogg described the hearing as a "kangaroo court" and testified that he felt that race played a role in the Pension Board's decision.
Only a day or so after the Board voted not to reinstate Bell's pension benefits, Bell altered Hauenschild's work schedule. Bell had the duty to assign Fire Department personnel to different shifts, and Mayor Kellogg had given Bell latitude to run the dayto-day operations of the Department. Prior to the hearing, Bell had approved a 2004 manpower schedule that included Hauenschild's assignment to the "Black Shift" on a 24/48 rotation. Immediately after the hearing, Bell rescinded that schedule and placed Hauenschild on a schedule of working eight-hour days, Monday through Friday. Although Hauenschild retained his title as Captain, his duties were changed entirely; he was removed from the duty of responding to emergency calls, was not assigned a department vehicle, and was not given keys to an office. Hauenschild's only assigned task was to update the Fire Department's policy and procedure manual.
Hauenschild was eventually provided a place to work - the former Deputy Chief's office - which had no working telephone and had previously been used for storage. Bell eventually ordered storage materials to be removed from the office, and when Hauenschild complained, ordered that Hauenschild be given a printer for the computer in the office. Although he assigned Hauenschild the task of updating the manual, Bell did not provide a disk copy. When Hauenschild tendered to Bell his suggested revisions to the policy and procedures manual, as directed, Bell neither reviewed them nor offered feedback.
Hauenschild requested that Bell return him to his old shift and prior position of authority in the department. Bell did not alter Hauenschild's shift or position.
On December 19, 2003, Hauenschild's attorney sent a letter to the Mayor, Bell, and the City Council complaining about the change in Hauenschild's duties and asserting that Bell had retaliated against Hauenschild for his exercise of his First Amendment rights. Mayor Kellogg spoke to Bell about the letter, and although Kellogg remembered speaking to others about the letter, he could not recall with whom he spoke. Prior to January 2, 2004, neither the Mayor nor the members of the City Council responded to Hauenschild's letter.
On January 2, 2004, Mayor Kellogg sent a letter to Hauenschild's attorney, denying that there was any retaliatory motive for the change in Hauenschild's duties, and requesting a meeting to resolve the issues. The same day, Hauenschild resigned. The parties dispute whether or not a meeting was ever ultimately scheduled.
Hauenschild filed this suit against Mayor Kellogg, the City Council, and Bell, all in their individual capacities, as well as the City of Harvey itself. Hauenschild alleges that Defendants have violated his constitutional rights by demoting him, reassigning him, and constructively discharging him, all in retaliation for his vote as a member of the Pension Board to deny Defendant Bell's pension benefits. Initially, we denied Defendants' motion to dismiss, holding that the allegations of Hauenschild's complaint were sufficient to state a claim for First Amendment retaliation, a § 1983 conspiracy claim, and a due process claim for unconstitutional deprivation of property. Defendants now move for summary judgment on all counts.
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record, at which time the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). At summary judgment, we construe all facts and draw all inferences from the record in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Hauenschild's claims are premised on 42 U.S.C. § 1983, which provides that "[e]very person who, under color of statute, ordinance, regulation, custom, or usage, of any State...subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law." Defendants have moved for summary judgment on all of Hauenschild's claims: Count I, which asserts a claim of retaliation for exercise of First Amendment rights, Count II, which asserts a conspiracy among all defendants to violate Hauenschild's First Amendment and property rights, and Count III, which asserts a claim for constructive discharge amounting to an ...