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Maher v. City of Chicago

October 31, 2008

JEROME MAHER, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 3421- Jeffrey N. Cole, Magistrate Judge.

The opinion of the court was delivered by: Manion, Circuit Judge

ARGUED SEPTEMBER 17, 2008

Before MANION, WOOD, and WILLIAMS, Circuit Judges.

Jerome Maher sued the City of Chicago ("the City"), alleging, as pertinent here, that the City wrongfully demoted him in 1991, 1993, and 1998*fn1 for being absent from work while on active duty in the Naval Reserves, in violation of the Veterans' Reemployment Rights Act and its successor legislation, the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). The district court granted summary judgment to the City on the 1991 and 1993 claims, and a jury decided the 1998 claim in favor of the City. On appeal, Maher contends that: (1) the district court wrongfully granted summary judgment to the City on his 1991 claim; (2) the district court abused its discretion by excluding evidence regarding the alleged demotions in 1991 and 1993; and (3) the evidence was insufficient to support the jury's verdict in favor of the City on the 1998 claim. We affirm the district court in all respects.

I.

Maher entered the Naval Reserves in 1987. In August 1990, Maher was hired by the City in its Aviation Department ("Aviation"). At the time of his hiring, Maher had a degree in accounting and was a practicing Certified Public Accountant. Maher contends that, during a preemployment interview, the City told him that he would be hired as an "assistant commissioner"; however, for budgetary reasons Maher's salaried position as it appeared in Aviation's records would be "Director of Development Finance," apparently a lower position than an assistant commissioner. Maher's initial yearly salary was $43,128, and his initial duties were to manage accounts receivable for Aviation and to develop a computer system for determining rates for billing airlines and concessionaires. In February 1991, Maher was called to active duty in the first Gulf War. Maher alleges that his supervisor, Jerome Smith, expressed displeasure with Maher's upcoming absence from work during his deployment. When Maher returned to work in September 1991, he was appointed "Director of Revenue" with a salary of $49,440. Smith allegedly continued to criticize Maher based on his military service and threatened to have him fired. Maher was also required to report to one of his former subordinates. On August 12, 1992, Maher filed a formal complaint with the Department of Labor ("DOL"), in which he alleged that he had been denied advancement and subjected to public humiliation because of his military service. However, after some negotiations, Maher withdrew the complaint in December 1992.

In 1993, Aviation was reorganized, and Maher was given a new title: "Manager of Finance." His salary in-creased to $54,840 per year, and he was given a larger staff to supervise. Following the reorganization, Maher's duties involved supervising revenue and billing activities for O'Hare and Midway airports. Also in 1993, the City moved Aviation to O'Hare. Furniture from other offices was placed in Maher's office, making his office unusable for about a week. Maher alleged that, after the reorganization, another supervisor, Dwayne Hawthorne, harassed him by disparaging the military and stating that Maher was too old to serve in the military. Maher also claimed that another supervisor, Michael Cummings, stated that Maher's military commitments prevented him from "getting anywhere in this department."

In 1996, the Naval Reserves beckoned again; Maher was called into active duty to serve in Bosnia from August 1996 to May 1997. During Maher's absence, his sister, Maureen, who held his power of attorney, alleged that she was unable to secure Maher's paycheck for eleven weeks. Maureen also testified that she met with a city alderman and Commissioner Mary Rose Loney to discuss the paycheck problems, and that the alderman stated that Maher would never be considered for a promotion "as long as he's in the military." Upon Maher's return, Hawthorne initially refused to reassign Maher to his former duties. In 1997, Maher met with Robert Repel, a deputy commissioner who dealt with governmental affairs and legal issues, and complained about his treatment following his Bosnia deployment and the 1991 events. After this meeting, Maher was generally restored to his former responsibilities in July 1997, although two former members of his staff were assigned to work for Hawthorne.

Maher was subsequently transferred to the City's Landside Operations ("Landside") in January 1998. Landside is a division of Aviation that handles ground transportation operations at the City's airports. The transfer was ordered by Commissioner Loney, who in the meantime had fired Hawthorne. At Landside, Maher developed a high-speed rail system for O'Hare, as well as an "intermodal facility" that would bring together bus and rail services. Maher was also in charge of securing funding for the ground transportation master plan, which would revamp parking lots, bridges, train platforms, and other aspects of the ground transportation system. The entire project was estimated to cost $500 to $600 million. In addition to these responsibilities, Maher handled contracts and billing for the airport's ground transportation components. Landside handled approximately $100 to $120 million in parking revenue yearly. Maher, as well as the other Landside employees, supervised snow removal from O'Hare parking lots in the winter. After his move to Landside, Maher no longer had any staff and had to perform his own clerical work. When Maher testified in 2007, his annual salary had increased to $103,000 per year in salary and benefits.

In 2003, Maher filed suit against the City. The complaint alleged that Maher suffered adverse employment actions on three occasions based on his military service:

(1) in 1991, when he was not given the title of assistant commissioner; (2) in 1993, when he was given the title of manager of finance and again was not appointed an assistant commissioner; and (3) in 1998, when he was transferred to Landside. The parties consented to proceed before the magistrate judge. After the City moved for summary judgment on all of Maher's claims, the magistrate judge concluded that Maher had not created a genuine issue of material fact regarding the 1991 and 1993 claims and granted summary judgment in favor of the City. Specifically, the magistrate judge concluded that Maher had failed to produce evidence that he had been hired as an assistant commissioner and failed to produce sufficient evidence showing that any adverse action was motivated solely by his military commitments. Moreover, the magistrate judge concluded that laches would bar the 1991 claim, as the City had been prejudiced by Maher's delay in filing suit. However, the magistrate judge further held that Maher had created a genuine issue of material fact regarding whether his transfer to Landside in 1998 was motivated by his military service. The magistrate judge also granted a subsequent motion by the City to exclude evidence of the 1991 and 1993 incidents during trial. The 1998 claim went to trial, but the first jury was hung. A second jury found in favor of the City. Maher appeals, challenging: (1) the grant of sum-mary judgment on the 1991 claim; (2) the exclusion of evidence at the jury trial regarding the 1991 and 1993 events; and (3) the jury's verdict on the 1998 claim.

II.

A.

Maher first claims that the magistrate judge erred by concluding that laches barred his 1991 claim. On appeal, however, Maher does not challenge the magistrate judge's alternative holding that Maher failed to create a genuine issue of material fact regarding whether he had suffered an adverse employment action in 1991. " '[I]n situations in which there is one or more alternative holdings on an issue, we have stated that failure to address one of the holdings results in a waiver of any claim of error with respect to the court's decision on that issue.' " United States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001) (quoting Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 668 (7th Cir. 1998)); see also Coronado v. Valleyview Pub. Sch. Dist., 537 F.3d 791, 797 (7th Cir. 2008) (noting that the appellant's claim failed because of his "failure to confront ...


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