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Breunlin v. Village of Oak Park

December 2, 2008

CYNTHIA BREUNLIN, PLAINTIFF,
v.
VILLAGE OF OAK PARK, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Cynthia Breunlin ("Breunlin") filed suit against Defendant Village of Oak Park ("Oak Park") under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., asserting a single claim for retaliatory discharge. Oak Park now moves for summary judgment on the claim, while Breunlin moves for partial summary judgment on two elements of the claim. For the reasons stated, Breunlin's motion for partial summary judgment is denied and Oak Park's motion for summary judgment is granted.

STATEMENT OF UNDISPUTED FACTS

I. Background

On November 17, 1997, Oak Park hired Breunlin as a Housing Programs Manager to continue its housing programs that had earned a national reputation. (Pl. 56.1 Resp. ¶¶ 4, 5; Def. 56.1 Resp. ¶ 1.)*fn1 At the time Breunlin took the position, Oak Park had already established its Single Family Rehabilitation Program ("SFRP") which had received commendations from the U.S. Department of Housing and Urban Development ("HUD") and Cook County. (Pl. 56.1 Resp. ¶ 5.) The SFRP provided federally funded loans to moderate and low income homeowners so they could make repairs to bring their homes into compliance with local building codes. (Pl. 56.1 Resp. ¶ 9.) Oak Park's Housing Department received approximately $200,000 to $300,000 of the $2 million that HUD gave to Oak Park each year. (Def. 56.1 Resp. ¶ 7.) Through its Housing Department, Oak Park assisted its residents who could not afford the expensive renovations required to maintain their homes. (Def. 56.1 Resp. ¶ 9.) Based on the success of Oak Park's programs, HUD referred other communities to the Oak Park Housing Department as a model for the advancements it had made in diversity and code compliance efforts. (Def. 56.1 Resp. ¶ 8.)

As Housing Programs Manager, Breunlin oversaw Oak Park's Housing Department including projects such as the SFRP, the Security Improvement Grant, the "Barrie Park" Program, the Garage Replacement and Repair Program and the Diversity Assurance program. (Pl. 56.1 Resp. ¶ 4.) She was responsible for supervising, planning and coordinating the activities and operations of the Community Development Division and for providing the Community & Economic Development Director with staff assistance. (Def. 56.1 Resp. ¶ 2.) She participated in the development and administration of the Community Development Division budget. (Def. 56.1 Resp. ¶ 3.) Breunlin supervised Housing Department Supervisor Frank Pond, Community Development Technician Jeff Leicht, Diversity Assurance Technician Charlie Fyfe and Administrative Assistant Sue Kornatowski. (Pl. 56.1 Resp. ¶¶ 7-8.) Pond was responsible for the SFRP, the Security Improvement Grant Program, the Garage Repair Replacement Grant Program and the Barrie Park Investment and Loan Grant Program. (Pl. 56.1 Resp. ¶ 7.) Leicht, who managed the day-to-day administration of the SFRP beginning in August 2002, reported directly to Pond. (Pl. 56.1 Resp. ¶ 8.)

During the first eighteen months of her employment, Breunlin reported to Village Planner Dudley Underdonk. (Pl. 56.1 Resp. ¶ 6.) After that, she reported to Community Development Director Rogene Hill ("Hill") until 2005, when Hill left Oak Park's Housing Department. (Id.) Breunlin then reported to Deputy Village Manager Peter Dame ("Dame") until his departure in 2006. (Id.) From 2006 until her termination on August 1, 2007, Breunlin reported to Deputy Village Manager Lisa Shelley ("Shelley"). (Id.)

In 2000, HUD's Annual consolidation Action Plan gave Oak Park an outstanding rating for use and management of federal funds. (Def. 56.1 Resp. ¶ 10.) The report also commended the performance of Housing Department staff in implementing, managing and monitoring federally-assisted housing programs in Oak Park during that time. (Id.)

In 2002, due to new federal regulations, the SFRP added a lead abatement component to reduce lead-based paint hazards in residential property. (Pl. 56.1 Resp. ¶ 10.) As a result of the new federal regulations, Oak Park was required to do full lead abatement on any SFRP project over $25,000 and partial lead abatement for any rehabilitation project under $25,000. (Pl. 56.1 Resp. ¶ 11.) To fund the lead abatement projects, Oak Park administered a federal grant to pay for eligible projects and administered a federally-funded low interest loan to pay for other rehabilitation work. (Id.)

Oak Park's Housing Program Advisory Committee ("HPAC"), a panel of volunteers from the community, received proposals for SFRP loans and lead abatement grants. (Pl. 56.1 Resp. ¶ 11.) After initial HPAC approval, the proposals went to the Oak Park's Village Board for approval. (Pl. 56.1 Resp. ¶ 12.) To prepare the Village Board for votes on pending proposals, the Housing Department staff prepared an Agenda Item Commentary for each proposal. (Id.) Because the members of the Village Board did not have expertise in running housing programs, they relied on Breunlin and her staff to interpret housing regulations and provide them with accurate information in the Agenda Item Commentaries so they could determine whether to approve the expenditure of Village and federal funds. (Pl. 56.1 Resp. ¶¶ 12-13.) Breunlin vouched for the truthfulness and accuracy of each Agenda Item Commentary by signing it before forwarding it to the Village Board for review. (Pl. 56.1 Resp. ¶ 13.)

From 1999-2003, Hill evaluated Breunlin as "Meets Expectations" or "Excellent." (Def. Add'l 56.1 Resp. ¶ 2.) From the start of her employment through May 2004, Breunlin accumulated several commendations and acknowledgments for her work. (Def. 56.1 Resp. ¶ 17.)

In May 2004, following a periodic inspection of SFRP files, the Cook County Department of Planning and Development stated that it found no concern, "indicating effective management of the program." (Def. 56.1 Resp. ¶ 11.) The report further noted that the SFRP's "[p]rogram records and files were maintained in an orderly, clear, and consistent fashion." (Id.) On several occasions, a local building owners' and managers' association asked Breunlin to speak at their meetings to describe the programs that Oak Park's Housing Department offered. (Def. 56.1 Resp. ¶ 14.) Over time, Breunlin became a spokesperson for Oak Park's housing programs. (Def. 56.1 Resp. ¶ 15.) She attended national conferences, spoke at an American Planning Association meeting, conducted a tour of Housing Department project sites in Oak Park for attendees of a national housing meeting held in Chicago, and gave presentations about Oak Park's programs in Colorado, Ohio and New Jersey. (Def. 56.1 Resp. ¶¶ 15-16.)

II. Problems Arise Within the SFRP

Over time, problems arose within the SFRP. In 2004, Breunlin became aware of deficiencies in Leicht's performance in managing the day-to-day operations of the SFRP. (Pl. 56.1 Resp. ¶ 14.) Specifically, she thought he was lazy, disorganized and had trouble getting along with homeowners. (Id.) She noted a breakdown in communication between Leicht and his immediate supervisor, Pond. (Id.) In her review of Leicht's performance, she described Leicht as having difficulty coordinating inspections alone, failing to communicate clearly to homeowners during projects, and preparing cost estimates and line items bids only after repeated requests. (Def. 56.1 Add'l Resp. ¶ 13.) Because neither Pond nor Breunlin had the authority to discipline Leicht without consulting Oak Park's Human Resources Department, Breunlin asked for authorization to discipline him on several occasions. (Def. Add'l 56.1 Resp. ¶ 11.) In those instances, Village Management asked for more specific descriptions of Leicht's conduct. (Def. Add'l 56.1 Resp. ¶¶ 12; 17.)

In Hill's 2004 performance evaluation of Breunlin, Hill stated that Breunlin "is very good at monitoring the program dollars and estimating the costs for the budget. The records are well kept and reports are good . . . [Breunlin] is a good liaison to the Housing Programs Advisory Committee." (Def. Add'l 56.1 Resp. ¶ 3.) However, Hill also commented that Breunlin "has a trusting style that works well with self disciplined employees. Both Frank Pond and Sue Kornatowski are very self- motivated and appreciate her confidence. Motivating, monitoring and documenting deficiencies for Charlie Fyfe and Jeff Leicht who do not demonstrate such traits is challenging for [Breunlin]." (Pl. 56.1 Resp. ¶ 15.) Breunlin agreed with Hill's assessment of her management. (Id.)

In May 2004, HUD issued its Assessment Report Summary, which evaluated Oak Park's federally funded housing programs. (Pl. 56.1 Resp. ¶ 16.) In the report, HUD raised concerns regarding the design of the SFRP. (Id.) Specifically, HUD recommended that Oak Park consider the following issues:

1. Are substantial rehabs including more than necessary code items that inflate costs significantly?

2. Should Oak Park perform full lead abatement on every property? Lead Based Paint Regulations do not require this.

3. Are lead and regular rehab costs simply too high? We did refer this question to our Lead Hazards and Healthy Homes Coordinator . . . who suggested that the Village's lead abatement costs may be significantly inflated.

4. Should temporary relocation units be abated or controlled? Who should be offered relocation?

5. Do all units need substantial rehab? The Village may wish to consider tiering assistance so that more units could be addressed. One tier could provide substantial rehab, another tier could address immediate life-safety issues, while another tier could be the emergency repair of one or more major systems. (Id.) Also in 2004, the Village Board became concerned about the high expenses associated with the SFRP. (Pl. 56.1 Resp. ¶ 25.)

In March 2005, Pond discovered an abuse of the SFRP. (Pl. 56.1 Resp. ¶ 17.) At that time, Oak Park resident Frank Johnson received substantial rehabilitation and lead abatement under the SFRP. (Id.) Pond ordered an appraisal on the home, which revealed that the second floor of the house received a significant expansion from a small attic to a full living space by raising the home's roof. (Id.) Additionally, the plumbing for a bathroom on the second floor had been "roughed in." (Id.) Upon inspection, Pond discovered that federal funds provided through the SFRP funded the work on Johnson's home. (Id.) Pond reported his findings to Breunlin and Dame.

In October 2005, a contractor reported to the Housing Department other problems with the SFRP. (Pl. 56.1 Resp. ¶ 18.) Robert Grimaudo ("Grimaudo"), owner of R&G Construction, a general contractor approved by Oak Park to perform rehabilitation and lead abatement work on SFRP projects, reported to Pond that Leicht had engaged in conduct that created unnecessary costs to Oak Park. (Id.) In response, Pond asked Grimaudo to make a written record of his concerns. (Id.) In the written statement, Grimaudo explained a discrepancy between the lead abatement price he quoted and the actual payout request from his lead subcontractor on a SFRP project at 838 S. East Avenue in Oak Park. (Pl. 56.1 Resp. ¶ 19.) Grimaudo stated that he prepared a sealed bid for that project which included a price quote for the lead abatement work and a price quote for the general rehabilitation price. (Id.) The quote for the lead abatement work was significantly lower than the quote for the rehabilitation work and his combined price represented the lowest bid. (Id.) Leicht told him that it would appear better to reverse the lead abatement and general rehabilitation figures because the other bidders for that project submitted higher figures for the lead abatement work than for the rehabilitation work. (Id.) Grimaudo expressed concern that he would have trouble paying his lead abatement subcontractor at the end of the project, but Leicht told Grimaudo to work it out with the subcontractor. (Id.) Leicht then filled out the paperwork for the project and asked Grimaudo to sign the form with the reversed lead abatement and general rehabilitation quotes. (Id.)

Grimaudo also explained that during completion of SFRP projects, contractors could create change orders to repair code violations that became apparent after the contractor began work on a project. (Pl. 56.1 Resp. ¶ 20.) Once a contractor initiated a change order, the SFRP would pay for the additional repair upon inspection and approval. (Id.) Grimaudo also noted that when he performed repairs at SFRP project sites, homeowners frequently asked him to make additional repairs that fell outside of the scope of the SFRP contract. (Pl. 56.1 Resp. ¶ 20.) The SFRP contract provided that the homeowners must pay for such repairs themselves. (Id.) However, in order to appease the homeowner, Leicht recommended that Grimaudo inflate the cost of his legitimate change orders to accommodate the homeowner's additional requests at Oak Park's expense. (Id.) In his report, Grimaudo stated "as the contractor, it does not matter to me who pays me for the work that I have completed, however, through Jeff Leicht's recommendations, I feel you need to be aware that this type of tactic is causing unnecessary costs to the Village." (Id.) Once Pond received Grimaudo's report, he informed Breunlin of the allegations against Leicht. (Pl. 56.1 Resp. ¶ 21.) While Breunlin did not know if Grimaudo's report was accurate, she took the allegations against Leicht seriously. (Pl. 56.1 Resp. ¶ 22.) Breunlin and Pond reported Grimaudo's allegations to Frank Spataro, Oak Park's Human Resources Director. (Pl. 56.1 Resp. ¶ 21.)

After receiving Grimaudo's report, the Human Resources Department ordered Pond and Breunlin to closely monitor Leicht. (Id.) Breunlin instituted weekly meetings with Leicht in late 2005, but Leicht refused to respond to her questions at these meetings. (Def. 56.1 Add'l Resp. ¶ 15.) Breunlin wanted to terminate Leicht, but she did not have the authority to do so. (Def. 56.1 Add'l Resp. ¶¶ 11, 16.) In his 2005 review, Leicht's performance review ...


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