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Harris v. City of Chicago

October 14, 2009


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Plaintiff, Donnell Harris ("Plaintiff" or "Harris"), was discharged from his employment with the Defendant City of Chicago ("Defendant" or "City"), purportedly for violating the City's Personnel Rules and Ethics Ordinance. On November 6, 2008, Plaintiff filed an eighteen-count second amended complaint [113] based on the City' s investigation of Plaintiff and its resulting decision to terminate of his employment. Plaintiff alleges retaliatory discharge in violation of the First Amendment, the Illinois Constitution, and public policy (Counts I and XIII); violations of due process (Counts II -- IV); violation of his equal protection rights (Count V); conspiracy in violation of 42 U.S.C. § 1983 ("Section 1983") (Count VI); race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") (Count VII); various breaches of the Collective Bargaining Agreement ("CBA") between the City and State and Municipal Chauffeurs and Helpers Union Local 726 (Counts VIII -- X); breach of contract (Count XII); intentional infliction of emotional distress (Count XIV); negligence and gross negligence (Counts XV-XVI); and violation of the Age Discrimination in Employment Act ("ADEA") (Count XVIII).*fn1 Plaintiff also seeks a declaratory judgment that the City violated the CBA (Count XI) and a common law writ of certiorari review of the Human Resources Board' s decision upholding Plaintiffs termination (Count XVII).

This matter is before the Court on the City's motion for summary judgment [143]. For the reasons set forth below, the Court grants Defendant' s motion for summary judgment as to Counts VI, VII, and the Section 1983 claims set forth in Counts I through V of Plaintiff's second amended complaint. In view of that disposition, which results in the dismissal of all claims over which the Court has original jurisdiction, Plaintiff's state law claims --the state constitutional claims set forth in Counts I through V and Counts VIII through XVII of his second amended complaint -- are dismissed without prejudice pursuant to the "usual practice" in the Seventh Circuit when "all federal claims have been dismissed prior to trial." Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999).*fn2

I. Background

A. Procedural Background

On December 12, 2006, the City terminated Plaintiff's employment as a street sweeper for the City' s Department of Streets and Sanitation ("DSS"). Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against the City of Chicago on February 16, 2007, alleging that his discharge constituted race discrimination in violation of Title VII of the Civil Rights Act. Plaintiff also appealed his discharge to the Human Resources Board of the City of Chicago (the "HR Board"). On August 21, 2007, after holding a hearing on the matter, the HR Board upheld Plaintiff's termination.

On July 16, 2007, Plaintiff initiated the instant suit by filing a pro se complaint against the City. Two months later, on September 6, 2007, Plaintiff filed an action for a writ of certiorari in the Circuit Court of Cook County, challenging the decision of HR Board upholding his termination. With the assistance of appointed counsel, Plaintiff filed a first amended complaint on January 8, 2008. The City moved to dismiss Plaintiff's first amended complaint. On June 30, 2008, this Court granted in part and denied in part the City' s motion, dismissing Plaintiff's ADEA claim for failure to exhaust his administrative remedies [77]. This Court also denied Plaintiff's subsequent motion for leave to retain the ADEA claim [111].

On April 14, 2008, Plaintiff sought leave to amend his complaint to add his common law writ of certiorari claim; the Court granted that motion on May 21, 2008. Plaintiff filed a second amended complaint on November 6, 2008 [113]. The City's motion for summary judgment is directed against that complaint.

B. Factual Background

The Court takes the relevant facts primarily from the parties'Local Rule ("L.R.") 56.1 statements*fn3 Defendant' s Statement of Facts ("Def. SOF") [145], Plaintiff's Response to Defendant' s L.R. 56.1 Statement and Statement of Additional Facts ("Pl. SOF") [161], and Defendant' s Response to Plaintiff's Statement of Additional Facts ("Def. Resp.") [170].*fn4

Plaintiff first was employed by the City as a seasonal motor truck driver in 1996. Def. SOF ¶ 2. In June 1998, the City hired Plaintiff as a full-time motor truck driver for the Department of Streets and Sanitation ("DSS"). Def. SOF ¶ 2. While he was employed by the City, Plaintiff was a member of the State & Municipal Teamsters, Chauffeurs & Helpers Union Local 726, which has a collective bargaining agreement (CBA) with the City of Chicago. Def. SOF ¶ 67.

1. Relevant City of Chicago Personnel Rules and the Ethics Ordinance

The City of Chicago has promulgated various Personnel Rules. Personnel Rule XVIII governs disciplinary actions and procedures for career service employees. Section 1 of Personnel Rule XVIII provides that certain conduct, "when engaged in by an employee, will result in disciplinary action which may include discharge." Def. SOF ¶ 10. The prohibited conduct includes: "(6) Failing to disclose any information requested or providing a false or misleading answer to any question in any application, questionnaire, information form or other document provided by the City"; "(8) Making false, inaccurate or deliberately incomplete statements in an official inquiry, investigation or other official proceeding"; "(15) Engaging in any act or conduct prohibited by the Municipal Code of the City of Chicago, the Illinois Compiled Statutes, applicable laws of other states, or federal statutes"; "(31) Using the office, work site, work locations, work vehicle, work tools or work materials and supplies to conduct a secondary business, trade or occupation; "(43) Failure to comply with the requirements of secondary employment as delineated in Personnel Rule XX, Section 3"; "(45) Any act or conduct in violation of, or failing to perform any duty required by, the Ethics Ordinance, Chapter 2-156 of the Municipal Code of Chicago, as amended"; and "(50) Conduct unbecoming any officer or public employee." Def. SOF ¶ 10.

Personnel Rule XX, Section 3 relates to outside employment, which is defined as "any paid employment performed by an employee in addition to his or her employment with the City." The rule also requires "[a]ny employee desiring to perform outside employment [to] first file a request in writing with her or his department head for permission to engage in outside employment."

The Ethics Ordinance, which appears at Section 2-156-110 of the Chicago Municipal Code, provides, in relevant part, that: "no elected official or employee shall have a financial interest in his own name or in the name of any other person in any contract, work or business of the city." See Def. SOF ¶ 8; Chi., Ill. Municipal Code § 2-156-110. The Municipal Code expressly excludes from the definition of "financial interest" "any interest of the spouse or domestic partner of an official or employee which interest is related to the spouse' s or domestic partner's independent occupation, profession or employment." Chi., Ill. Municipal Code § 2-156-010(l).

2. Dean Trucking

In mid 2000, Plaintiff's wife, Gloria Harris, started a trucking company, Dean Trucking. Pl. SOF ¶ A3. Mrs. Harris was the president, sole shareholder, and sole director of Dean Trucking. Pl. SOF ¶ A3. Between 2001 and 2004, Dean Trucking did business with the City pursuant to contracts known as the Hired Truck Program. Ex. 21 to [162] at 26 (3/14/07 HR Board Tr.).

In March 2004, Dean Trucking was suspended from the Hired Trucking Program. Ex. 17 to [162] at 67. Dean Trucking was notified of the suspension by letter dated March 2, 2004 and signed by Bob Benson ("Benson"), Hired Truck Program Manager. Id. Some time after the suspension, Mario Esquivel ("Esquivel"), a Field Analyst in the City's Office of Budget and Management, and Benson exchanged a number of e-mails regarding Dean Trucking. Def. SOF ¶ 17-18; Pl. SOF ¶ A21, A27.*fn5 In that e-mail chain, Esquivel referred to Plaintiff's wife as "the mother trucker," and Benson joking asked whether Plaintiff and his wife were dead. Id.

Dean Trucking stopped doing business in 2004. Pl. SOF ¶ A25.

3. Media Coverage and the Inspector General's Investigation

In late March 2005, the Chicago Sun-Times published articles referencing Plaintiff and his alleged connections to Dean Trucking. Def. SOF ¶ 14. One of those articles indicated that the City Inspector General was investigating Plaintiff. Pl. SOF ¶ A30. At the time that the articles were published, Lisa Schrader held the position of public information officer in the Office of Budget and Management. Schrader Dep. at 6. At her deposition, Schrader testified that she spoke to Chicago Sun-Times reporters prior to March 2005, but that she did not recall speaking to reporters regarding Plaintiff or Dean Trucking. Schrader Dep. at 54-55.

Shortly thereafter, in April 2005, Kristopher Collins Brown ("Brown"), an investigator with the City's Inspector General's Office, was assigned to investigate Plaintiff and Dean Trucking. Def. SOF ¶ 14. The Inspector General' s Office investigates the performance of governmental officers, employees, functions and programs, either in response to complaint or on the inspector general' s own initiative, in order to detect and prevent misconduct, inefficiency and waste within the programs and operations of the city government. Def. SOF ¶ 13.

In connection with his investigation, Brown and his supervisor, Stephanie Lionts, interviewed Plaintiff on September 9, 2005. Def. SOF ¶ 28. That interview was transcribed by a court reporter. Def. SOF ¶ 28.

In a summary report dated June 27, 2006, Brown concluded, based on his investigation, that Plaintiff had violated Personnel Rule XVIII, Section 1, Paragraphs 6, 8, 31, 43 and 45, and recommended that Plaintiff's employment be terminated. Def. SOF ¶ 37; Attach. 8 to Ex. N to [145] (Summary Report). The report listed the following specific violations: violation of Paragraph 6 by "fail[ing] to disclose and update his Dual Employment Reports"; violation of Paragraph 8 by "den[ying] that he ever filed or was required to file a Dual Employment Report related to his work for Dean Trucking"; violation of Paragraph 31 by "[keeping] and us[ing] a Dean Trucking radio in his City sweeper"; violation of Paragraph 43 by "fail[ing] to disclose his employment with Dean Trucking"; and violation of Paragraph 45 by "violat[ing] * * * the rules regarding secondary employment rule and financial interest in city business." Attach. 8 to Ex. N to [145] (Summary Report). The Inspector General' s Office forwarded this recommendation, along with the investigative file, to the DSS and the Department of Law. Def. SOF ¶ 37.

4. The Advisory Opinion Issued by the Board of Ethics

After receiving a copy of the Inspector General's report, the Law Department requested that the Board of Ethics determine whether Plaintiff had violated the City's Ethics Ordinance, which is codified at Section 2-156-110 of the Chicago Municipal Code. Ex. V to [145] at 1 (Board of Ethics Advisory Opinion).*fn6 The Board of Ethics based its analysis on a summary of facts provided by Assistant Corporation Counsel Hillina Tamrat. Def. SOF ¶ 38. On October 20, 2006, the Board of Ethics issued an Advisory Opinion opining that, based on the facts provided by the Law Department, Plaintiff had violated the Ethics Ordinance "by having a financial interest -- in the name of another -- in City business by virtue of the participation of Dean Trucking in the Hired Truck Program." Def. SOF ¶ 39; D's Ex. V at 1. The Board of Ethics concluded that the financial interest was not related to Mrs. Harris' s "independent occupation, profession or employment." D' s Ex. V at 10.

5. Plaintiff's Termination

Tenaya Williams ("Williams"), the then-Assistant Commissioner of the DSS, reviewed the Inspector General' s recommendation and the Ethics Board' s Advisory Opinion regarding Plaintiff and Dean Trucking and decided to initiate Plaintiff's termination process. Def. SOF ¶ 41. On November 29, 2006, Plaintiff received a notice that he was required to meet with Williams the next day regarding his employment status, and that his union representative had been informed of the meeting. Def. SOF ¶ 42. On November 30, 2006, Plaintiff and his union representative met with Williams. Def. SOF ¶ 43. At that meeting, Williams gave Plaintiff a copy of the Inspector General' s report, the Board of Ethics Advisory Opinion, and a document entitled "Statement of Charges and Explanation of Evidence." Def. SOF ¶ 44. Williams informed Plaintiff that he had five days to response to the charges. Def. SOF ¶ 44.

On December 7, 2006, Plaintiff delivered a letter addressed to DSS Commissioner Picardi stating that he "den[ied] the charges and wish[ed] to pursue [the] matter further." Def. SOF ¶ 46. Shortly thereafter, Plaintiff received a letter dated December 12, 2006 notifying him that his employment with the City was terminated, effective that day. Def. SOF ¶ 47.

6. Appeal to the Human Resources Board

The Human Resources Board ("HR Board"), which exists pursuant to City of Chicago Municipal Code Section 2-74-040, consists of three members who are appointed by the mayor for five-year terms. Def. SOF ¶ 48. The HR Board conducts hearings of appeals by career service employee of discharge, demotion, or suspension for a period of more then ten days upon the request of the employee. Def. SOF ¶ 48. Plaintiff appealed his discharge to the HR Board. Def. SOF ¶ 49.

Hearing Officer Joseph Chico presided over the HR Board hearing regarding Plaintiff's discharge on March 14, 2007, March 22, 2007, April 19, 2007, and May 17, 2007. Def. SOF ¶ 49. Plaintiff was represented by an attorney at the hearing, presented witnesses, cross-examined the City' s witnesses, and testified in his own defense. Def. SOF ¶ 49. Hillina Tamrat represented the City at the hearing. Def. SOF ¶ 49. A number of witnesses, including Brown, appeared as witnesses at the hearing, and were cross-examined by Plaintiff's attorney. Def. SOF ¶ 49. On June 21, 2007, Hearing Officer Chico issued a Hearing Officer' s Report to the HR Board. Ex. CC to [145] (Hearing Officer Report).*fn7 In that report Hearing Officer Chico concluded that Plaintiff "engaged in improper and unethical conduct because [he] had an economic interest in Dean Trucking * * * because [he] advised and consulted with Ms. Gloria Dean Harris, his wife, regarding company business." Exhibit CC to [145], at 9. Hearing Officer Chico also concluded that Plaintiff "drove trucks for Dean Trucking Company and * * * failed to notify the Department of his dual employment with Dean Trucking Company which is in violation of the City of Chicago, Personnel Rules and Standards." Exhibit CC to [145], at 9. Based on these findings, Hearing Officer Chico recommended that Plaintiff's discharge be upheld. Def. SOF ¶ 50.

Plaintiff requested oral argument before the full board, which was taken on August 21, 2007. Def. SOF ¶ 50. After oral argument, the HR Board upheld Plaintiff's termination. Def. SOF ¶ 50; Ex. ...

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