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Gross v. Town of Cicero

August 27, 2010

CLARENCE GROSS, PLAINTIFF-APPELLANT,
v.
TOWN OF CICERO, ILLINOIS, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 9465-John W. Darrah, Judge.

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

ARGUED FEBRUARY 10, 2009

Before CUDAHY, WILLIAMS, and TINDER, Circuit Judges.

Plaintiff Clarence Gross got more than he bargained for when he sued his former employer, the Town of Cicero ("the Town" or "Cicero"), and several related individuals for what he believed to be an unconstitutional firing. The Town countersued and won on a breach of fiduciary duty theory, while defeating Gross's constitutional claims in the process. After a bench trial, Gross was stuck with a judgment of over $300,000, which constituted a forfeiture of his entire salary for over four years of work as a public servant. Gross appeals, challenging everything but the kitchen sink-the denial of his constitutional claims, the merits of the Town's fiduciary duty claim, the rejection of his demand for a jury trial, the judgment amount, and many more. In the end, Gross gets a split victory. We affirm the grant of summary judgment on his constitutional claims, but we reverse summary judgment granted in the Town's favor on its fiduciary duty claim.

I. Background

In 1997, Gross retired as a Cicero police officer and was appointed to a variety of positions within the Town of Cicero's municipal government. He served as Director of Internal Services, Deputy Liquor Commissioner, and a member of the "911 Board." Most important for this case, though, was his involvement with the Board of Fire and Police Commissioners ("BOFPC"), to which the Town President (similar to a mayor) appointed him Hearing Officer and Chairman for a three-year term from 1998-2000, and later for a second term. Gross served the Town of Cicero in some capacity through October 2002, though he was removed from (or not reap-pointed to) certain positions before then. Gross was paid a single annual salary for all his various government positions, which was between around $61,000 and $66,500 annually (he received a little over $50,000 for his service through October 2002).

As Chairman of the BOFPC, Gross oversaw the hiring and discipline of Cicero police officers. Cicero had established screening, evaluation, and hiring procedures. Throughout his tenure, a number of officers were hired to the force.

Gross admitted in his deposition that he hired a dozen or so individuals whom he felt at the time were "unqualified" to be police officers. Many of these individuals had performed poorly on one or more aspects of the evaluation criteria. But he hired them anyway, he testified, because Town President Betty Loren-Maltese told him to. On at least one occasion, Gross hired an individual without notifying the other BOFPC members about the prospective officer's documented poor performance on certain evaluations. Gross also admitted that he never told the other BOFPC members that Loren-Maltese instructed him to make certain hires. Gross viewed Loren-Maltese as his superior and testified that he believed Loren-Maltese had the legal authority to override his appointment decisions. Gross also admitted that he was worried about his and his daughter's employment if he failed to comply with Loren-Maltese's orders: "Town president tells you to hire somebody, sir, you hire them. I didn't wish to be fired. I wasn't going to get into an argument with her. And if I didn't do it, I would be terminated and my daughter would suffer the wrath."

As it turns out, Gross's daughter, Rhonda, had also been hired to the police force during Gross's tenure as Chairman. Shortly after being hired, Rhonda complained to her father that she and other female police officers were suffering sexual harassment, and in some cases abuse, at the hands of police commander Jerold Rodish. In response, Gross claims that he approached Loren-Maltese on six or so occasions to talk with her about these issues. But each time, Gross wouldn't say much. Typically, Gross would come in and tell Loren-Maltese that he wanted to talk about "a situation still going on with Rhonda" or "a problem that's just escalating... regarding Rhonda." And each time Loren-Maltese would tell him that she knew what he was there for, "what it's about," and that she would talk to him later. Gross admitted in his deposition that he never mentioned Rodish, the police department, any of the other female officers, or any allegations of sexual harassment. The last time he broached the issue, Gross claims that Loren-Maltese told him to "just call Eddie," referring to Edward Vrdolyak, an outside lawyer retained to represent the Town in certain matters.

Not getting anywhere with Loren-Maltese, Gross claims he told his daughter to file a charge with the Equal Employment Opportunity Commission ("EEOC"). Rhonda filed a charge in June 2001; the Town was represented by Vrdolyak's law firm. The matter was later settled after the EEOC found, in June 2002, that there was substantial evidence that Rhonda was subjected to sexual harassment.

Around this time, Gross began to lose some of his Cicero posts. Gross claims that Loren-Maltese was responsible for removing him from several positions. Gross was no longer on the 911 Board by October 2001. Then, in January 2002, Gross claims that Loren-Maltese terminated him as Chairman of BOFPC, allegedly prior to the end of his second, three-year term. Loren-Maltese stated that she could no longer trust Gross and his daughter due to "this EEOC thing" and that Rhonda "was lucky she had a job." Finally, in late September 2002, Gross claims that Ramiro Gonzalez, the new Town Presi-dent, terminated him as Deputy Liquor Commissioner and Director of Internal Services. Gross alleges that, after he learned of his termination, he phoned Vrdolyak, who said "I cannot understand why she did this to you." Gross understood "she" to mean Loren-Maltese.

That wasn't the only time Gross talked to Vrdolyak, though. In late 2002 and early 2003, Gross spoke with and wrote letters to Vrdolyak about past compensation Gross had not yet received. Then, several months later, Gross claims that he became involved as a potential witness in litigation against the Town, filed by a man named Moreno. He claims that he talked with the plaintiff's attorneys about what he knew and that the attorneys put him on their witness list. In September 2003, Vrdolyak called Gross and told him, "Your money matter won't be settled until the Moreno matter is settled. Do you understand me?" Gross was never called as a witness, either in court or in a deposition, in connection with the Moreno case. But Gross claims that he still hasn't received his compensation.

Gross sued the Town of Cicero, along with Loren-Maltese, Vrdolyak, and Gonzalez (collectively the "Individual Defendants") under 42 U.S.C. § 1983 for violations of equal protection and free speech under the First and Fourteenth Amendments. Regarding his First Amendment claims, Gross contended that the defendants retaliated against him for (1) approaching Loren-Maltese about Rhonda's "situation"; (2) encouraging Rhonda to file an EEOC charge; and (3) talking with the lawyers in the Morenocase. Gross also alleged a civil rights conspiracy under 42 U.S.C. § 1985(3). Cicero countersued, alleging breach of fiduciary duty and unjust enrichment. The district court exercised supplemental jurisdiction over these state-law claims.

The litigation was contentious, to put it mildly. There were hundreds of docket entries, numerous motions to strike, and, as was apparent from the deposition transcripts, some tension between the lawyers.

Eventually, both sides moved for summary judgment and the district court, for the most part, found for the defendants. The court granted summary judgment for the defendants on all of Gross's claims. Gross won on Cicero's unjust enrichment claim. But the court granted summary judgment in favor of Cicero on the issue of liability on the fiduciary duty claim.

So the case proceeded to trial on the issue of damages from the breach of fiduciary duty. Gross demanded a jury trial but the court denied it. After a bench trial, the court awarded Cicero Gross's entire salary for all four-plus years of service in Cicero government, which totaled $302,473.79.

Gross appeals and raises a slew of arguments. He challenges the district court's decision on his equal protection and free speech claims. He also appeals the court's grant of summary judgment on Cicero's fiduciary duty claim, the denial of his jury demand, and the amount of damages the court awarded, along with half a dozen other quarrels he has with the way the trial on damages was conducted. To decide this case, though, only Gross's First Amendment and fiduciary duty arguments warrant extended discussion.

II. Preliminary Matters

At the outset, though, we must address several matters stemming from the parties' sub-par briefing in this case. In appellate litigation, as in most other aspects of life, rules must be followed. Federal Rule of Appellate Procedure 28(a)(7) requires appellants (and in some cases appellees, under Fed. R. App. P. 28(b)) to include in their briefs "a statement of facts relevant to the issues submitted for review with appropriate references to the record." Elaborating on this rule, this circuit requires that "[n]o fact shall be stated in this part of the brief unless it is supported by a reference to the page or pages of the record or the appendix where that fact appears." Cir. R. 28(c); see also Fed. R. App. P. 28(e). Gross's statement of facts lacks a single citation to the record. Though the Individual Defendants point this out in their response brief, Gross gives no explanation in his reply brief why he failed to cite the record; instead, Gross just hits back at the Defendants' appellate briefs, claiming they contain factual assertions without citations. This kind of tit-for-tat is no way to justify breaking the briefing rules. Gross leaves us no choice but to strike that section of his brief and any assertion that relies solely upon it. See Casna v. City of Loves Park, 574 F.3d 420, 424 (7th Cir. 2009).

The Individual Defendants implore us to go further, though. They contend that Gross's error warrants dismissal of his entire appeal. We think that's a bit draconian for two reasons. First, Gross usually provides some support for his factual assertions in his "argument" section (with one notable exception, which we'll discuss later). He typically cites specific paragraphs in his Local Rule 56.1(b) statement. Those paragraphs, in turn, usually contain appropriate record cites. This method of citation violates our briefing rules, for the rules require litigants to cite directly to the record, as opposed to something like a Rule 56.1 statement. See id. (citing Fed. R. App. P. 28(e) and Cir. R. 28(c)). But because Gross's citations to specific paragraphs in the Rule 56.1 statement usually lead to appropriate citations to the record, he has given us enough to work with that we decline to strike his brief entirely. See id.

Second, when we look at the Defendants' briefs, the proverbial pot-and-kettle idiom comes quickly to mind. The Defendants, too, prefer citing Rule 56.1 statements or like filings, instead of citing the record itself. And though most of the Defendants' factual assertions in their briefs are followed by citations, that's not always the case.

Perhaps most egregious, though, is the Individual Defendants' failure to cite or even acknowledge that the district court previously ruled against them on an argument they raise on appeal. They contend that we should affirm summary judgment simply because Gross failed to comply with Local Rule 56.1. They further point out that, in the district court, they filed a motion requesting that their own statement of facts be deemed admitted and that Gross's response to their statement of facts be stricken. (R. 189.) In their view, "each of the facts submitted in Defendants' Statement of Uncontested Facts is deemed admitted.... [and] [a]s such, Defendants were entitled to summary judgment." (Individual Def.'s Br. 16.) But the Individual Defendants utterly fail to mention that the district court expressly denied that motion. (R. 209.) In addition to the fact that the Defendants have not cross-appealed this ruling, which dooms ...


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