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Rojas v. Town of Cicero

October 14, 2010

MERCED ROJAS PLAINTIFF,
v.
TOWN OF CICERO, LARRY DOMINICK, PRESIDENT OF THE TOWN OF CICERO, IN HIS INDIVIDUAL CAPACITY, DEREK DOMINICK, IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

On October 15, 2008, plaintiff Merced Rojas ("Rojas") filed a complaint against defendants Town of Cicero ("Town"), Larry Dominick, the President of the Town, and Derek Dominick, the Human Resources Director for the Town (collectively "Defendants"), asserting claims under 42 U.S.C. § 1983 for racial discrimination in violation of his rights under the Fourteenth Amendment (Count I) and for political retaliation and violation of his right to freedom of association under the First Amendment (Count II). (Compl. ¶¶ 1, 16, 18; Dkt. No. 144, Rojas Resp. Town SOF ¶ 53.) Currently before the court are the Town's and Derek Dominick's Motions for Summary Judgment (Dkt. Nos. 112, 116). For the reasons explained below, Derek Dominick's Motion is granted and the Town's Motion is granted in part and denied in part.

BACKGROUND

For purposes of the Defendants' Motions for Summary Judgment, the relevant facts of this case are described below in the light most favorable to Rojas. See Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008).

I. The Parties

Plaintiff Merced "Mercy" Rojas worked as a handyman in the Town's Department of Senior Services for eleven years. (Dkt. No. 150, Dominick Resp. Rojas SOF ¶ 1.)*fn1 In that position, his job responsibilities included making minor repairs to the homes of the Town's senior citizen residents. (Rojas Resp. Town SOF ¶ 56.) Rojas and his wife, Ana Maria Montes de Oca-Rojas, are Mexican and Hispanic. (Dominick Resp. Rojas SOF ¶ 6.)

Defendant Larry Dominick is the president of the Town. He was elected to that position in February of 2005 and sworn into office on May 10, 2005. (Rojas Resp. Town SOF ¶¶ 54-55.) As the highest ranking official in the Town, Larry Dominick has the authority to suspend and terminate Town employees. (Dominick Resp. Rojas SOF ¶ 48.)

Defendant Derek Dominick is Larry Dominick's son. He is the Human Resources Director for the Town (Dkt. No. 143, Rojas Resp. Dominick SOF ¶¶ 2, 5) and has held that position since March 31, 2006 (id. ¶ 2). As Human Resources Director, Derek Dominick's duties include taking care of the Town's health insurance, life insurance, pensions, IMF pensions, as well as reviewing payroll. (Id.) Derek Dominick also works with the Town's Office of the Inspector General and the Town's Internal Affairs Department, which are responsible for investigating complaints against Town employees (Rojas Resp. Dominick SOF ¶ 3),*fn2 but he does not personally investigate complaints. (Id. ¶ 4.) Instead, the Town's Office of the Inspector General or Internal Affairs Department inform Derek Dominick of the results of the investigations and provide him a copy of the investigation report, or a portion thereof, to put in the respective employee's personnel file. (Id.) Derek Dominick does not determine whether the proposed discipline in the report is appropriate but only reviews the reports to be aware of what the investigation was about and why the employee was investigated. (Id.)

II. Events Leading Up to Rojas's Termination Rojas's in-laws Own the El Dia Newspaper. (Dominick Resp. Rojas SOF ¶ 10.)

Sometime after Larry Dominick was elected president, El Dia began publishing negative articles about him. (Id.; Town Resp. Rojas SOF ¶ 10.) Rojas and his wife also withdrew their support for Larry Dominick at some point after the 2005 election. (Rojas SOF ¶ 10.) After the negative articles were published in the El Dia newspaper, Larry Dominick openly criticized the Montes de Ocas family and said he was going to "drown" them. (Del Angel Dep. 15:8-18; 32:24-33:3.) He also made references to Montes de Ocas family as "wetbacks," but the record cited to the court does not identify when these latter discriminatory statements allegedly were made (See Rojas Ex. J, Arista Dep. 108:8-109:3.)

In January 2006, Jose Alejandro "Alex" Arista, held the title of Recycling Coordinator for the Town (Rojas Resp. Dominick SOF ¶ 6), but his "real position" was "working for Larry Dominick as a political runner" (Rojas Ex. J, Arista Dep. 33:15-24). Arista's girlfriend, Maricela Guzman also was a resident of the Town. (Rojas Resp. Dominick SOF ¶ 7.) On or before January 25, 2006, Guzman noticed a water leak in her basement and contacted Arista to let him know about the problem. (Id. ¶ 10.) Arista then contacted Rojas's wife, Ms. Montes de Oca-Rojas, to see if Rojas knew anything about plumbing. (Id. ¶ 11.) Rojas's wife informed Rojas about the possible work at the Guzman residence, and Rojas contacted Arista about fixing the leak. (Id. ¶ 12.) Because the Town's handymen are allowed to have side jobs as long as they do not perform work during the hours they are working for the Town, if Rojas performed the plumbing job outside of his regular working hours, which were 8 a.m. to 4 p.m., he would not have violated any Town rules by repairing Guzman's water leak. (Dominick's Resp. Rojas SOF ¶¶ 2, 8.) The parties dispute whether Rojas performed the work after 4 p.m., but at some point on January 25, 2006, Rojas went to Guzman's house to repair the leak. (Rojas Resp. Dominick SOF ¶ 26; Dkt. No. 142, Rojas Opp. Town Mot. 4.)

While at the Guzman residence, Rojas called Ruben Perez, an inspector for the Town's water department who had previously worked with Rojas on side plumbing jobs, to tell him the main valve at the Guzman residence was leaking and that the water need to be shut off to repair the leak. (Rojas Resp. Dominick SOF ¶ 14.) When Perez arrived at Guzman's residence, Rojas was already at the property with the parts and equipment. (Id. ¶ 17.) Rojas repaired the leak, and Guzman paid Rojas with a check for $100. (Id. ¶ 18.)

In April 2006, Larry Dominick saw a Town vehicle parked at a residential address for several hours. (Id. ¶ 39.) He asked Rolando Hernandez, the deputy superintendent of the Internal Affairs Department and the department head of the Internal Affairs Department unit, to find out who was assigned to the vehicle and see how long it was going to be parked at the residence. (Id. ¶¶ 24, 39.) Hernandez performed surveillance on the vehicle and determined that Rojas was driving the car. (Rojas Ex. I, Hernandez Dep. 153:7-156:7.) He then assigned the investigation to Inspector James Klosak, who at that time was an investigator in the Internal Affairs Department. (Rojas Resp. Dominick SOF ¶ 41; Rojas Ex. O, Klosak Dep. 16:22-17:7.) Hernandez informed Klosak that he had received information that Rojas was spending long periods of time at his residence during work hours, and that the purpose of the investigation was to determine whether that information was true. (Rojas Resp. Dominick SOF ¶ 41.)

On or around April 19, 2006, Larry Dominick had a conversation with Jose Del Angel, a precinct captain for Larry Dominick's organization, the Cicero Voters Alliance (see Rojas Ex. H, Del Angel Dep. 8:17-24), regarding Rojas. At that time, Del Angel also was a supervisor in the Town's Parking Enforcement Department. (Id. at 10:15-12:9.) During that conversation, Larry Dominick expressed to Del Angel his belief that "he [Larry Dominick] should fire [Rojas]," and that if he decided against firing Rjoas, Larry Dominick wanted him transferred to Del Angel's department. (Id.)

After Klosak completed his surveillance over Rojas, Klosak prepared a final case summary related to the April 2006 Rojas investigation (Rojas Resp. Dominick SOF ¶ 43), and in July 2006, Rojas received a three-day suspension and an Employee Warning Notice ("Notice"). (Dominick Ex. 7.) The Notice states that "[b]etween April 3, 2006 and April 21, 2006," Rojas was "observed violating various sections of the Town of Cicero Employee Manual and Established Rules of the Senior Services Department." (Id.) Specifically, it identified certain periods of time where Rojas allegedly was "at a residence" and "not working for the benefit of the Town of Cicero . . . without calling in this time-off to [his] supervisor." (Id.) The Notice further accused Rojas of "driving the Town of Cicero's vehicle around the Town of Cicero without being on an assignment and thus for no work purpose . . . without calling in this time to [his] supervisor" (id.), and spending time at "locations which were unrelated to the work [he does] for the Town of Cicero . . . without calling in this time to [his] supervisor" (id.). Finally, according to the Notice, the identified violations did "not account for the times between April 3, 2006 and April 21, 2006 that [he] stopped for lunch at various restaurants in the Town of Cicero without calling in the same to [his] supervisor" and that his supervisor had "previously given [Rojas] a verbal warning about this type of violation." (Id.)

At some point in 2006, Arista spoke with Frank Aguilar about Rojas's work at the Guzman residence. (Arista Dep. 47:3-15.) During Arista's conversation with Aguilar, Aguilar asked Arista for a copy of the check that Guzman wrote to Rojas and told Arista that he would be rewarded for provided Aguilar with the check. (Arista Dep. 47:3-15.) When Arista refused to get a copy of the check, Aguilar told Arista that he could be fired. (Id. at 47:19-48:1.) Arista eventually did provide Aguilar with a copy of the check because he "fear[ed] for [his] safety and [his] girlfriend's safety." (Id. at 48:14-17.) Additionally, Aguilar instructed Arista to write the following on the check: "Mr. President, above is a copy of the check (highlighted) paid by Maricela Guzman to Mercedes Rojas (Ana Maria Montes de Oca-Rojas' husband) for side-job performed on Town working hours." (Rojas Resp. Dominick SOF ¶ 19; Arista Dep. 49:17-50:18.) According to Arista, that statement "was a lie" because Rojas did not perform the work on Town time. (Arista Dep. 51:6-13.) Frank Aguilar had pressured Arista to write false statements on the check because "Larry [Dominick] doesn't want these people here in the Town at all and he's looking to get some-something to get him [Rojas] fired." (Arista Dep. 47:19-48:13.) Frank Aguilar then notified Larry Dominick of Guzman's check to Rojas. (Rojas Resp. Dominick SOF ¶ 19.)

Commander Thomas Boyle of the Internal Affairs Department interviewed Rojas as part of an investigation into Rojas's work at the Guzman residence. (Id. ¶ 22.) During this interview, Rojas told the investigators that "[t]his is all because Larry does not like the negative articles that my father-in-law is publishing in El Dia and wants to find a reason to get rid of us" and "Frank Aguilar knows that Larry wants to get rid of us." (Rojas SOF ¶ 37; see also Rojas Resp. Town SOF ¶ 65.)*fn3 The Internal Affairs Department also interviewed Perez as part of the Rojas investigation. (Rojas Resp. Dominick SOF ¶ 25.)

On or around September 18, 2006, while the investigation into Rojas's work at the Guzman residence was pending, Rojas's wife sent Rolando Hernandez a letter advising Hernandez of her belief that the investigation into her husband was politically motivated and based on the negative articles written in the El Dia newspaper in the recent months concerning the Larry Dominick administration. (Rojas Resp. Dominick SOF ¶ 28; Hernandez Dep., 141:3-142:23; Rojas Ex. BB.) Counsel for Ms. Montes de Oca-Rojas sent a letter dated August 28, 2006, to Town attorney Holly Tomchey complaining of harassment and retaliation against the Town. (Dominick Resp. Rojas SOF ¶ 43; Town Resp. Rojas SOF ¶ 43; Rojas Ex. W.) Counsel for Rojas's wife then sent a second letter, dated October 13, 2006, to Town attorneys, Holly Tomchey and Mike Delgado, again raising Ms. Montes de Oca-Rojas's complaints against the Town. (Dominick Resp. Rojas SOF ¶ 43; Town Resp. Rojas SOF ¶ 43; Rojas Ex. V.)

Shortly before October 16, 2006, Jose Del Angel had a conversation with Larry Dominick regarding Rojas. Larry Dominick told Del Angel that "[h]e was upset about a letter that apparently [Rojas's] wife had sent to the Town." (Del Angel Dep. 22:1-5.) According to Del Angel, Larry Dominick made "comments like I can't believe . . . this chic is threatening to sue us . . . . I should fire her husband" and "I should fire his ass for sending that letter." (Id. at 22:1-13; 22:19-24.) On October 16, 2006, Rojas was terminated from his position (Rojas Resp. Dominick SOF ¶ 34), and Derek Dominick informed Rojas of his termination (id.).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In making this assessment, "[a]ll facts and reasonable inferences are to be construed in favor of the nonmoving party," but "[i]nferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008) (quoting South v. Ill. EPA, 495 F.3d 747, 751 (7th Cir. 2007), and McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004)). "[W]hen confronted with a motion for summary judgment, a party who bears the burden of proof on a particular issue may not rest on its pleading, ...


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