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Alex Gbur v. City of Harvey

December 19, 2011

ALEX GBUR, PLAINTIFF,
v.
CITY OF HARVEY, ILLINOIS, AN ILLINOIS MUNICIPAL CORPORATION,
ERIC KELLOGG, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR,
ANDREW JOSHUA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

Alex Gbur, a white male, was a policeman for the south suburban City of Harvey, beginning in 2001. In April 2003, Harvey elected an African-American mayor -- the previous mayor had been white -- and Mr. Gbur feels it was no coincidence that his career took a turn for the worse around that time. He was disciplined on a number of occasions, and his employment was finally terminated on March 21, 2007. He filed this lawsuit against the City of Harvey, Mayor Eric Kellogg, and the police chief, Andrew Joshua, who is also African-American and was appointed to his position by the mayor shortly after the election.

Under Count I of his second amended complaint, Mr. Gbur charges the defendants with "race discrimination in violation of Title VII." Mr. Gbur alleges that he was suspended without pay and subsequently discharged because he is white, while similarly situated African-American officers were treated more favorably when they committed similar or more severe misconduct. (Second Amended Complaint, ¶¶ 13-21). Mr. Gbur also claims the defendants: terminated white officers from their employment; rehired African-American police officers who had been discharged or resigned in lieu of discharge for disciplinary reasons; demoted white officers and promoted less qualified African-American officers in their place; disciplined white officers more harshly than African-American officers; and permitted a hostile work environment that subjected white officers to racial epithets and unsafe work assignments. (Second Amended Complaint, ¶ 21).*fn1

Mr. Gbur charges that defendants with "First Amendment violations pursuant to 42 U.S.C. §1983." He says that when he filed a charge of discrimination with the Equal Employment Opportunity Commission in March 2006, he was treated differently and suffered adverse job actions. (Second Amended Complaint, ¶¶ 28-29).

He also claims that when he testified regarding his experiences during a Department of Justice investigation into charges of discrimination in Harvey's police department, he suffered retaliation in the form of threats of termination, denial of vacation days, provision of unsafe equipment, and unsafe work assignments. (Second Amended Complaint, ¶¶ 30-33).

Mr. Gbur adds that, after he supported a rival candidate for mayor against defendant Eric Kellogg, the incumbent, he suffered retaliation, including: threats of termination, denial of vacation days, provision of unsafe equipment, and unsafe work assignments, termination, and not being invited to union meetings with the mayor. (Second Amended Complaint, ¶¶ 34-35). He also claims to have been shot at in an attempted homicide by a relative of Mayor Kellogg, who was later apprehended by the Illinois State Police. (Second Amended Complaint, ¶¶ 36-38). Mr. Gbur states that the mayor and the chief of police are policymakers for the City of Harvey, and that it is a custom and practice of the city to retaliate against those who publicly express opposition to the city regarding matters of public concern.

The defendants have moved for summary judgment. They argue that this court does not have jurisdiction over Mr. Gbur's Title VII and §1983 claims pursuant to the Rooker-Feldman doctrine because he challenged his termination in state court proceedings. (Defendants' Memorandum, at 3-4). They also argue that, for the same reason, res judicata precludes Mr. Gbur's claims of discrimination and retaliation regarding his suspension and subsequent termination, and the investigation into his conduct that precipitated his suspension and termination. (Defendants' Memorandum, at 4-8). The defendants also contend that Mr. Gbur failed to exhaust his administration remedies as to his claims that he was subjected to a hostile work environment and the discriminatory rehiring of terminated African-American police officers. (Defendants' Memorandum, at 2-3). In addition, they contend that Mr. Gbur cannot show that his termination was discriminatory, (Defendants' Memorandum, at 8-14), that Mr. Gbur has no cognizable First Amendment claim, (Id., at 15-18), and that he cannot establish a claim against the city under Monell. (Id., at 18).

I.

A.

Summary Judgment At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. R. Civ. P. 56(c); Scott v. Harris, 550 U.S. 372, 380 (2007). Once the moving party has made a properly supported motion for summary judgment, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)(footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

B.

Local Rule 56.1 As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. Local Rule 56.1 requires a party seeking summary judgment to include with its motion "a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law." Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008). Each paragraph must refer to the "affidavits, parts of the record, and other supporting materials" that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005) The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both "a response to each numbered paragraph in the moving party's statement," Local Rule 56.1(b)(3)(B), and a separate statement "consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment," Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); Bay Area Business Council, Inc., 423 F.3d at 633.

If the moving party fails to comply with the rule, the motion can be denied without further consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n.1 (7th Cir. 2003). If the responding parting fails to comply, its additional facts may be ignored, and the properly supported facts asserted in the moving party's submission are deemed admitted. Local Rule 56.1(b)(3)(C); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008); Cracco, 559 F.3d at 632; Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). District courts are "'entitled to expect strict compliance'" with Rule 56.1, and do not abuse their discretion when they opt to disregard facts presented in a manner that does follow the rule's instructions Cracco, 559 F.3d at 632; Ciomber, 527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). The court is not required to hunt for evidence in the record that supports a party's case if a party fails to point it out; that is counsel's task. See Bay Area Business Council., 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission).

The defendants have pointed out what they perceive as problems with some of the evidence Mr. Gbur has cited to in support of his Local Rule 56.1 facts. The evidence a party relies upon to stave off summary judgment must be admissible evidence. Sow v. Fortville Police Dept., 636 F.3d 293, 301 (7th Cir. 2011); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009); Galdikas v. Fagan, 342 F.3d 684, 695 (7th Cir.2003) (parties cannot rely on inadmissible hearsay in summary judgment opinions). A fair portion of Mr. Gbur's evidence is not. There is hearsay -- newspaper articles, bits of testimony, and affidavits, for example -- that Mr. Gbur has improperly relied upon to prove the truth of the matters asserted. See Fed.R.Evid. 801(c); Chi. Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 654 (7th Cir.2001)("The evidence consists of a newspaper article, which is inadmissible hearsay ..."); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.1997)(newspaper article inadmissible hearsay in summary judgment proceedings). And there is some unauthenticated evidence, such as a police manual, disciplinary reports, and a collective bargaining agreement. See Fed.R.Evid. 901; Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir.2006); Scott v. Edinburg, 346 F.3d 752, 760 n. 7 (7th Cir.2003); Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.2001). These problems are addressed, as necessary, throughout this opinion.

II.

FACTS Mr. Gbur began his career as a patrol officer in September of 2001. (Defendants' Rule 56.1 Statement ("Def.St."), ¶ 10; Gbur Dep., at 13). On November 18, 2002, Sergeant Eric Douglas, a white male, issued a disciplinary action memorandum to Gbur for failing to perform a pre-shift systems test of his department-issued WM Pro Wireless Transmitter Azden camera and microphone. (Def.St., ¶ 10; Gbur Dep., at 31; Ex. 1). This was several months before Mayor Kellogg was elected. The memorandum stated that Mr. Gbur violated sections 2.41.01 (titled, "Violation of the Rules") and 2.41.10 (titled, "Incompetence") of the Harvey Police Department's Rules and Regulations ("Rules and Regulations") (Def.St., ¶ 10; Gbur Dep. Ex.1). As a result of this incident, Mr. Gbur was suspended without pay for one day. (Def.St., ¶ 10; Gbur Dep., at 31; Ex. 1). Gbur served that suspension. (Gbur Dep. 31.)

On November 9, 2002, still a few months before the election, Mr. Gbur was assigned to transport five prisoners to the Sixth District Markham Court lockup for bond hearings. (Def.St., ¶ 12; Gbur Dep. Ex. 1). As Mr. Gbur was getting the prisoners in the van, one of the prisoners escaped his handcuffs and ran away. (Def.St., ¶ 12; Gbur Dep., at 35; Ex. 1). After securing the four other prisoners in the van and advising dispatch of what had happened, Mr. Gbur pursued the escaped prisoner on foot. (Def.St., ¶ 12; Gbur Dep., at 35). He found the prisoner four blocks away, running down an alley, and apprehended him. (Def.St., ¶ 12; Gbur Dep., at 35).

As a result of this incident, on November 20, 2002, Sergeant Gerald Townsend issued a disciplinary action memorandum stating that Mr. Gbur "failed to exercise due caution at the start by not using safety precautions already in place." (Def.St., ¶ 13 Gbur Dep. Ex. 1). The memorandum explained that he should have pulled his van all the way into the garage, closed the door and taken the time to make sure each individual prisoner was properly secured in handcuffs before exiting the station lockup area, that he could have gotten assistance from the two on-duty detention officers, and that he endangered the safety of the other prisoners and the public by leaving the other prisoners in the locked van while he pursued the escaped prisoner. (Def.St., ¶ 13 Gbur Dep. Ex. 1). Sergeant Townsend indicated Mr. Gbur violated section 2.41.01, section 2.41.07 (titled, "Neglect of Duty"), Section 2.41.10, and section 2.41.57 (titled, "Care and Custody of Prisoner") of the Rules and Regulations. (Def.St., ¶ 13 Gbur Dep. Ex. 1). As a consequence, Mr. Gbur was issued a suspension of five days without pay. (Def.St., ¶ 13 Gbur Dep. Ex. 1).

Mr. Gbur had another gaffe that same day. After filling up his squad car with fuel, he pulled away from the pump while the nozzle was still in his tank, ripping the nozzle off the hose. (Def.St., ¶ 11; Gbur Dep., at 32; Ex. 1). Sergeant Willie Applewhite, an African-American male, issued the disciplinary action memorandum for this incident, which stated that Mr. Gbur violated section 2.41.10 of the Rules and Regulations. (Def.St., ¶ 11; Gbur Dep. Ex. 1). This resulted in a three-day suspension without pay. (Def.St., ¶ 11; Gbur Dep. Ex. 1).

The next day, November 21st, Mr. Gbur failed to attend his weapons qualification. He got another disciplinary action memorandum -- this one from Sergeant Douglas -- which stated that Mr. Gbur violated section 2.41.01, section 2.41.10, and section 2.41.16 (titled, "Obedience to Orders") of the Rules and Regulations. (Def.St., ¶ 14; Gbur Dep. Ex. 1). This cost Mr. Gbur one day off without pay. (Def.St., ¶ 14; Gbur Dep. Ex. 1).

Eric Kellogg had been Mr. Gbur's football coach in high school. (Gbur Dep., at 20). When the election rolled around the following spring, Mr. Gbur did not support him in his run for mayor. (Def.St., ¶ 16; Gbur Dep., at 21). At his deposition, he initially claimed this was because he was on probationary status and he was afraid of losing his job. (Plaintiff's Rule 56.1(b)(3) Response ("Pl.Rsp."), ¶ 16; Gbur Dep., at 21). But he had to admit that his probation period had ended in September of 2002, six months before the election. (Gbur Dep., at 20-21).

Once he was elected Mayor, Mr. Kellogg appointed an African-American male, Andrew Joshua, as chief of police. (Def.St., ¶ 4, 17; Joshua Dep., at 9, 11). Mr. Joshua began his career in Harvey's police department as an officer in 1987. (Def.St., ¶ 4; Joshua Dep., at 9). He was promoted to the position of juvenile officer in 1996 and, from 1996 to 2001, he was commander of investigations. (Def.St., ¶ 4; Joshua Dep., at 9). According to Mr. Joshua, before the 2003 election, Mayor Kellogg promised him he would appoint him chief if he won. (Plaintiff's Statement ("Pl.St.)", ¶ 6; Joshua Dep., at 10-11). Mayor Kellogg doesn't recall his promise to Mr. Joshua. (Kellogg Dep., at 21-22). Mayor Kellogg said that he "believe[d] he could have been" a campaign supporter. (Kellogg Dep., at 21).

Mayor Kellogg also appointed Denard Eaves as deputy chief. (Def.St., ¶ 17; Joshua Dep., at 46). Mayor Kellogg "believe[d] he was" one of his campaign supporters as well. (Plaintiff's Statement("Pl.St.)", ¶ 6; Kellogg Dep., at 21). Prior to this appointment, Mr. Eaves was serving a seven-year disciplinary suspension from the Harvey police force. (Pl.St., ¶ 4; Eaves Dep., at 17). At his deposition, Mr. Eaves refused to say what conduct had prompted such a lengthy suspension. He said he couldn't discuss it and referred to "litigation [that] drug [sic] on for seven years." (Eaves Dep., at 17-18). According to the lawsuit -- another racial discrimination suit, this one white-on-African-American -- Mr. Eaves was "allegedly terminated because [he] violated various Harvey police department policies . . . ." Barner v. City of Harvey, 2003 WL 1720027, *3 (N.D.Ill. 2003). The case settled in September of 2006. (Case No. 95-cv-3316, Dkt. #538). So, Mayor Kellogg reinstated Mr. Eaves with a significant promotion while the question of whether his termination was warranted or racially motivated was still an open question.

Mayor Kellogg brought several other African-American officers back from disciplinary terminations: Merritt Gentry, Sam White, Angela Avant, and Darnell Kell. (Pl.St., ¶ 4). The Mayor may have rued that bit of largesse; Mr. Keel and Mr. Gentry later sued him and the city for depriving them of employment benefits and promotional opportunities without due process. Keel v. Village of Harvey, 2011 WL 249435 (N.D.Ill. 2011). At his deposition, the Mayor explained his amnesty policy this way:

Q. Okay. Now, when you appointed Denard Eaves as the deputy chief back in April of 2003, were you aware that he had previously been suspended by the Harvey Police Department?

A. I was aware of a lot of unfair or racially motivated things that took place in the prior administration that was based on retaliation and harassment, so I certainly was aware of some of the things that was [sic] bogusly trumped up against Mr. Eaves.

Q. So you believe that Mr. Eaves was -- that his term -- his previous discipline or termination was racially motivated?

A. Again I can only speak to the fact that the previous administration under the direction of Mr. Mayor Graves didn't conduct city business in a manner that was fair and equitable.

Q. And were you aware of the fact that [Mr. White] was previously terminated by the Harvey Police Department prior to April of 2003?

A. I was also -- and the record will reflect that my license was suspended on bogus charges by the same kangaroo court that was doing those suspensions. So the individuals that was [sic] issuing the -- the suspensions, to me, certainly were not men of character, honor. And then so certainly those individuals might've had some blemishes that was [sic] created from the previous administration that was [sic] based on race, harassment and retaliation, so certainly they probably had some -- some issues. As an alderman, I had issues with them, too, so it -- it wouldn't surprise me.

Q. Did you have personal knowledge or any facts that would lead you to believe that Mr. White was terminated from the previous administration because of race?

A. I can only speak on my experiences and the way that I was treated as an alderman and some of the other things that I observed as alderman.

(Pl.St., ¶ 7; Kellogg Dep., at 22, 27-28). The four reinstated officers were immediately given the rank of commander. (Pl.St., ¶ 5; Ex. 17). According to Mr. Joshua, these "promotions' came directly from the mayor. (Pl.St., ¶ 5; Joshua Dep., at 88, 107). At the same time, three former commanders -- all white -- were demoted to the rank of sergeant. (Pl.St., ¶ 4; Ex. 17). On the personnel orders, no reasons are given for any of these moves. (Pl.St.; Ex. 17).

Now back to Mr. Gbur's career. Things didn't start out so badly after the election. Shortly after he was elected, Mayor Kellogg called Mr. Gbur at home and offered him an assignment in investigations -- a step up -- which he accepted after a bit of deliberation. (Def.St., ¶ 20; Gbur Dep., at 18-19). But the defendants' evidence is conflicting on this point because they also point to testimony from Mr. Joshua that it was his decision to promote Mr. Gbur. (Def.St., ¶ 19; Joshua Dep., at 35).

It wasn't long before Mr. Gbur became uncomfortable in the new position and began asking for a reassignment to patrol, in December 2003. (Def.St., ¶ 22; Gbur Dep., at 18). Mr. Gbur then expressed interest in the canine division to Mr. Joshua. (Def.St., ¶ 4; Joshua Dep., at 9). Mr. Joshua placed him in the next available class, and he became a canine officer in March 2004. (Def.St., ¶ 19, 22; Gbur Dep., at 16-18; Joshua Dep., at 9). This promotion came with an extra hour of pay per day. (Def.St., ¶ 22; Joshua Dep., at 118; Gbur Dep., at 15).

The promotion also came after another disciplinary problem for Mr. Gbur. On November 15, 2004, Sergeant Kevin Ramsey issued a disciplinary action memorandum because Mr. Gbur had failed to meet the minimum work standards for the month of October 2004 as a patrol officer. (Def.St., ¶ 23; Gbur Dep., at 39; Ex. 1). According to Sergeant Ramsey's memorandum, this was a violation of Section 2.41.10 of the Rules and Regulations. (Def.St., ¶ 22; Gbur Dep. Ex. 1). Mr. Gbur was given a written reprimand. (Def.St., ¶ 22; Gbur Dep., at 39; Ex. 1).

On January 27, 2005, Sergeant Andrew Bell issued a disciplinary action memorandum stating that Mr. Gbur had failed to report to his assignment at Brooks Jr. High School. (Def.St., ¶ 24; Gbur Dep., at 40; Ex. 1). That constituted a violation of section 2.41.01 and section 2.41.07 of the Rules and Regulations. (Def.St., ¶ 24; Gbur Dep. Ex. 1). While the memorandum stated that Mr. Gbur would be suspended without pay for one day, Mr. Gbur testified that he was actually paid for the day that he was suspended. (Def.St., ¶ 24; Gbur Dep., at 42; Ex. 1). Mr. Gbur does not know of any other patrol officers who failed to show up for assignment at the junior high school. (Def.St., ¶ 24; Gbur Dep., at 43).

Mr. Gbur failed to show up for court appearances on December 8, 2004, and January 12, 2005, and did not call in. (Def.St., ¶ 25; Gbur Dep., at 44; Ex. 1; Kellogg Dep., at 44). Sergeant James Brooks, an African American, wrote him up on February 18, 2005, for violating section 2.41.01, section 2.41.10, and section 2.41.37 (titled, "Court Attendance and Conduct") of the Rules and Regulations. (Def.St., ¶ 25; Gbur Dep. Ex. 1). It cost Mr. Gbur a day's suspension without pay. (Def.St., ¶ 25; Gbur Dep. Ex. 1). Mr. Gbur says he was at court, but there was no court reporter to sign in with. (Gbur Dep., at 45). He testified that he believed Lionel Smith, an African-American male, also received a write-up for the same thing. (Def.St., ¶ 25; Gbur Dep., at 45). Mr. Gbur says he filed a grievance regarding the discipline but "never heard back on any of it." (Gbur Dep., at 45).

In 2005, Mr. Gbur and some other police officers spoke with Sandra Alvarado, the chief of police's assistant, to complain that he and some others weren't "getting a fair shake" in terms of appointments and tell her that they were going to have to file a grievance. (Def.St., ¶ 26; Gbur Dep., at 60). Mr. Gbur says that Ms. Alvarado replied, "man, fuck all them white mother fuckers. They-they used to be part of Nick Graves' clique, and now they hate it that they ain't part of Kellogg's, and that's too bad. I don't-I don't care about them." (Def.St., ¶ 26; Gbur Dep., at 60). Ms. Alvarado denies making this comment. (Def.St., ¶ 26; Alvarado Aff. ¶ 13).

On April 6, 2006, Mr. Gbur spoke with investigators from the Department of Justice who had come in to look into charges of racial discrimination in Harvey's police department. (Def.St., ¶ 27; Gbur Dep., at 62). He told the interviewers that Deputy Chief Eaves and Chief Joshua referred to him as "white boy." (Def.St., ¶ 27; Gbur Dep., at 63). At some point, Mr. Gbur told an attorney for the City of Harvey that he felt that there was racial discrimination occurring in Harvey's police department. (Def.St., ¶ 28; Gbur Dep., at 65). He explained that "Mayor Kellogg took care of me when he first came in or wanted to and am I going to have to worry about them coming back at me or, you know, me losing my job . . . ." (Def.St., ¶ 28; Gbur Dep., at 65). That attorney told Mr. Gbur that they couldn't fire him and that the attorney would advise them that it would be illegal to do so. (Def.St., ¶ 28; Gbur Dep., at 65). Mr. Gbur hired an attorney on April 23 or 24, 2006, who gave him EEOC forms that he and other officers could fill out if they felt they had been discriminated against by Harvey. (Def.St., ¶ 29; Gbur Dep., at 66).

On May 8, 2006, Commander Annette Avant issued a disciplinary action memorandum stating that Mr. Gbur had failed to appear at Markham Court for his scheduled court day on April 3, 2006. (Def.St., ¶ 30; Gbur Dep., at 46; Ex. 1). Commander Avant wrote that Mr. Gbur violated section 2.41.01, section 2.41.10, section 2.41.16, and section 2.41.37 of the Rules and Regulations. (Def.St., ¶ 30; Gbur Dep.; Ex. 1). As a result, Mr. Gbur was suspended without pay for one day. (Def.St., ¶ 30: Gbur Dep.; Ex. 1). Apparently immediately after that, on the same day, Mr. Gbur filed a charge with the EEOC alleging his employer discriminated against him based on his race and color. (Def.St., ¶ 31; Gbur Dep., at 67--68; Ex. 2). Specifically, the charge stated:

1. I have been employed as a police officer by the City of Harvey from 10 Sept 2001 to the present. I am a white male.

2. Starting in about 2003, the City of Harvey implemented a practice of filling vacant supervisory positions in its police department with African American and Hispanic persons.

3. I am qualified to be promoted to sergeant but I have not been able to apply for that promotion because of the above referred employment practice. (Def.St., ¶ 31; Gbur Dep.; Ex. 2). Mr. Gbur agrees that he was not making a hostile work environment or retaliation charge. (Def.St., ¶ 31; Gbur Dep., at 68; Ex. 2; Pl.Rsp., ¶ 31).*fn2

Before he filed his EEOC charge, Mr. Gbur told Chief Joshua what he was going to do. (Def.St., ¶ 32; Gbur Dep., at 150). The chief told Mr. Gbur he appreciated the heads-up and told him he had a good case. (Def.St., ¶ 32; Gbur Dep., at 151). When asked at his deposition whether he thought Chief Joshua retaliated against him after that, Mr. Gbur testified:

I can't say yes or no. I can't. I mean -- no, I don't. Because I don't feel he did anything specifically to me that I can name right here and now. (Def.St., ¶ 32; Gbur Dep., at 151).

On September 26, 2006, Mr. Gbur was scheduled to work the midnight shift. (Def.St., ¶ 34; Gbur Dep., at 75). He showed up for his shift, and the sergeant in charge assigned him to squad car number 2105, which Mr. Gbur described as an old Crown Victoria with no computer, without functioning dashboard lights, without a dome light, without a spotlight, and with malfunctioning red and blue lights. (Def.St., ¶ 34; Gbur Dep., at 75-77, 99). The other four officers on duty that night were all assigned new Impalas. (Def.St., ¶ 34; Gbur Dep., at 88). The police department had about eight new Impalas, and about 12 older Crown Victorias in its fleet. (Def.St., ¶ 34; Gbur Dep., at 87--88). Mr. Gbur went up the chain of command to request a safer vehicle, but Commander Roy Wells told him to take the car he was assigned. (Def.St., ¶ 34; Gbur Dep., at 76). Mr. Gbur then called Norm Fries, who works for the union, and Fries told him that he would grieve the car assignment in the morning. (Def.St., ¶ 35; Gbur Dep., at 76, 85). According to Mr. Gbur, Mr. Fries also told him he was meeting with Mayor Kellogg, that the meeting was secret, and that Mayor Kellogg "got wind that [Gbur] was backing" Kellogg's opponent, Marian Beck, and was "not too happy" with him. (Def.St., ¶ 35; Gbur Dep., at 77).*fn3

The squad car assignment prompted the union to file a grievance on Mr. Gbur's behalf for faulty and unsafe equipment. (Def.St., ¶ 36; Pl.Rsp., ¶ 36). Mr. Harris, the union president, testified that he took the grievance to Chief Joshua and Deputy Chief Eaves, and that Mr. Eaves said that "the white boys was [sic] mad anyway that we're running the department now." (Def.St., ¶ 36; Harris Dep., at 21). Mr. Harris further alleges that Mr. Eaves said, "This is some more BS from Gbur. We'll take care of that problem with him." (Def.St., ¶ 36; Harris Dep., at 18--19). Chief Joshua did not say anything that was racial at the meeting. (Def.St., ¶ 36; Harris Dep., at 25). Chief Joshua denies hearing Mr. Eaves make the statements alleged by Mr. Harris, but Chief Joshua also said that he didn't recall being at any meeting, and that he thought Mr. Eaves handled the whole matter. (Def.St., ¶ 36; (Joshua Dep., at 43-47). To the contrary, Mr. Eaves denies that he was ever involved with a grievance from Mr. Gbur regarding faulty equipment and that Chief Joshua took care of all grievances. (Def.St., ¶ 36; Eaves Dep., at 51-52). And, Mr. Eaves denies making the comments Mr. Harris attributed to him and said Mr. Harris was an habitual liar. (Def.St., ¶ 36; Eaves Dep., at 58-59). Moreover, Mr. Eaves claims that, during his time of employment with the City of Harvey, he never once made any anti-white comments. (Def.St., ¶ 36; Eaves Dep., at 58).

Mr. Harris, Mr. Fries, Mayor Kellogg, and Detective Archie Stallworth met at Stallworth's house prior to the 2007 mayoral election. (Def.St., ¶ 37; Harris Dep., at 15). Mr. Fries brought up Mr. Gbur's grievance regarding the faulty vehicle with the mayor. (Def.St., ¶ 37; Harris Dep., at 17). Mr. Harris claims that Mayor Kellogg responded, "My administrators will take care of him." (Def.St., ¶ 37; Harris Dep., at 18). Mayor Kellogg denies making this statement. (Def.St., ¶ 37; Kellogg Dep., at 79). According to Mr. Harris, Mayor Kellogg said that Mr. Gbur was "backing" a different mayoral candidate," but didn't make any racial remarks regarding Mr. Gbur. (Def.St., ¶ 37; Harris Dep., at 43, 52).

Mr. Gbur did back Marian Beck in that election, but not in any official capacity. (Def.St., ¶ 38; Gbur Dep., at 71). He helped her make signs for her campaign and handed out literature in January 2007 (Def.St., ¶ 38; Gbur Dep., at 72-73), which was after Chief Joshua filed Mr. Gbur's termination notice on November 1, 2006. (Def.St., ¶ 44; Gbur Dep. 10; Joshua Dep. 48-49). Mr. Gbur never spoke to Mayor Kellogg, or any person in the city administration, regarding the 2007 election campaign, and no one spoke to him. (Def.St., ¶ 38; Gbur Dep. 74-75). Chief Joshua says he was unaware that Mr. Gbur backed Ms. Beck in her run against Mayor Kellogg. In the 2007 election. (Def.St., ¶ 38; Joshua Dep. 65--66). According to Mayor Kellogg, "a host of city employees" worked with candidates that ran against him in 2007. (Def.St., ¶ 39; Kellogg Dep., at 90). When asked to identify someone -- anyone -- by name, Mayor Kellogg said, "[w]ell, again, it -- it -- you know there's -- there were a lot of different names that surfaced." (Def.St., ¶ 39; Kellogg Dep., at 91). When pressed for at least one, he testified:

Well, some individuals gave the name of Sergeant Brooks. Uh, let's see, who else? I even heard names of Commander Wells, I mean I believe, you know. So I mean,

I can't really be 100 percent, you know, but . . . I don't really focus on people who work against me because I -- I just try to, you know." (Kellogg Dep., at 91).*fn4

The beginning of the end of Mr. Gbur's tenure with Harvey's police department came on September 25, 2006. While he was on his way to work in a department vehicle, he stopped at a gas station, and someone told him the car was damaged. When he reported for duty, he informed Commander Wells that "somebody hit [his] vehicle on the back passenger side when it was parked at [his] house." Mr. Gbur told Sergeant Darren Mines, his supervisor, that his vehicle had been struck in a hit-and-run. The two of them went to Mr. Gbur's house in Thornton, Illinois, to view the scene where the damage had occurred, but didn't notice anything on the street. They then went to the Thornton police department to file an accident report. In it, Mr. Gbur stated that the vehicle was struck by an unknown vehicle in the right rear quarter panel while it was parked in front of 117 Indianwood Drive, Thornton, Illinois. (Def.St., ¶ 40; Notice of Discharge).

The next day, September 26th, Mr. Gbur gave Sergeant Mines a written statement that "the only time the vehicle could have been struck, for me not to know about it, was as the squad was parked out infront [sic] of my home." (Def.St., ¶ 40; Notice of Discharge ¶ 10(o)). Sergeant Mines went to Mr. Gbur's house around 4:30 a.m. on September 26, 2006, and observed a red fire hydrant in Mr. Gbur's front yard, from which he collected fragments of what appeared to be a taillight. (Def.St., ¶ 41; Notice of Discharge ¶ 10(q)). Later that day, pictures of the damaged vehicle were taken. They showed a crease in the rear passenger side quarter panel with red paint markings that matched the red paint on the fire hydrant. (Def.St., ¶ 41; Notice of Discharge ¶ 10(t), (u)). Sergeant Mines also observed silver or gray paint transfer on the fire hydrant that matched the silver or gray paint on the damaged squad car. (Def.St., ¶ 41; Notice of Discharge ¶ 10(v)). Around noon, Mr. Gbur was ordered to return to the police station (apparently the Harvey police station although the document does not specify) to submit to urinalysis. (Def.St., ¶ 41; Notice of Discharge ¶ 10(w)).

Mr. Gbur finished his shift during the afternoon of the 26th and went home. He called his supervisor and told him, "there's a red fire hydrant in front of my house and that I couldn't confirm it if this is where the damage came from, but its possible." (Def.St., ¶ 42; Notice of Discharge ¶ 10(y)). Later, Mr. Gbur gave Sergeant Mines a second written statement saying that he "observed that a red fire hydrant that is on the street infront [sic] of said location had minor, possible, gray paint, and possible impact marks on said property." (Def.St., ¶ 42; Notice of Discharge ¶ 10(z)). Mr. Gbur never amended or supplemented the accident report he filed with the Thornton police department. (Def.St., ¶ 42; Notice of Discharge ¶ 10(l)).

Mr. Gbur was suspended on or around October 13, 2006, and his pay was stopped on or around October 24, 2006. (Def.St., ¶ 43; Gbur Dep., at 14). On November 1, 2006, Chief Joshua filed charges with the police commission against Mr. Gbur relating to the September 25, 2006 incident. (Def.St., ¶ 44; Gbur Dep., at 10; Joshua Dep., at 48). The decision to file the termination charges was Chief Joshua's alone. (Def.St., ¶ 44; Joshua Dep., at 49). Mr. Gbur agrees that Chief Joshua's recommendation to terminate Mr. Gbur was not based on race, or made in retaliation for any protected activity he engaged in. (Def.St., ¶ 44; Pl.Rsp., ¶ 44). Mr. Gbur claims that Chief Joshua told him in August 2008 ". . . time's gone by and you haven't wavered; and you know, I think maybe it was an actual accident . . . ." (Pl.Rsp., ¶ 44, Gbur Dep., at 109-110). When Mr. Gbur asked why, if that was the case, he fired him, he claims Chief Joshua told him he "didn't fire [him]; Sandra Alvarado fired [him]. Roy Wells fired [him]. Denard Eaves fired [him]. Mayor Kellogg fired [him]." (Pl.Rsp., ¶ 44, Gbur Dep., at 109-10).

Chief Joshua held a Loudermill hearing*fn5 in his office on November 1, 2006, which Mr. Gbur attended with his attorney. (Def.St., ¶ 45; Gbur Dep., at 10). In addition, the Civil Service Commission of the City of Harvey held two hearings regarding Mr. Gbur's termination: one on January 30, 2007, and one on February 21, 2007. (Def.St., ¶ 45; Gbur Dep., at 10--11). Mr. Gbur was represented by counsel and testified under oath at the January 30, 2007 hearing, and other officers testified in his behalf at the February 21, 2007 hearing. (Def.St., ¶ 46; Gbur Dep., at 11--12).

At the Civil Service Commission hearing,*fn6 Mr. Gbur testified that during the late morning of September 25, 2006, he pulled his vehicle forward and ran over a large ball. He found this out from a neighbor; all he knew at the time was that he heard a loud bang and his car shook. (Def.St., ¶ 47; Notice of Discharge ¶ 10(bb)-(dd)). He further testified that he got out of his vehicle because he thought he had blown a tire, saw the ball, picked it up, returned to the vehicle, and drove away. (Def.St., ¶ 47; Notice of Discharge ¶ 10(ee)). Mr. Gbur said that as he drove away, he "put the car in reverse, hit the fire hydrant and then drove away, but did not know it." (Def.St., ¶ 47; (Notice of Discharge ¶ 10(ff)). Kimberly Newton, Mr. Gbur's neighbor and a witness to the incident, testified that "from all the adrenalin, being upset, thinking he might have blown a tire, he probably thought the car was in drive, and in actuality, he was in reverse and accidentally backed up and hit the fire hydrant." (Def.St., ¶ 48; Notice of Discharge ¶ 10(kk)). When he hit the fire hydrant, it moved. (Def.St., ¶ 48; Notice of Discharge ¶ 10(kk)).

The Commission didn't believe that Mr. Gbur could have struck the hydrant with enough force to move it, yet not know he hit something. (Def.St., ¶ 49; Notice of Discharge ¶ 10(oo)). It also noted that Mr. Gbur lied to his commander, his sergeant, and the Thornton police department when he said it had been a hit-and-run, and had never mentioned running over the ball or the loud bang to anyone. (Def.St., ¶ 49; Notice of Discharge ¶ 10(tt)). The commission recounted Mr. Gbur's past disciplinary problems, and determined that he had violated a laundry list of regulations, including those dealing with conduct unbecoming, incompetence, submitting truthful reports, damaging departmental equipment and vehicles, and reporting accidents. (Def.St., ¶ 50; Notice of Discharge ¶ 10(ww)). The commission ordered him discharged for cause on March 21, 2007. (Def.St., ¶ 50; Notice of Discharge, at 16).

Mr. Gbur filed a complaint seeking only administrative review in the Circuit Court of Cook County naming the City of Harvey Civil Service Commission and Police Chief Joshua as defendants. (Def.St., ¶ 51; Circuit Court Order). The Circuit Court affirmed the order of the Police Commission, which constituted a final judgment on the merits. (Def.St., ¶ 51; Circuit Court Order). Mr. Gbur appealed, and the Illinois Appellate Court also affirmed the order of the Police Commission. (Def.St., ¶ 51; Appellate Court Order).*fn7

Between the hearing and the commission's decision, Mr. Gbur filed a second charge with the EEOC, on March 15, 2007. (Def.St., ¶52; Gbur Dep., at 68; Ex. 3). In this charge, Mr. Gbur alleged that he had been discriminated against based on his race and color, and alleged:

1. I was employed as a police officer by the City of Harvey from 10 September, 2001 until

2006. I am a white male.

2. I was suspended without pay on October 26, 2006 for alleged misconduct and subsequently discharted [sic] for the same alleged misconduct.

3. During the same period, the City of Harvey continued to pay at least two African-American police officers who had engaged in very serious misconduct and has refused to fire several African-American police officers who have engaged in very serious serious [sic] misconduct.

4. I was suspended without pay and discharged because of my race (white).

(Def.St., ¶52; Ex. 3).

After leaving Harvey's police department, Mr. Gbur worked part-time as a patrol officer for the City of Posen for a year. (Def.St., ¶54; Pl.Rsp., ¶ 54). He started working part-time for the City of Markham as a patrol officer on May 1, 2008, working roughly 24 hours each week and being paid by the hour. (Def.St., ¶54; Pl.Rsp., ¶ 54; Gbur Dep., at 5-6). According to Mr. Gbur, Acting Chief Denard Eaves, who replaced Chief Joshua, attempted to "blackball" him by contacting the Markham police department when Mr. Gbur sought employment there. Mr. Eaves denies ever having any contact with any individuals from Posen or Markham's police departments. (Def.St., ¶53; Pl.Rsp., ¶ 53; Eaves Dep. 49--50). But the Markham deputy police chief, Tony DuBois, in a statement taken over the telephone on April 2, 2009 -- that he later signed -- states that Mr. Eaves did contact him to inform him that the Harvey police department fired Mr. Gbur and asked why, given that, the Markham police department was hiring him. (Pl.St., ¶ 42; Ex. 8). The odd thing about this piece of evidence is that the interviewer and Mr. DuBois dated the signatures of that document May 5, 2008, about a year before the interview.

Moreover, it was not signed by a notary until a year after the dates of those signatures -- May 5, 2009. It is, of course, a common mistake for people to write the previous year on documents early in the new year, but May is well into the new year. Still, the Seventh Circuit has stated that "so long as the documents comply with 28 U.S.C. § 1746, and in the interests of justice, a district court should not be unnecessarily hyper-technical and overly harsh on a party who unintentionally fails to make certain that all technical, non-substantive requirements of execution are satisfied." Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985).*fn8

Apart from the oddity of the DuBois statement, Mr. Eaves' "attempt[ ] to 'blackball'" Mr. Gbur would not appear to state a claim upon which relief can be granted. Perhaps it has evidentiary significance under Rule 404(b), but that would appear to be its only significance.

III.

ANALYSIS

A.

The Rooker-Feldman Doctrine Does Not Apply In This Case

The defendants begin by arguing that the Rooker-Feldman doctrine bars Mr. Gbur's Title VII and Section 1983 claims. The doctrine derives its name from two Supreme Court decisions decided sixty years apart: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). It is a jurisdictional bar that prohibits federal district courts from reviewing final state court judgments. It springs from the principle that district courts have only original jurisdiction; the Supreme Court alone has appellate jurisdiction over state court judgments. Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 603(7th Cir. 2008).*fn9 Here, the defendants submit that the Title VII and §1983 claims are simply attacks on the state courts' findings that his termination was justified, and thus must be dismissed for want of jurisdiction.

Under the Rooker-Feldman doctrine, lower federal courts lack subject-matter jurisdiction when, after state proceedings have ended, a losing party in state court files suit in federal court complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). In determining whether a federal plaintiff seeks review of a state-court judgment, a court must ask whether the injury alleged resulted from the state-court judgment itself; if it does, Rooker-Feldman bars the claim. Beth-El All Nations Church v. City of Chicago, 486 F.3d 286, 292 (7th Cir. 2007); Centres, Inc. v. Town of Brookfield, Wis., 148 F.3d 699, 701-02 (7th Cir.1998). If the injury is independent of the state-court judgment, or if the federal claim alleges "a prior injury that a state court failed to remedy," Rooker-Feldman is inapplicable. Beth-El, 486 F.3d at 292; Centres, Inc., 148 F.3d at 702. That's what Mr. Gbur is alleging here -- a prior injury that the state court left unremedied -- not an injury that stemmed from the state court proceedings.

Examples of such state court injuries include cases like Golden v. Helen Sigman & Associates, Ltd., 611 F.3d 356 (7th Cir. 2010) and Gilbert v. Illinois State Bd. of Educ., 591 F.3d 896 (7th Cir. 2010). In Golden, the plaintiff lost custody of his daughter through the apparently biased efforts of the court-appointed child advocate, who, he alleged, acted in concert with his estranged wife's attorneys. 611 F.3d at 361. Holding that Rooker-Feldman barred the plaintiff's federal claim, the Seventh Circuit explained: the only injury that [plaintiff] alleges that he has suffered from [the child advocate's] supposedly biased advocacy is the alienation of [his daughter's] affections and a reduction in his custodial rights. These harms flow directly from the fruit of [the child advocate's] efforts: state-court custody orders ...


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