The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
This case involves allegations of race discrimination against the City of Chicago and senior personnel of the Chicago Fire Department ("CFD") stemming from the demotion of Plaintiff Ronald Bates, a former CFD District Chief. Before me are cross-motions for summary judgment on Counts II and III. For the following reasons, Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. I also reverse my December 14, 2009, order reinstating Count I and re-enter summary judgment in favor of Defendant City of Chicago.
This case has a rather complex history in this court that is worth reviewing before getting to the instant motions. In October 2005, Plaintiff filed a four-count amended complaint against the City of Chicago and several individual CFD employees alleging employment discrimination based on race, in violation of Title VII of the Civil Rights Act of 1964 (Count I); deprivation of Fourteenth Amendment rights under color of law, in violation of 42 U.S.C. § 1983 (Count II); interference of contractual rights based on race, in violation of 42 U.S.C. § 1981 (Count III); and intentional infliction of emotional distress (Count IV).
On November 10, 2005, I dismissed Count IV as well as all claims against the individual defendants in their official capacities for reasons stated in open court. On March 16, 2006, I dismissed Counts II against all individual defendants except Defendant Trotter, finding that the other individual defendants were entitled to qualified immunity. I also dismissed Count III in its entirety, finding that Plaintiff had no contractual employment right upon which to base his § 1981 claim. On September 4, 2008, I granted summary judgment on Count I in favor of Defendant City of Chicago, finding that Plaintiff could not make out a prima facie case of discrimination.
On December 14, 2009, I granted Plaintiff's Rule 59 motion to alter judgment and reinstated Count III as to Defendant Trotter and Count I as to Defendant City of Chicago. I based my decision to reinstate Count III on the holding in Walker v. Abbott Labs, 340 F.3d 471 (7th Cir. 2003), where the Seventh Circuit found that an at-will relationship can be sufficiently contractual to support a claim of racial discrimination in promotion and pay under § 1981. I reinstated Count I as to Defendant City of Chicago, finding that Plaintiff had in fact made a sufficient showing that Defendant Trotter's explanation was a pretext for unlawful discrimination. The instant summary judgment motions pertain to Counts II and III against Defendant Trotter.
The Municipal Code and CFD Hierarchy
The City of Chicago Municipal Code (the "Municipal Code") distinguishes between career service and non-career (or "exempt") employees. The Municipal Code does not provide that non-career service employees may be discharged or demoted only "for cause," nor does it establish procedures whereby non-career service employees may challenge their terminations or demotions.The City's personnel rules provide that non-career service employees are at-will employees who "may be disciplined or discharged at any time for any reason or no reason and have no expectation of continued employment." The rules further provide that Department heads "shall expressly have the right to discipline or otherwise take actions concerning a non-Career Service subordinate." The non-career service, "at will" positions of the CFD include firefighters above the rank of Battalion Chief.
The CFD is organized into geographical regions called "Districts," each of which is headed by a District Chief.The Command Structure within a CFD District is, in descending order, as follows: District Chief, Deputy District Chief, Battalion Chief, Captain, Lieutenant, Engineer, Firefighter. The command structure of the CFD above the District level is, again in descending order, as follows: Fire Commissioner, First Deputy Fire Commissioner, Deputy Fire Commissioner, Assistant Deputy Fire Commissioner.
Plaintiff's Employment History
Plaintiff joined the CFD as a firefighter in 1977. He was promoted to the career service ranks of Lieutenant on September 1, 1980; Captain on October 16, 1987; and Battalion Chief on August 1, 1989. Plaintiff was appointed to the exempt rank positions of Deputy District Chief on March 16, 1998, and District Chief of the Sixth District on January 1, 2000. Plaintiff was appointed to District Chief of the Sixth District by then Commissioner James Joyce ("Joyce"), who is Caucasian. Plaintiff retired from his employment with the CFD effective November 13, 2005. He was unable to return from medical leave after one year.
Defendant Trotter's Employment History
On May 1, 2004, Defendant Trotter was appointed as Commissioner of the CFD. He was first hired by the CFD in 1976 as a Fire Paramedic and appointed to Fire Paramedic Area Supervisor in April 1980, to Paramedic District Officer in February 1982 and to Assistant Chief Paramedic in June 1989. He was promoted to Deputy Fire Commissioner in December 1993, and to First Deputy Fire Commissioner in January 2000. He then served as First Deputy Fire Commissioner from January 2000 until approximately May 2001, when he was appointed Executive Director of the City's Office at Emergency Management and Communications ("OEMC"). Defendant remained at OEMC as Executive Director until he was appointed Commissioner of the CFD in May 2004. He served as Commissioner of the CFD from May 2004 until he voluntarily resigned from his employment with the CFD in approximately April 2006.
Commissioner Trotter's Exempt Rank Appointments When Defendant became Commissioner he was authorized to choose his own exempt rank management staff. The exempt rank appointments Defendant made during his tenure as Commissioner were memorialized in the following CFD Personnel Orders: Personnel Order No. 2004-10 (May 24, 2004); Personnel Order No. 2004-10A (May 26, 2004); Personnel Order No. 2005-03 (March 15, 2005); Personnel Order No. 2005-09 (June 29, 2005); Personnel Order No. 2005-16 (August 26, 2005); and Personnel Order No. 2006-02 (January 13, 2006). (Tab K, Defendant Aff. ¶2.) Plaintiff denies that Defendant's exempt rank appointment of Michael Callahan, Caucasian, to the position of District Chief, Third District, apparently replacing Sal Marquez, was memorialized in any of the six CFD Personnel Orders listed in this statement but does not deny that the appointment was made.
In making his personnel decisions, Defendant was looking to appoint individuals who would reflect his "aggressive management style," had "high energy and enthusiasm," and who appeared to be "engaged in what they're doing." Plaintiff states that there is evidence which Defendant City of Chicago withheld in discovery, evidence which would enable Plaintiff to further refute Defendant's purported appointment criteria, but Plaintiff does not deny that the statement is true based on the evidence in his possession. Plaintiff does not explain how he knows the content of evidence he claims is withheld. I strike the denial of statement 15 for this reason. I do note that receiving direction from others as to whom a Commissioner should appoint is not inconsistent with Defendant's stated criteria for appointment.
Defendant explained that his exempt rank appointment process was not "scientific." He went with his "opinion and [his] gut" as to who he wanted in the positions, and relied on his impressions of individuals he had formulated during his interactions with them over his years at the CFD. During these years, Defendant had opportunities to interact with many members of the CFD in a variety of settings, including meetings, training sessions, fire and other emergency incidents, recruit graduation ceremonies, promotional ceremonies, funerals, banquets, and other CFD events. Defendant explained that during the course of his employment with the CFD he had some opportunity to interact with all of the people that he demoted or promoted while he was Commissioner.
On May 24, 2004, Defendant issued Personnel Order No. 2004-10, appointing the exempt ranks under his chain of command. Below is a list identifying the African-American individuals Defendant appointed to the exempt ranks pursuant to P.O. No. 2004-10 and whether the appointment was a promotion, demotion or lateral reassignment:
1. Burns, Charles, Jr. -- Demotion
2. Jackson, Derrick F. -- Lateral reassignment
3. Noy, Leslie E. -- Promotion
4. Boatner, Joe W. -- Demotion
5. Brooks, John W. -- Promotion
6. Russell, Nicholas -- Promotion
7. Gault, Dennis V. -- Promotion
8. Stewart, Charles III -- Demotion
9. Pinkston, Ernie L. -- Promotion
10. Shelton, Jerome -- Promotion
11. Plaintiff, Ronald -- ...