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Jay Embrey and All Similarly Situated Employees of the City of Calumet City, Illinois v. the City of Calumet City

February 23, 2012

JAY EMBREY AND ALL SIMILARLY SITUATED EMPLOYEES OF THE CITY OF CALUMET CITY, ILLINOIS, PLAINTIFFS,
v.
THE CITY OF CALUMET CITY, ILLINOIS, GEORGE VALLIS, ROGER MUNDA, NICK MANOUSOPOULOS, BRIAN WILSON, EDWARD GONZALEZ, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Jay Embrey has sued the City of Calumet City, its Director of Purchasing and Personnel George Vallis, and current or former city aldermen Roger Munda, Nick Manousopoulos, Brian Wilson, and Edward Gonzalez (the "alderman defendants"). Embrey alleges that defendants retaliated against him for protected political activity by demoting him from Calumet City's Commissioner of Streets and Alleys to a lesser position and that they retaliated against him further for filing this lawsuit. He has also asserted a number of state-law claims. The Court previously granted summary judgment in favor of defendants on Embrey's claim that his demotion was retaliatory. Embrey v. Calumet City, No. 10 C 3685, 2012 WL 171665 (N.D. Ill. Jan. 18, 2012). Defendants have moved for summary judgment on Embrey's remaining claims. For the reasons stated below, the Court grants the motion.

Background

Embrey's initial complaint, filed in June 2010, alleged that he was demoted or terminated from his position in Calumet City government as a result of his political activity on behalf of the mayor. The Court assumes familiarity with these allegations, a detailed recounting of which can be found in the Court's previous decision in this case. On April 26, 2011, Embrey filed an amended complaint, which included a new count (count seven) in which he alleged that "Defendants failed and refused to promote the Plaintiff and transferred his duties in direct retaliation for [his having filed this lawsuit and] providing testimony in this matter." Am Compl. ¶ 130. In their previous motion for summary judgment, defendants sought summary judgment on this claim, but neither defendants' motion nor Embrey's response contained legal argument on the point. The Court therefore declined to grant summary judgment on count seven but allowed defendants to submit another motion, which they now have done.

Embrey's allegations that defendants*fn1 retaliated against him for filing and prosecuting this lawsuit concern two incidents. First, Embrey claims that defendants refused to interview him for or promote him to available positions in city government because he filed this lawsuit. Second, he claims that defendants transferred his duties two days after he gave his deposition in this lawsuit, assigning him to work on a truck that went through the city collecting and chipping tree branches.

Discussion

Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lexington Ins. Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999); Fed. R. Civ. P. 56(c). A court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The nonmoving party must offer something more than a 'scintilla' of evidence to overcome summary judgment . . . and must do more than 'simply show that there is some metaphysical doubt as to the material facts.'" Roger Whitmore's Auto. Servs. v. Lake County, Ill., 424 F.3d 659, 667 (7th Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

1. Count seven

Embrey brings count seven under 42 U.S.C. § 1983, alleging that defendants retaliated against him for filing this lawsuit in violation of his First Amendment rights. In order to succeed on this claim, Embrey "must establish that the speech was a substantial or motivating factor in the retaliatory action." Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004).

Embrey alleges in his complaint that defendants "refused to interview or permit [him] to interview" for newly available deputy commissioner positions, "failed and refused to promote" him, and "specifically threatened [him] that he would not be promoted because of the exercise of his First Amendment rights through this lawsuit." Id. ¶¶ 43, 130-31. Other than repeating these allegations, however, Embrey's brief contains almost no argument regarding defendants' failure to promote him. These repeated allegations, for the most part, either cite only to the complaint -- which is not evidence -- or include no citations at all. Embrey references several pieces of evidence purportedly showing that defendants habitually terminate or otherwise take adverse action against city employees who disagree with them. That does not help Embrey here, however: the Court has already granted summary judgment in favor of defendants on Embrey's claims relating to his termination.

Embrey cites only one piece of evidence that relates specifically to his allegation that defendants failed to promote him as a result of this lawsuit: his description of a February 2011 conversation with Paul Freyman, his supervisor and the mayor's son. In his complaint, Embrey characterizes Freyman's remarks as a "warn[ing] . . . that the lawsuit would jeopardize [Embrey's] employment." Am. Compl. ¶ 132. When testifying under oath, however, Embrey said only that he had told Freyman that he "want[ed] the City to do . . . the right thing" and that Freyman responded, "Well, with Luke Casson [one of Embrey's attorneys] on your side, I doubt that's going to happen. You'll probably lose this case, and it won't be good for your work." Embrey Dep. at 220:2-12. Despite the phrasing of Embrey's complaint, the Court concludes that no reasonable jury could find that Freyman's remark was a "warning" that Embrey's lawsuit had "jeopardize[d]" his employment, particularly in light of Embrey's further testimony that he did not consider this remark to be "a threat from a supervisor to intimidate" him. Id. at 221:8-10.

In its review of Embrey's deposition, the Court has found one other portion of testimony that relates to this issue. Embrey testified that he had told the mayor that he should be made a deputy commissioner and that the mayor had responded "[t]hat these guys -- the defendants, wouldn't support it." Id. at 251:6-7. Even if this statement were admissible for its truth, however, nothing about it would support an inference by a reasonable jury that defendants' alleged lack of support resulted from Embrey's lawsuit.

Despite the allegations in the complaint, Embrey has provided no evidence that he sought a promotion or another position -- indeed, he testified that he has not applied to or "informally sought out" any position since his demotion. Id. at 148:3-7.*fn2 He has provided no evidence that defendants made threats or remarks of any kind regarding his lawsuit. In short, there is no evidence from which a reasonable jury could find that defendants retaliated against Embrey for filing this lawsuit by refusing to promote him.

There is somewhat more evidence in the record regarding Embrey's assignment to duty on the wood chipper. Embrey testified that "the commissioner and deputy commissioners throw their weight around" by assigning disfavored employees to work on the wood chipper. Id. at 198:7-11. He has conceded, however, that he has no evidence of who was responsible for his own assignment to the wood chipper or the reason for ...


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