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Mulligan v. Village of Riverside

United States District Court, Seventh Circuit

June 3, 2013

KEVIN MULLIGAN, Plaintiff,
v.
VILLAGE OF RIVERSIDE, an Illinois corporation, and MATTHEW BUCKLEY, Defendants.

MEMORANDUM OPINION AND ORDER

RONALD A. GUZMAN, District Judge.

Plaintiff sues defendant the Village of Riverside ("the Village") for its alleged violations of the Americans with Disabilities Act ("ADA") and defendant Matthew Buckley for defamation. Each defendant has filed a Federal Rule of Civil Procedure 56 motion for summary judgment. For the reasons set forth below, the Court grants in part and denies in part the Village's motion and denies Buckley's motion.

Facts

In 1983, the Village hired plaintiff as an on-call firefighter. (Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 20.) Over the next twenty-three years, he rose from firefighter to lieutenant, captain, assistant chief and chief of the Village fire department. ( Id. ) Because many of these positions, including fire chief, are part-time, since 1983 plaintiff has also worked for the Pleasantview Fire Protection District. ( Id. ¶ 21.)

When plaintiff became fire chief in May 2006, defendant Matthew Buckley ("Buckley") and his brother John Buckley were the deputy chiefs who reported to him. ( Id. ¶ 14.) Plaintiff quickly became dissatisfied with Buckley's performance. ( Id. ¶ 24.) When he told Buckley about the problems, their relationship seriously deteriorated. ( Id. )

On December 7, 2008, while the two were discussing a work matter, Buckley accused plaintiff of drinking on duty. ( Id. ¶ 25.) Plaintiff reported Buckley's accusation to then-Village Manager Kathleen Rush, who put plaintiff on paid leave pending an investigation. ( Id. ¶¶ 6, 26.)

After an investigation in which five fire department officers said they believed plaintiff had been impaired by alcohol while on duty, Rush sent plaintiff to the employee assistance program ("EAP") for an alcohol evaluation. ( Id. ¶ 27.) The EAP evaluator concluded that "there [was] no substance abuse issue" and "cleared [plaintiff] to resume [his] duties." (Village's LR 56.1(a) Stmt., Ex. B, Mulligan Dep. Ex. 12, Mem. from Rush to Mulligan (Dec. 31, 2008).) Nonetheless, the Village conditioned plaintiff's return to work on his execution of a "Last Chance Agreement, " which required him to meet all EAP requirements and submit to periodic alcohol screening tests. ( See id., Last Chance Agreement.) According to plaintiff, when he returned to work in January 2009, Rush told him not to take any disciplinary action against Buckley because it could be viewed as retaliation. (Village's LR 56.1(a) Stmt., Ex. B, Mulligan Dep. at 46-48.)

In May 2009, plaintiff attended a meeting with Rush, who was leaving the Village Manager position, Robin Weaver, who was appointed interim Village Manager, incoming Village President Michael Gorman, and outgoing President Harold Wiaduck. (Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 34.) Plaintiff says he was again told during that meeting "not to take any action [against Buckley] that would be considered retaliatory." ( Id. )

In May 2009, as her tenure as Village Manager was ending, Rush gave plaintiff his performance review for June 2008-May 2009. ( See id., Ex. 19, 2008-09 Performance Review.) On a rating scale of 1-5, in which 5 is "outstanding, " 4 is "exceeds requirements, " 3 is "satisfactory, " 2 is "needs improvement" and 1 is "unsatisfactory, " Rush gave plaintiff an overall rating of 4.38. ( Id. ) Moreover, she said: "[Plaintiff ] is an excellent department manager. He is a team player and is willing to participate and support the department, the management team and the Village. He is excellent under stress (flood) etc. During the 2008 floods, [plaintiff] and FD performed in an excellent fashion. He will continue to be a great asset to the Village of Riverside." ( Id. )

In June 2009, plaintiff and Buckley met with interim Village Manager Weaver to discuss Buckley's need to improve his communications with and responsiveness to plaintiff. (Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 36.) Later that month, Buckley complained to Weaver that plaintiff had given him a smaller merit pay increase than others in the fire department. ( Id. ¶ 37.) The record does not show whether or how Weaver responded.

On August 14, 2009, Buckley sent plaintiff the following email:

I understand that you have stated in previous e-mails that you feel that we still have a [sic] issue communicating. I am starting to ascertain a much clearer picture as to why you feel this way. The issue at hand is that you must not want to communicate with me. I received a merit pay increase breakdown sheet in my mailbox recently.
Which [sic] is a little strange since I had already signed one. I have since learned that I am the only employee in the Fire Department that has received one percent and that every other employee has recieved [sic] two percent. It is now my opinion that I am being singled out by you, the Fire Chief. Please respond to me in writing why I have only received a one percent merit increase. Also, a little communication on this issue would have made things much more understanding [sic], but you have failed to call or talk to me about this, even though we met in person on 8/5/09 in your office.

(Pl.'s Resp. Buckley's LR 56.1(a) Stmt., Ex. 7, Email from Buckley to Mulligan (Aug. 14, 2009).)

In October 2009, Peter Scalera became the Village Manager. (Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 39.) In December 2009, Buckley complained to Scalera about his reduced pay raise, which he blamed on plaintiff. ( Id. ¶ 40; Village's LR 56.1(a) Stmt., Ex. C, Scalera Dep. at 93-94.) When Scalera reviewed Buckley's pay history, he discovered that the reduction had, in fact, been made by Weaver. ( Id. ¶ 37; Village's LR 56.1(a) Stmt., Ex. C, Scalera Dep. at 93-95.) Because Scalera "[could] not confirm the circumstances leading to... Weaver's decision, " he gave Buckley the pay adjustment. (Village's LR 56.1(a) Stmt., Ex. C, Scalera Dep. Ex. 11, Letter from Scalera to Buckley (Dec. 15, 2009).)

Sometime in January 2010, Buckley and fire captain Bill Sherman told Scalera that they thought plaintiff had been drinking while on duty. ( Id., Ex. C, Scalera Dep. at 111-13.) Scalera interviewed eight fire department employees to determine whether plaintiff "had a drinking problem that was impacting his ability to manage the department." ( Id. at 115.) Scalera concluded that plaintiff did not have a problem and had been seen drinking when he was off duty. ( Id. )

On April 19, 2010, on Scalera's recommendation, the Village Board unanimously decided to renew plaintiff's employment contract. ( Id. at 105; Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 46; id., Ex. 16, Apr. 19, 2010 Bd. Trs. Meeting Minutes at 3.) The next day, Buckley requested and received a demotion from deputy chief to captain because he did not have "a good working relationship with [plaintiff.]" (Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 47; Village's LR 56.1(a) Stmt., Ex. C, Scalera Dep. at 123-27.)

On June 25, 2010, Scalera gave plaintiff his performance review for October 2009-June 2010. ( See Pl.'s Resp. Village's 56.1(a) Stmt., Ex. 20, 2009-10 Performance Review.) On a rating scale in which 50-55 is "outstanding, " 39-49 is "exceeds requirements, " 29-38 is "satisfactory, " 24-28 is "needs improvement" and under 24 is "unsatisfactory, " Scalera gave plaintiff a rating of 48. ( Id. ) In addition, Scalera commented that plaintiff: (1) "has excellent communication skills.... an even disposition and can communicate with any type of individual"; (2) "is very approachable" and "a fair and open-minded manager who wants to see his employees succeed and grow"; (3) "is open to trying new methods and is willing to work with others"; and (4) "is a strong leader [who] wants the team to emulate his success." ( Id. )

On August 19, 2010, Buckley's lawyer sent a letter to the Village President and Board of Trustees, which said:

.... Mr. Buckley's performance reviews were consistently above-average until 2008, when he was promoted to Deputy Chief and began to discuss with [plaintiff], and later report to Village management, his concerns.... about [plaintiff's] issues with alcohol.... [Plaintiff] responded by retaliating against Mr. Buckley. Mr. Buckley's performance ratings suddenly dropped, he was excluded from a 2% merit increase (receiving only 1%) despite the fact that everyone else, including those with comparable performance ratings, received the 2% increase, and he was subjected to repeated, unwarranted criticism by [plaintiff].

(Village's LR 56.1(a) Stmt., Ex. C, Scalera Dep. Ex. 20, Letter from Major Law to Bd. Trs. (Aug. 19, 2010).) The letter also stated that Buckley had observed plaintiff on duty in an alcohol-impaired state and had evidence that plaintiff had been drinking in area bars on the afternoons of July 29, August 5, and August 11, 2010. ( Id. ) After receiving the letter, the Village put plaintiff on leave pending an investigation. (Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 49.)

On September 12, 2010, while the Village was conducting its investigation, plaintiff submitted a letter of resignation to the Village President that said:

I have worked two jobs the last seventeen years. Although the Riverside position was considered part time, it was essentially a full time job as well. I find I can no longer serve in both jobs effectively. Therefore I am retiring/resigning from the Riverside position effective September 20, 2010.

( Id., Ex. 24, Letter from Mulligan to Gorman (Sept. 12, 2010).) A week later, however, plaintiff rescinded his resignation and asked for "the opportunity to address this matter with the Village Board after [he] engage[d] counsel." (Village's LR 56.1(a) Stmt., Ex. D, Gorman Decl., Ex. 2, Letter from Mulligan to Gorman (Sept. 19, 2010).)

The Board granted plaintiff's request, and on October 14, 2010, held a hearing on the allegations against him. ( Id., Ex. 3, Letter from Gorman to Mulligan (Sept. 21, 2010).) The record contains little information about the hearing, but the Board's post-hearing discussions suggest that they watched one or more videos submitted by Buckley that showed plaintiff drinking unidentified beverages in bars during the day. (Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 53; Pl.'s Resp. Buckley's LR 56.1(a) Stmt., Ex. 11, Oct. 14, 2010 Meeting Tr. at 1-4.) During those discussions many of the Board members said they believed plaintiff had been drinking on duty, but all of them agreed that there was not "absolute proof" of that fact. (Pl.'s Resp. Buckley's LR 56.1(a) Stmt., Ex. 11, Oct. 14, 2010 Meeting Tr. at 2-4, 25, 66.) After concluding that they could not "figure out evidencewise" whether plaintiff had been drinking, the members discussed whether plaintiff could run the department. ( Id. at 15-16, 27-28, 56.) One member said, "I am very uncomfortable saying that.... we don't have proof that he is drinking on the job and regardless, we believe he can't lead the department, so he has to go." ( Id. at 15-16.) Others noted that the fire department was split into two factions, one supporting plaintiff and the other supporting Buckley and that the Buckley faction "was driving the rift." ( Id. at 27-28, 68.) Another member said Buckley was "the only... person behind all of these allegations" and said the timing of events was "suspicious": "[Buckley] decides to step down from Deputy Chief [to] Captain in May. By June he's going to a lawyer and getting a PI. So-so that the two things are twined together." ( Id. at 16, 68.) Ultimately, the Board voted to reinstate plaintiff as fire chief. (Pl.'s Resp. Village's LR 56.1(a) Stmt. ¶ 54.)

In January 2011, deputy fire chief John Buckley resigned, which apparently prompted another Board discussion about plaintiff. (Village's LR 56.1(a) Stmt., Ex. D, Gorman Decl. ¶ 15.) At the January 18, 2011 Board meeting, Scalera said: "Do I think [plaintiff's] capable of running a department? Yes. Do I have concerns? Yes. Do I think he... may have a drinking problem? Honestly, yes. I think he... probably has a drinking problem. And he has been ...


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