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Shakman v. Democratic Organization of Cook County

United States District Court, N.D. Illinois, Eastern Division

March 9, 2017

MICHAEL L. SHAKMAN, et al, Plaintiffs,


          Sidney I. Schenkier Magistrate Judge

         Noreen Lanahan ("Ms. Lanahan" or "Complainant"), an employee of the Cook County Health and Hospital System ("CCHHS"), moves for an order vacating an arbitration award that denied her claims of political discrimination and retaliation against Cook County (doc. # 4785: Mot. to Vacate). Pursuant to the Illinois Uniform Arbitration Act, 710 ILCS 5/1 et. seq. ("Arbitration Act"), Ms. Lanahan moves to vacate the arbitrator's decision on the ground that the arbitrator exceeded his powers by basing his decision on gross errors of law and fact (Mot. to Vacate Exh. 1; Mem. in Support of Mot. to Vacate at 15). For the following reasons, we deny Ms. Lanahan's motion.


         The arbitration at issue has its genesis in Ms, Lanahan's claim that CCHHS violated a Supplemental Relief Order for Cook County (doc. # 587, "SRO") entered in the case of Shakman, et. al. v. Democratic Organization of Cook County, et. al, 481 F.Supp. 1315, 1358 (N.D.I11. 1979), vacated sub nom., Shakman v. Dunne, 829 F.2d 1387, 1398 (7th Cir. 1987), cert. denied, 484 U.S. 1065 (1988) ("Shakman Decree"). The Shakman Decree bars CCHHS from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a government employee, upon or because of any political reason or factor." Shakman, 481 F.Supp. at 1358.

         In 2008, Ms. Lanahan held the position of Director of Financial Control IV, working for the Cook County Department of Public Health, a Grade 24 job that was non-exempt (that is, one in which CCHHS was prohibited from using political considerations in connection with Ms. Lanahan's terms and conditions of employment) (PI. Mem. in Support of Mot. to Vacate at 3). The only other CCHHS employee with the same pay grade and title was Robert Vais, who worked for Stroger Hospital (Id. at 4). From 2008 to 2013, Ms. Lanahan's salary was approximately $101, 000.00. Mr. Vais' salary was also $101, 000.00 in 2008, but he was subsequently given two pay increases resulting in a salary of $138, 300.00 (Id. at 5). Ms. Lanahan questioned the pay disparity but never received an adequate explanation (Id.).

         Under the terms of the SRO, Ms. Lanahan filed a complaint about the pay disparity with the Office of the Independent Inspector General ("OIIG") (Mot. to Vacate Exh. 2). Ms. Lanahan contended that CCHHS violated the Shakman Decree by failing to give her the same pay increases it gave to another employee who held the same job title and pay grade as Ms. Lanahan, and that this differential was because of political considerations (PI. Mem. in Support of Mot. to Vacate at 4). Ms. Lanahan additionally alleges that CCHHS retaliated against her for questioning the pay differential by adding her position to a list of jobs under CCHHS' amended severance policy, which indicated that employees with her job title could be terminated at will (PI. Mem. in Support of Motion at 7).

         In May 2015, the OIIG determined that Ms. Lanahan's complaint of political discrimination and retaliation was untimely in part and without merit in part (Mot. to Vacate Exh. 4). Specifically, the OIIG found that Ms. Lanahan's allegations regarding her pay disparity and the assignment of additional duties[1] were untimely because she brought her complaint to the OIIG more than 120 days after she discovered the issues and there was no basis to toll the statute of limitations. With respect to her complaint of retaliation, the OIIG explained that Ms. Lanahan had suffered no adverse action, because her position was not changed from "career" to "at-will, " The amended severance policy that Ms. Lanahan said made her an at-will employee only applied to employees hired after June 30, 2010. As Ms. Lanahan was hired into the position in 2008, she retained career employee protection (Id. at 5-6).

         Ms. Lanahan next elected to pursue arbitration of her claims instead of filing a lawsuit in federal court, as was her right pursuant to the SRO. Ms. Lanahan filed a notice of arbitration and on March 16, 2016 and June 1, 2016, Ms. Lanahan, represented by counsel, participated in an arbitration hearing, during which she had the opportunity to present witnesses and evidence. At the close of the hearing, Ms. Lanahan submitted a post-hearing brief, to which CCHHS responded.

         In September 2016, the arbitrator issued his decision, finding that Ms. Lanahan had failed to make a prima facie case of unlawful political discrimination in violation of the Shakman Decree (Mot. to Vacate Exh. 3). The arbitrator first recognized that Ms. Lanahan's allegations implicated her First Amendment right to protection "against being removed from public employment for purely political reasons, with certain exceptions for policymaking positions and employees having a confidential relationship with a superior" (Id. at 4), citing Zerante v. DeLuca, 555 F.3d 582, 584-85 (7th Cir. 2009).[2] Specifically, he noted that Ms. Lanahan testified that she did not consider herself politically active and did not share her political affiliation with others (Mot. to Vacate Exh. 3 at 7). Thus, the arbitrator found that it was Ms. Lanahan's lack of political affiliation or activity that was protected.

         Next, the arbitrator explained that cases of political discrimination involve a shifting burden of proof under which the plaintiff must first make a prima facie case, which requires the presentation of evidence that a plaintiffs political affiliation - or lack thereof- was a motivating factor in the employment decision (Id. at 5).[3] If the plaintiff succeeds in making a prima facie case, the burden shifts to the defendant to present evidence that the defendant would have taken the same employment action even without the consideration of political factors (Id.) (citing Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287 (1977)).

         The arbitrator held that Ms. Lanahan failed to make a prima facie case of political discrimination because she offered only speculation, rather than evidence, to show that politics were a motivating factor in the pay differential between her and Mr. Vais (Mot. to Vacate Exh. 3 at 9). The arbitrator explained that, assuming that Ms. Lanahan was correct that she was treated unfairly with respect to her salary, that she was subject to false promises about adjustments to her pay, and that another employee with the same job title and level was paid more than she was, this was insufficient to establish the necessary prima facie case (Id.). What was missing, explained the arbitrator, was "the linkage" between Ms. Lanahan's lack of political activity or affiliation and the pay differential, such that it could be said that political considerations were a motivating factor in the decisions (Id. at 10). The mere fact that Ms, Lanahan was paid less than another employee with the same job title and pay grade was not enough to establish & prima facie case that the difference was politically motivated.

         In a footnote, the arbitrator dispensed with Ms. Lanahan's claim of retaliation. He noted that CCHHS explained that, while Ms. Lanahan's job title and pay grade appeared on the amended Severance Policy, the change to at-will employment only applied to individuals with that job title and level who were hired after June 305 2010. Because Ms. Lanahan assumed the Grade 24 Director of Financial Control IV position in 2008, she was not subject to the change in status and thus, her job "remains protected" (Mot. to Vacate, Exh. 3 at 11).


         Under the Arbitration Act (as incorporated in the SRO), there are limited grounds upon which a federal court can vacate an arbitrator's decision. ...

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