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Remus v. Village of Dolton Board of Fire and Police Commissioners and Village of Dolton

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

November 21, 2019

ANDREW REMUS, Plaintiff,
v.
VILLAGE OF DOLTON BOARD OF FIRE AND POLICE COMMISSIONERS AND VILLAGE OF DOLTON, Defendants.

          VILLAGE OF DOLTON, et al., Defendants

          John B. Murphey Their Attorney

          DEFENSE RULE 50(A) MOTION FOR JUDGMENT AS A MATTER OF LAW

          Honorable Judge Jorge L. Alonso Judge.

         In accordance with FRCP 50(a), the Defendants move, prior to the jury instruction conference and prior to the submission of the case to the jury, for judgment as a matter of law. In support of this Motion, Defendants state:

         I.FIRE AND POLICE COMMISSION

         1. Defendant Fire and Police Commission (“Commission”) moves for judgment because, as a matter of law, the Commission (a) is not the employer for purposes of ADEA liability; (b) did not make the final decision to hire Moore, Gilhooly and Xenos for purposes of Section 1983 liability; and (c) had nothing to do with the determination of former Chief Franklin that he would not recommend Plaintiff for promotion to full-time.

         Equal Protection Claim

         2. As a matter of law, Ordinance No. 07-406 (“Ordinance”) vests the final decisionmaking authority in the Board of Trustees, not the Commission. Therefore, since the Commission lacked final decisionmaking authority, the Commission cannot be liable for any failure to promote the Plaintiff.

         3. There is no evidence that the Commission even considered Plaintiff in any respect in connection with its recommendation to promote the other three individuals.

         4. First addressing the equal protection claim, as a matter of law the Commission is not a final policymaker for purposes of Section 1983 liability. “Whether a particular official has final policymaking authority is a question of state law.” Harris v. City of Chicago, 665 F.Supp.2d 935, 947 (7th Cir. 2009) citing, inter alia, Duda v. Board of Education of Franklin Park S.D. 84, 133 F.3d 1054, 1061 (7th Cir. 1988). The fact that an advisory body has administrative authority to recommend “does not make that [body] a final policymaker for purposes of Monell liability.” Williams v. City of Chicago, 2000 WL 3169065 (N.D. Ill. 2017) at * 9.

         5. Under Illinois law, only a city council or board of trustees has the final legislative authority and, hence, is the only final policymaker for purposes of Section 1983. Waters v. City of Chicago, 580 F.3d 575, 581 (7th Cir. 2009). “State or local law determines whether a person has final policymaking authority for purposes of Section 1983.” Id. at 581; Rasche v. Village of Beecher, 336 F.3d 588, 601 (7th Cir. 2003) (Generally speaking, “the policy-making authority in the City structure will be the City Council”).[1] In order to be a final policymaker, a party or entity must have “final authority in the sense that there is no higher authority” and cannot be a person or a body whose “actions are constrained by rules and policies of a higher power.” Kasak v. Village of Bedford Park, 563 F.Supp.2d 864, 881 (N.D. Ill. 2008) [Internal citations omitted].

         6. As a matter of law, the final policymaking authority under the Ordinance is vested not in the Commission, but in the Village Board of Trustees. The evidence now conclusively establishes this legal authority issue as a matter of law. The resolution of this authority issue is for the Court, not the jury. Therefore, the Commission is entitled to judgment as a matter of law on the Section 1983 equal protection claim, and this claim should not be submitted to the jury as to the Commission.

         ADEA Claim

         7. Similar principles apply with respect to the ADEA claim. The only proper defendant in an ADEA claim is the employer. Pisoni v. Illinois, 2013 WL 2458522 (N.D. Ill. 2013). The identification of the “employer” is “a question of federal law.” Id.; citing Carver v. Sheriff of LaSalle County, 243 F.3d 379, 382 (7th Cir. 2001); Muhammad v. Village of ...


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