Rojas v. Town of Cicero et al

Filing 411

WRITTEN Opinion entered by the Honorable James F. Holderman on 6/21/2011:For the reasons explained in the Statement section of this order, plaintiff Merced Rojas's ("Rojas") "Motion for Reconsideration of this Court's Order ( Docket #335) Regarding Monell Liability" 392 is granted. The court will permit Rojas to present evidence related to the Town's Monell liability based on either a widespread practice or final policymaker theory of liability. Because the identification of the final policymaker is a question of law for the court, the court will make its ruling on whether President Larry Dominick was a final policymaker after the jury reaches its verdict. Signed by the Honorable James F. Holderman on 6/21/2011: Mailed notice (am)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

James F. Holderman

CASE NUMBER

08 C 5913

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

6/21/2011

Merced Rojas vs. Town of Cicero, et al.

DOCKET ENTRY TEXT

For the reasons explained in the Statement section of this order, plaintiff Merced Rojas’s (“Rojas”) “Motion
for Reconsideration of this Court’s Order (Docket #335) Regarding Monell Liability” [392] is granted. The
court will permit Rojas to present evidence related to the Town’s Monell liability based on either a
widespread practice or final policymaker theory of liability. Because the identification of the final
policymaker is a question of law for the court, the court will make its ruling on whether President Larry
Dominick was a final policymaker after the jury reaches its verdict.

O[ For further details see text below.]

Notices mailed.

STATEMENT
On November 16, 2010, Rojas filed a “Motion for Finding as a Matter of Law” (Dkt. No. 235), asking
this court to find as a matter of law that defendant President Larry Dominick (“President Dominick”) “had
policy making authority for the termination of Plaintiff Rojas and acted under color of law in making such
decision.” (Dkt. No. 235 at 1.) This court granted Rojas’s motion in part to the extent that it asked the court
to make such a determination but ultimately concluded that President Dominick was not a final policymaker
based on the limitations of his authority imposed by certain Town of Cicero (“Town”) ordinances. (Dkt. No.
335.) Because Rojas had not identified another theory of Monell liability in his pre-trial submissions nor
proposed any Monell jury instructions in the parties’ Proposed Pretrial Order, the court removed Rojas’s
claim against the Town from its Proposed Verdict Form. (See Dkt. No. 343.)
Rojas originally did not file a motion for reconsideration of this court’s determination regarding the
Monell claim against the Town. Instead, he raised the issue in his reply brief in support of his motion for
reconsideration of this court’s ruling that defendants President Dominick and the Town (collectively
“Defendants”) had qualified immunity with respect to Rojas’s First Amendment familial association claim.
(Dkt. No. 385.) Despite not having filed a motion for reconsideration on the Monell issue, on April 4, 2011,
Rojas proceeded to file a “Motion to Supplement Reconsideration of this Court’s Order of November 29,
2010 (Docket #335) with Recent Seventh Circuit Authority.” (Dkt. No. 388.) During the hearing on that
motion, the court granted Rojas’s motion to supplement but explained to Rojas’s counsel that a motion for
reconsideration of the Monell order had never been filed. (See Dkt. No. 391.) On April 21, 2011, Rojas filed
his “Motion for Reconsideration of this Court’s Order (Docket #335) Regarding Monell Liability” (Dkt. No.
392 (“Rojas’s Mot.”)), which included over 250 pages of exhibits.
Federal Rule of Civil Procedure 54(b) permits district courts to revise “any order or other decision,
08C5913 Merced Rojas vs. Town of Cicero, et al.

Page 1 of 5

STATEMENT
however designated, that adjudicates fewer than all the claims . . . at any time before the entry of a [final]
judgment.” Fed. R. Civ. P. 54(b). “The authority of a district judge to reconsider a previous ruling in the
same litigation . . . is governed by the doctrine of the law of the case, which authorizes such reconsideration
if there is a compelling reason, such as a change in, or clarification of, law that makes clear that the earlier
ruling was erroneous.” Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006); see also
Solis v. Current Dev. Corp., 557 F.3d 772, 780 (7th Cir. 2009) (“The court [has] broad discretion to revisit its
interlocutory orders . . . .” (citing Santamarina, 557 F.3d at 571)). Having had an opportunity to more
thoroughly review the relevant legal authority, the court agrees that reconsideration of its previous finding
that Rojas could not pursue his Monell claim against the Town is warranted.
Under Monell, a municipality may be liable for a violation of a plaintiff’s constitutional rights if the
alleged violation was caused by “(1) an express policy that causes a constitutional deprivation when
enforced; (2) a widespread practice that is so permanent and well-settled that it constitutes a custom or
practice; or (3) an allegation that the constitutional injury was caused by a person with final policymaking
authority.” Waters v. City of Chi., 580 F.3d 575, 581 (7th Cir. 2009) (quoting Estate of Sims ex rel. Sims v.
Cnty. of Bureau, 506 F.3d 509, 515 (7th Cir. 2007)). Rojas argues that in this case the Town may be liable
under either the second or third Monell theories of liability. The court will address each theory in turn.
First, regarding whether President Dominick was a final policymaker, the Seventh Circuit’s decision
in Valentino v. South Chicago Heights, 575 F.3d 664 (7th Cir. 2009), is instructive. In Valentino, the court
explained that
[h]elpful in determining whether an official is a final decisionmaker is an inquiry into: (1)
whether the official is constrained by policies of other officials or legislative bodies; (2)
whether the official’s decision on the issue in question is subject to meaningful review; and
(2) “whether the policy decision purportedly made by the official is within the realm of the
official’s grant of authority.”
Id. at 676 (quoting Randle v. City of Aurora, 69 F.3d 441, 448 (10th Cir. 1995)). The court in Valentino
further noted that “[a]lso helpful is an examination of not only ‘positive law, including ordinances, rules and
regulations, but also the relevant customs and practices having the force of law.’” Id. (quoting Mandel v.
Doe, 888 F.2d 783, 793 (11th Cir. 1989)). Additionally, this inquiry focuses not on “whether an official is a
policymaker on all matters for the municipality, but [rather on] whether he is a policymaker ‘in a particular
area, or on a particular issue.’” Id. (quoting Kujawski v. Bd. of Comm’rs, 183 F.3d 734, 738 (7th Cir. 1999)).
In its order finding that President Dominick was not a final policymaker with respect to employment
issues, this court relied on § 2-96(b) of the Cicero Municipal Code, which provides: “The personnel director
in addition to the town attorney and the town president is empowered to adopt and issue personnel rules.”
Determining that, based on this ordinance, President Dominick “could not have alone undertaken to set
official employment policies on behalf of the Town of Cicero,” this court concluded that President Dominick
“was not a final policymaker for purposes of the Town’s potential Monell liability.” (Dkt. No. 335.) See
also Wragg v. Vill. of Thorton, 604 F.3d 464, 469 (7th Cir. 2010) (“As to the board of trustees, we agree with
the district court that there can be no municipal liability for the isolated acts of only one member of a multimember board.”).
Nevertheless, as explained in Valentino, the Town’s “ordinances, rules and regulations” are not
necessarily dispositive. Instead, evidence of the Town’s “customs and practices” is also relevant. In
Valentino, for example, the court noted that “all of the evidence suggest[ed] that Mayor Owen had the
08C5913 Merced Rojas vs. Town of Cicero, et al.

Page 2 of 5

STATEMENT
unfettered discretion to hire and fire whomever he pleased” in finding that Mayor Owen was the de facto
policymaker with respect to personnel decisions in his office. Valentino, 575 F.3d at 677-78. Specifically,
the court in Valentino explained that
[g]iven that the Village has a population of only a few thousand people and is run by a small
government, a legislative framework for personnel decisions may not actually exist, and
Defendants have not provided evidence of any. Rather, the evidence suggests that as head of
the government, Mayor Owen may hire or fire whomever he wants in the routine course of
business. Therefore, in this case, . . . given that there is no presumption of policymaking
authority in the hands of any quasi-legislative body, it is unnecessary for there to be any
factual inquiry into whether that body delegated its authority to Mayor Owen. To the contrary,
given Mayor Owen’s preference to hire his relatives and campaign supporters to government
jobs, it appears to be a Village custom/practice to allow Owen to set whatever hiring/firing
criteria he sees fit.
Id. at 678.
In this case, unlike Valentino, the evidence does not undisputably demonstrate that President
Dominick possessed final policymaking authority with respect to personnel issues. As this court previously
found, under the court’s interpretation of the relevant Town ordinance, President Dominick is only authorized
to adopt personnel policies in coordination with both the Town attorney and the Town personnel director.
Additionally, President Dominick testified during his deposition that policy recommendations would also
need to be approved by the Town’s board and that the “Town Board at the end is the vote” with respect to
hiring decisions. (L. Dominick Dep. 59:15-21; 69:22-71:14 (attached as Ex. C to Dkt. No. 402).) On the
other hand, Derek Dominick, the Town’s Human Resource Director, testified during his deposition that
President Dominick had the authority to suspend and fire employees but he, Derek Dominick, did not. (D.
Dominick Dep. 19:10-23 (attached as Ex. 4 to Rojas’s Mot.).) Based on the record currently before the court,
whether President Dominick possessed final policymaking authority with respect to the Town’s employment
issues appears to involve factual disputes inappropriate for a resolution based solely on the parties’
submissions.
Rojas argues that if this court is unable to find that President Dominick was a policymaker as a matter
of law, whether he had final policymaking authority is a question of fact for the jury. (Rojas’s Mot. 2.)
Based on the court’s research, however, whether President Dominick had final policymaking authority is a
question of law for the court, not the jury, even if the ultimate determination involves factual issues.
In Jett v. Dallas Independent School District, 491 U.S. 701 (1989), the U.S. Supreme Court explained
that the identification of the final policymaker is question for the trial judge, not the jury:
[T]he identification of those officials whose decisions represent the official policy of the local
governmental unit is itself a legal question to be resolved by the trial judge before the case is
submitted to the jury. Reviewing the relevant legal materials, including state and local
positive law, as well [as] “custom or usage” having the force of law, the trial judge must
identify those officials or governmental bodies who speak with final policymaking authority
for the local governmental actor concerning the action alleged to have caused the particular
constitutional or statutory violation at issue. Once those officials who have the power to make
official policy on a particular issue have been identified, it is for the jury to determine whether
their decisions have caused the deprivation of rights at issue . . . .
08C5913 Merced Rojas vs. Town of Cicero, et al.

Page 3 of 5

STATEMENT
Id. at 737 (emphasis in original) (internal citations omitted). Interpreting this excerpt from Jett, the Eleventh
Circuit in Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989), explained that “[a]lthough identification of the
policymaker may often involve fact-sensitive inquiries, the Supreme Court has determined as a matter of
policy that courts, and not juries, are to make this decision.” Id. at 793. Similarly, in McGee v. Bauer, 956
F.2d 730, 733 (7th Cir. 1992), the Seventh Circuit relied on Jett in instructing that “whether a local official is
a policymaker is a question of law to be decided by the trial judge before the case is submitted to a jury. The
district court therefore should not have let the policymaker question go to the jury.” (emphasis added).
Rojas relies on Kujawski as support for his position that the jury should address any underlying
factual disputes. Although the Seventh Circuit in Kujawski found that a genuine issue of material fact
precluded an award of summary judgment on plaintiff’s Monell claim and remanded the case “to the district
court for further proceedings,” the Seventh Circuit panel in Kujawski did not explicitly explain whether the
factual dispute should be resolved by the court or by the jury. The Kujawski opinion, however, did recognize
that under Jett, the determination of a person’s status as a final policymaker “is a question of state or local
law” and that “the trial judge must identify those officials or governmental bodies who speak with final
policy making authority.” 183 F.3d at 737.
Applying Jett, McGee, and Kujawski, and further guided by the Eleventh Circuit’s decision in
Mandel, this court finds that it–and not the jury–must determine whether President Dominick had final
policymaking authority for the Town with respect to employment decisions, even if that determination
involves disputed questions of fact. This issue, however, was never presented to the court on summary
judgment and, as a result, the court has not had the benefit of reviewing Local Rule 56.1 statements outlining
the relevant facts, whether those facts are disputed, and the supporting evidence to assist the court in making
this determination. Nor have the parties submitted statements of material fact in connection with the briefing
on Rojas’s motion for reconsideration.
To avoid further delay in the resolution of Rojas’s claims, the court intends to instruct the jury to
assume that President Dominick was a final policymaker for purposes of assessing the Town’s liability under
Monell. The court will reserve its final determination on President Dominick’s policymaker status until after
the trial. If necessary, the court at that time may request that the parties submit to the court further material
related to the legal issue of whether President Dominick was a final policymaker.
Regarding the Town’s Monell liability based on a widespread practice–another issue the Town did not
address in its motion for summary judgment (see Dkt. No. 116)–the court will allow Rojas to pursue this
theory of liability at trial. Although Rojas originally did not submit any jury instructions on the Town’s
liability under Monell based on a widespread practice in the parties’ Proposed Pretrial Order, Rojas has
moved to supplement its jury instructions with instructions related to the Town’s Monell liability based on
that theory (Dkt. No. 396), and also persistently argued both during the November 2010 pre-trial conference
and in his subsequent submissions to the court that the Town may be liable under that theory (see Dkt. No.
385, 388, 392). Moreover, in its response to Rojas’s motion for reconsideration on the Monell issue, the
Town does not argue that it would be prejudiced by allowing Rojas to present a widespread practice theory to
the jury at trial. (See Dkt. No. 400.) The court accordingly will provide an appropriate instruction to the jury
regarding the Town’s liability under Monell’s widespread practice theory.
The court emphasizes that during the trial, Rojas will not be allowed to present evidence to the jury
through witnesses or exhibits that were not previously disclosed in the parties’ Proposed Pretrial Order unless
there is an agreement of the parties and the court or unless there is a showing, outside the jury’s presence,
08C5913 Merced Rojas vs. Town of Cicero, et al.

Page 4 of 5

STATEMENT
that the exclusion of such evidence would result in “manifest injustice.” (See Proposed Pretrial Order ¶ 8
(“This Order will control the course of the trial and may not be amended except by consent of the parties and
the court, or by order of the court to prevent manifest injustice.”).)

08C5913 Merced Rojas vs. Town of Cicero, et al.

Page 5 of 5