Embry v. City of Calumet City et al

Filing 80

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 1/18/2012. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAY EMBREY and all similarly situated
employees of the City of Calumet City,
Illinois,
Plaintiffs,
vs.
THE CITY OF CALUMET CITY, ILLINOIS,
GEORGE VALLIS, ROGER MUNDA, NICK
MANOUSOPOULOS, BRIAN WILSON,
EDWARD GONZALEZ,
Defendant.

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Case No. 10 C 3685

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
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. Before the
Court are two motions for summary judgment, one joined by all defendants and one
joined only by the alderman defendants. For the reasons stated below, the Court grants
the first motion in part and postpones decision on the second.
Background
The Court takes the following facts from the parties’ memoranda of law and

statements of uncontested facts. On a motion for summary judgment, the Court
construes all facts favorably to the nonmoving party and makes reasonable inferences
in that party’s favor. Eaton v. Ind. Dep’t of Corr., 657 F.3d 551, 552 (7th Cir. 2011).
Calumet City is an Illinois municipal corporation that operates pursuant to the
Illinois Municipal Code. The municipality is run by a city council consisting of a mayor
and seven elected aldermen, each of whom runs for election every four years. In 2009
and 2010, when the events at issue in this case occurred, the mayor was Michelle
Qualkinbush, and the alderman defendants were either running for or serving on the city
council. The Municipal Code provides that “[t]he mayor . . . by and with the advice and
consent of the city council . . . may appoint” various public officers, including “a
commissioner of public works” and “other officers necessary to carry into effect the
powers conferred upon municipalities.” 65 ILCS 5/3.1-30-5(a).
In May 1998, Calumet City hired Embrey as a maintenance worker in its
Department of Streets and Alleys. He was promoted to foreman in the same
department in 2004. On June 8, 2007, with the approval of the city council,
Qualkinbush appointed Embrey to a one-year term as the Commissioner of Streets and
Alleys. The position’s description in the Calumet City Code was as follows: “There is
hereby established the position of commissioner of streets and alleys, who shall be
appointed by the mayor by and with the advice and consent of the city council.”
CALUMET CITY, ILL., CODE § 2-461(a) (1980).
The commissioner shall have charge of the construction and repair of all street
improvements, paving, curbing, sidewalks, bridges, viaducts, subways and all
other public improvements. The commissioner shall report to the city council any
ordinance violation with relation to the care or use of streets, alleys or sidewalks
in the city, of which he may become cognizant.
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Id. § 2-462 (1980).
The parties agree that Embrey’s duties as commissioner included “manag[ing]
the day to day decisions which needed to be taken care of. He managed the
employees, scheduled the work, supervised the work and participated in the preparation
of the department’s annual budget.” Defs.’ L.R. 56.1 Stmt. ¶ 16; Pl.’s Resp. to Defs.’
L.R. 56.1 Stmt. ¶ 16. Embrey maintains that he was also responsible “for the duties of a
foreman, which included payroll and scheduling.” Pl.’s Resp. to Defs.’ L.R. 56.1 Stmt. ¶
16. The parties further agree that Embrey reported directly to the mayor, though
Embrey asserts that he also reported to Vallis.
Embrey was reappointed Commissioner in 2008. In 2009, Qualkinbush ran for
reelection. She and Manousopoulos, Wilson, and Gonzalez, who were running for city
council seats, were members of the “United to Serve You” party, and they ran as part of
a slate of candidates in the February primary and April general elections. Embrey
performed political work on behalf of the United to Serve You party, including putting up
signs, knocking on doors, and serving as a precinct leader. The parties agree that “[a]t
some point, a rift developed within the United to Serve You party in connection with the
2009 primary election.” Defs.’ L.R. 56.1 Stmt. ¶ 36. There is some suggestion that this
rift arose when Munda ran as an independent with the support of the other alderman
defendants, ultimately defeating Qualkinbush’s chosen candidate for Alderman of the
Fifth Ward. The precise source of the tension is not material to the present motions.
Qualkinbush testified that Calumet City experienced severe financial problems in
2009, although Embrey disputes the extent of these problems. On April 27, 2009, the
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City Council Public Works Committee, chaired by Manousopoulos, met at City Hall to
discuss city grass-cutting expenses. One topic of discussion was the potential to save
money by using city employees rather than outside vendors to cut grass on public land.
The precise chronology and content of the communication between Manousopoulos
and Embrey on this matter is disputed. The parties generally agree, however, that
Manousopoulos suggested bringing the grass cutting in-house and that Embrey –
whose employees would be implicated by this change – voiced uncertainty regarding
whether this would be feasible or desirable, leading to some degree of tension between
the two.
At some point in 2009, Qualkinbush proposed to combine the Streets and Alleys
Department with the Sewer and Water Department under a single commissioner. The
former Commissioner of Sewer and Water was retiring. In July 2009, the city council
adopted an appropriations ordinance for 2009-2010, which created the position of
“Commissioner of Streets, Alleys, Water and Sewer.” Qualkinbush supported Embrey
for this position. The ordinance also affected the position of streets and alleys foreman,
which Embrey had held before becoming commissioner. Defendants argue that the
position was eliminated and replaced with a new position of deputy commissioner.
Embrey maintains that the ordinance simply changed the position’s title from foreman to
deputy commissioner without changing its responsibilities. In early September 2009,
Manousopoulos advised Embrey that it would be in his best interest to submit a letter of
resignation because Manousopoulos would be “giving [Embrey’s] job” to Nick
Yovkovich, another employee in Embrey’s department. Embrey Dep. at 79.
On September 3, 2009, Qualkinbush sent a letter to the “Members of the City
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Council” that stated, “I am herewith submitting for your approval, the appointment of
Kevin Jay Embrey . . . as Street & Alley/Water/Sewer Commissioner for the City of
Calumet City, for a term to expire on April 30, 2010.” Pl. Ex. 8. At a city council
meeting on September 10, 2009, however, Yovkovich was appointed to the new
position and was unanimously approved by the city council. Defendants characterize
Yovkovich’s appointment as an act taken by Qualkinbush, who testified that despite the
fact that she had supported Embrey, she decided that it would be “in the best interest of
the city to just accommodate the Aldermen with their request and move this forward so
that everybody would get paid.” Qualkinbush Dep. at 128:8-10. Embrey maintains that
he was appointed by Qualkinbush via her September 3 letter and that Yovkovich was
appointed not by Qualkinbush but by Manousopoulos.
After the city council meeting, Embrey was returned to his original maintenance
position. He filed a union grievance on October 30, 2009, contending that this violated
section 2-231 of the Calumet City Code. That provision states that if the mayor
appoints an employee who has worked for the City for more than three years to “head
any department of the City or in a supervisory position not covered by a Union contract,
such employee shall be entitled to return to the position held with the City prior to the
appointment . . . in the event such appointment does not receive the consent of the City
Council or such appointment is not renewed after the term has expired.” Embrey’s
grievance form stated, “The City has said the foreman position is no longer available,
and returned me to a position at a lesser rate of pay . . . . Regardless of availability of
foreman, I believe that I should be returned to the position guaranteed me or at least
returned to the same rate of pay . . . .” Def. Ex. 15.
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On January 20, 2010, Embrey received a denial of his grievance, signed by Vallis
as the “Mayor’s Designee,” stating in part that the “City was unable to return the
grievant to the foreman position which he previously held since the position was
eliminated. Therefore, the grievant was returned to the next highest position that he
held.” Id. The parties dispute the degree to which Vallis had input into or authority to
make the decision regarding Embrey’s change of position.
Embrey filed this lawsuit in June 2010 and gave his first deposition on April 11,
2011. Two days later, on April 13, 2011, he was assigned to drive a truck throughout
the city, collecting and chipping tree branches. He was later given this assignment
again and continued in this task for approximately two weeks. He considered this work
to be undesirable, in part because it could be dangerous. He believes that he received
the wood-chipping assignment in retaliation for his having filed this lawsuit, specifically
for his April 11 deposition testimony, and he amended his complaint to add a claim
regarding these events.
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
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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.

First Amendment termination claims
In count one of Embrey’s complaint, he alleges that he “engaged in

constitutionally protected speech and association under the First Amendment of the
U.S. Constitution when he actively supported Michelle Qualkinbush in her bid for
reelection” and that, as a result, the five individual defendants “took adverse
employment action against the Plaintiff in the form of demotion without being returned to
his former position as required by law.” Am Compl. ¶¶ 49, 52. Embrey claims that the
alderman defendants “specifically ordered and demanded the removal of the Plaintiff
from his position as Commissioner of Public Works” and that Vallis “was personally
responsible for demoting the Plaintiff with knowledge that such a demotion and
reassignment was contrary to law.” Id. ¶ 57. In count four, he makes essentially the
same claim against Calumet City. In both claims, Embrey seeks relief under 42 U.S.C.
§ 1983 for the alleged violation of his First Amendment rights.
Government employment does not automatically deprive a citizen of his or her
First Amendment right to free speech on matters of “public concern.” Marshall v. Porter
County Plan Comm’n, 32 F.3d 1215, 1219 (7th Cir. 1994) (citing Connick v. Myers, 461
U.S. 138, 142 (1983); Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563, 568
(1968)). The Seventh Circuit has noted that the “public concern” analysis – also known
as the Connick-Pickering test – includes an exception for a “subset” of cases known as
“political patronage cases,” which “provide that policymakers and confidential
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employees may be discharged due to their political beliefs.” Id. at 1220.
Defendants argue that the Court should analyze Embrey’s claims under the
political patronage framework rather than the Connick-Pickering test. Embrey appears
to argue that the patronage cases do not apply because his discharge was based on
personal disagreements and/or non-political speech. This argument is directly
contradicted by the allegations in his complaint, quoted above, to the effect that he was
discharged because of his work on behalf of Qualkinbush’s campaign. See Bonds v.
Milwaukee County, 207 F.3d 969, 978 (7th Cir. 2000) (noting that the patronage cases
“exempt employer action from Pickering balancing when it is based primarily on political
motivations [including] employer action against political expression” such as electoral
opposition) (citation omitted). The Court concludes that the political patronage cases
provide the proper framework for its analysis.
The Supreme Court has recognized that “an exception to the constitutional
prohibition on patronage employment practices exists when [First Amendment] rights
are outweighed by the government’s need for political loyalty in employees, as is the
case in . . . policymaking . . . positions.” Selch v. Letts, 5 F.3d 1040, 1043 (7th Cir.
1993) (citing Elrod v. Burns, 427 U.S. 347, 367 (1976)). The policymaking exemption is
founded on the principle that “[i]n our system, control of departments at all levels is
important for those given the task of governing [and] an elected official gains this control
by strategically placing loyal people in these departments.” Kolman v. Sheahan, 31
F.3d 429, 433 (7th Cir. 1994). An employee’s daily responsibilities, however, do not
have to involve formal crafting of policy to qualify for the exemption. Rather, “[t]he test
is whether the position held by the individual authorizes, either directly or indirectly,
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meaningful input into government decisionmaking on issues where there is room for
principled disagreement on goals or their implementation.” Nekolny v. Painter, 653 F.2d
1164, 1170 (7th Cir. 1981).
Defendants argue that the position from which Embrey was terminated,
Commissioner of Streets and Alleys, was a policymaking position exempt from First
Amendment protection. They rely in large part on their contention that Embrey’s
position is analogous to that of Calumet City’s “Coordinator for the Department of
Community and Economic Development,” which another judge in this district found to
be exempt on the basis of its “inherent powers.” Garrison v. Calumet City, 450 F. Supp.
2d 869, 878 (N.D. Ill. 2006). Embrey argues that his position was distinguishable from
those at issue in Garrison and similar cases because his responsibilities did not involve
the making or discretionary implementation of policy and did not otherwise implicate the
need for political loyalty.
The decision in Garrison largely relied on Heck v. City of Freeport, 985 F.2d 305
(7th Cir. 1993). Both courts found significant that their respective plaintiffs were “the
highest ranking employee in one of the city’s . . . primary departments” and had been
appointed by the mayor for a term “limited to that of the mayor.” Heck, 985 F.2d at 30910. The judge in Garrison noted additional factors under Heck that “instruct that the
position . . . is a position for which political affiliation is permissible,” including that the
plaintiff had “a staff of employees,” “was accountable to the mayor and works with many
other high level officials including . . . a number of aldermen,” and “prepares and
submits a budget to the city council and has discretion to spend within that budget.”
Garrison, 450 F. Supp. 2d at 876. Embrey’s former position shares many of these
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characteristics. Although the record does not indicate that the term of the
Commissioner of Streets and Alleys was expressly limited to that of the mayor, he was
certainly the highest ranking employee in his department. Like Garrison, he was
appointed by the mayor with the advice and consent of the city council, met one-on-one
with the mayor and aldermen, had a staff, and prepared a budget.
Embrey does not appear to have crafted “policy” as directly as did Garrison,
whose responsibilities included “develop[ing] programs for neighborhood rehabilitation .
. . and to promote and secure economic development.” Id. at 875. The Seventh Circuit
has recognized, however, that employees whose primary responsibility is the provision
of basic services can qualify for the policymaking exemption:
The primary function of any local governmental entity is the provision of services
[including] quasi-utility functions such as water, garbage, and sewage services.
Elections often turn on the success or failure of the incumbent to provide these
services, and, as campaigns develop, the opposing sides put forth varying
proposals about how best to provide services. While the ultimate goal of all sides
might be the same, there is clearly room for principled disagreement in the
development and implementation of plans to achieve that goal. Therefore, the
fact that plaintiff's position concerned the provision of water to all citizens does
not mean that the Water Department had no goals about which there could be
principled disagreements.
Tomczak v. City of Chicago, 765 F.2d 633, 642 (7th Cir. 1985). “Policymaking and
policy implementation may occur at many levels, even within a particular office whose
sphere of authority is narrowly circumscribed.” Selch, 5 F.3d at 1046.
Embrey testified that it was his responsibility to
[m]anage the day to day, any – any decision or – as far as anything that needed
to be taken care of, I took care of. I managed all the employees, I scheduled all
the work, basically checked on all the work, made sure it was done. I also
carried on my duties as foreman when I was the commissioner, which meant
payroll, scheduling.
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Embrey Dep. at 16:4-10. He testified that he had the authority to discipline and
suspend employees, that he was the only employee in his department who was not
subject to a collective-bargaining agreement, and that he sat in on union negotiations as
a management representative. He attended “department head meetings” convened by
the mayor, at which he “always encouraged any other department head, if they had
anything that they needed from the public works, to let me know,” indicating that he had
the ability to authorize other actions by or on behalf of his department. Id. at 22:9-11.
All of these tasks involved “goals about which there could be principled disagreements,”
see Tomczak, 765 F.2d at 642, as illustrated by Embrey’s disagreement with
Manousopoulos over the issue of grass cutting.
The strongest piece of evidence in Embrey’s favor is his testimony that he did not
personally determine which streets were to be resurfaced. Embrey Dep. at 16:21-25.
Instead, an outside consulting firm made those determinations in consultation with the
city council. This indicates that, unlike the plaintiff in Selch, who was also a road
commissioner, Embrey does not appear to have had “almost unbridled authority to
determine where and when . . . work was to be done.” See Selch, 5 F.3d at 1045.
Embrey’s responsibility for scheduling, however, indicates that, like Selch, he was able
to decide when work was done and in what sequence. Also like Selch, Embrey’s
diverse slate of responsibilities indicates that his “effective implementation of road
maintenance policy in diverse geographic areas entailed more than ensuring that
maintenance procedures were completed.” See id. at 1046. This is all the more
apparent because, unlike Selch, Embrey’s position as Commissioner was not one that
“falls at the lower end of the management hierarchy.” Id. at 1047.
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The district court in Selch noted that Selch’s position did not appear to fall cleanly
within the guidelines established by Nekolny, which states that an exempt position is
one that entails the provision of “meaningful input into government decisionmaking on
issues where there is room for principled disagreement on the goals or their
implementation.” See Nekolny, 653 F.2d at 1170. In a description that could apply
equally to Embrey’s position, the district court found that
[a]t least in terms of Mr. Selch's communications with his superiors, it would be a
stretch to say that his job entailed “meaningful input into government decision
making.” Except for the information he supplied in conjunction with the budgeting
process, there was little evidence that he was relied upon to provide critical
information or other “input” to the hierarchy of the highway department.
Moreover, if the term “goals” is broadly construed, there was little room for
disagreement over Mr. Selch's goals. Broadly put, Mr. Selch's goal was simply to
insure that the road construction and maintenance work in his subdistrict was
effectively and speedily undertaken.
Selch, 5 F.3d at 1043 (internal quotations and citation omitted). The Seventh Circuit
nonetheless upheld the district court’s finding that, despite Selch’s limited discretion with
regard to the actual making of policy, the position entailed a “significant amount of
responsibility” and an “ability to ‘threaten the goals of the in-party,’” making “political
affiliation . . . an appropriate requirement.” Id.
The Court concludes that Embrey possessed abilities and responsibilities similar
to those of the plaintiff in Selch. Embrey’s duties, like Selch’s, “were not strictly
circumscribed and, according to his own [description], required something substantially
more than simple ministerial competence.” See Tomczak, 765 F.2d at 642. Although
Embrey’s position did not carry as much authority as some positions that have qualified
for the policymaking exemption, the supervisory and management responsibilities he
exercised as head of his department clearly distinguish it from positions that have not.
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See, e.g., Mitchell v. Randolph, 215 F.3d 753, 756-57 (7th Cir. 2000) (finding that a
position that was essentially “clerical in nature” was not exempt from First Amendment
protection); Vajner v. City of Lake Station, Ind., No 09 C 245, 2011 WL 1671637, at *6
(N.D. Ind. May 3, 2011) (finding employee not exempt when her authority did not
include supervising employees or involve “discretionary judgment, management
oversight, or meaningful participation”).
For these reasons, the Court grants defendants’ motion for summary judgment
on counts one and four.
2.

Remaining claims
In count seven of Embrey’s complaint, he alleges that defendants violated his

First Amendment rights by giving him an undesirable assignment in retaliation for his
having initiated this lawsuit and testified at a deposition. Although the parties’ Local
Rule 56.1 statements briefly describe the relevant events, their briefs include no
discussion of the issue. Indeed, defendants do not even specifically request summary
judgment on count seven in their briefs, stating only that the “Court’s determination in
favor of defendants on [the policymaking exemption issue] will dispose of Counts I, IV,
and VI.” Defs.’ Mem. at 11.
Even if this somehow reflects only a typographical error on defendants’ part, the
allegations in count seven implicate facts and legal principles that differ from those
involved in the First Amendment claims regarding Embrey’s demotion. Summary
judgment on this count therefore would not follow from defendants’ arguments regarding
the policymaking exemption even if they had expressly requested it. The Court is
disinclined to grant summary judgment on a claim on which defendants have not made,
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and Embrey has not responded to, any argument. See Walker v. Sheahan, 526 F.3d
973, 980 (7th Cir. 2008) (reversing grant of summary judgment based on an argument
“never raised” by movant where non-movant “had no notice that the adequacy of his
retaliation evidence was being challenged”); cf. Golden Years Homestead, Inc. v.
Buckland, 559 F.3d 457, 462 (7th Cir. 2009) (upholding grant of summary judgment on
count not expressly addressed by movant when non-movants “took the opportunity in its
response to the motion to present its evidence and argument”).
The Court therefore declines to grant summary judgment on count seven but
invites defendants to submit a motion for summary judgment that addresses this claim if
there is an appropriate basis for them to do so. The Court further postpones
consideration of Embrey’s state-law claims and the alderman defendants’ second
motion for summary judgment until after determining whether defendants will seek
summary judgment on count seven.
Conclusion
For the reasons stated above, the Court grants defendants’ first motion in part
and denies it in part [docket no. 56] and enters summary judgment in favor of
defendants on counts one and four of Embrey’s complaint. The case is set for a status
hearing on January 25, 2012 at 8:45 a.m., in chambers, to set a schedule for further
proceedings.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: January 18, 2012

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