Schlessinger v. The Chicago Housing Authority et al
Filing
115
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 9/16/2015. Mailed notice(mjc, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID SCHLESSINGER,
)
)
Plaintiff,
)
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v.
)
)
THE CHICAGO HOUSING AUTHORITY, )
JESSICA PORTER (in her individual
)
capacity), and KEN LOVE (in his
)
individual capacity),
)
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Defendants.
)
Judge Joan B. Gottschall
Case No. 12 C 3733
MEMORANDUM OPINION & ORDER
Plaintiff David Schlessinger (“Plaintiff” or “Schlessinger”) alleges that defendants
Chicago Housing Authority (“CHA”) and CHA’s former Senior Vice President of the Housing
Choice Voucher Program, Jessica Porter, violated his First and Fourteenth Amendment rights by
retaliating against him for opposing their improper conduct.1 Now before the court is the
defendants’ motion for summary judgment. For the reasons explained below, the motion is
granted.
I.
NORTHERN DISTRICT OF ILLINOIS LOCAL RULE 56.1
Before addressing the merits of the defendants’ motion, the court turns to the defendants’
objection to Schlessinger’s Statement of Additional Facts (“SAF”). Under Local Rule
56.1(a)(3), a party moving for summary judgment must submit “a statement of material facts as
to which the moving party contends there is no genuine issue and that entitle the moving party to
judgment as a matter of law.” Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)
1
In his opposition brief, Schlessinger voluntarily withdrew his claim against Ken Love, the
former Director of Inspections for CVR Associates, Inc., a subcontractor of CHA.
(citing L.R. 56.1(a)(3). Local Rule 56.1(b)(3) then requires the nonmoving party to submit a
“concise response” to each statement of fact, “including, in the case of any disagreement,
specific references to the affidavits, parts of the record, and other supporting materials relied
upon.” L.R. 56.1(b)(3)(B). The nonmoving party may also present a separate statement of
additional facts “consisting of short numbered paragraphs,” with citations to the record, that
require the denial of summary judgment. See L.R. 56.1(b)(3)(C); see also Ciomber v.
Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).
If the nonmoving party offers a separate statement of additional facts, the statement is
limited to forty paragraphs, unless the nonmoving party obtains prior leave from the court. Here,
the defendants object to Schlessinger’s Statement of Additional Facts because it contains
109 separate paragraphs, and Schlessinger did not seek leave from the court to file the excess
paragraphs. L.R. 56.1 imposes the 40-paragraph cap to force parties to introduce only material
facts. As the Committee Comment to L.R. 56.1 explains, “[t]he judges of this Court have
observed that parties frequently include in their L.R. 56.1 statements facts that are unnecessary to
the motion and/or are disputed,” and “that in the vast majority of cases, a limit of . . . 40
assertions of additional statements of fact will be more than sufficient to determine whether the
case is appropriate for summary judgment.” The Committee Comment adds that a nonmoving
party may obtain a “relaxation” of the 40-statement limit by showing that the “complexity of the
case” necessitates additional paragraphs. In this case, Schlessinger made no such showing. As a
consequence, the court strikes paragraphs numbered 41 through 109 and considers the
information presented in them only for context.
Additionally, Schlessinger violated Local Rule 56.1 and the law of this district in other
respects. First, Schlessinger’s response to the defendants’ statement of material facts improperly
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denies many of the defendants’ numbered paragraphs. Local Rule 56.1(b)(3) requires the party
opposing a motion for summary judgment to submit “a response to each numbered paragraph in
the moving party’s statement. . . .” L.R. 56.1(b)(3)(A)-(B). Although Schlessinger submitted a
statement with numbered paragraphs corresponding to the defendants’ paragraphs, none of
Schlessinger’s paragraphs contain “responses” that clarify the facts in dispute. Instead, where
Schlessinger disputes a statement, he merely writes, “Disputed,” and cites to paragraphs from his
Statement of Additional Facts, not the record itself.
While this approach may have saved Schlessinger’s counsel time, it merely shifted that
expenditure of time onto the court. Schlessinger disputes twelve of the defendants’ eighty
statements of fact. For each paragraph in dispute, the court had to review the paragraphs
Schlessinger cited from his Statement of Additional Facts, analyze the cross-referenced record
citations, and ascertain whether those record citations were not only responsive to the numbered
paragraph in the defendants’ Statement of Fact, but raised a genuine dispute.
More often than not, Schlessinger cited to paragraphs from his Statement of Additional
Facts that had nothing to do with the paragraph he was addressing in the defendants’ Statement
of Facts. Consequently, the court deems all paragraphs in the defendants’ Statement of Facts
admitted insofar as the record supports them and Schlessinger’s denials are unresponsive. See
Raymond v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006) (“district courts are entitled to
expect strict compliance with Local Rule 56.1”); Flores v. Giuliano, No. 12-cv-162, 2014 WL
3360504, at *2 (N.D. Ill. July 9, 2014).
Furthermore, Schlessinger’s legal memorandum lacked sufficient citations to the parties’
Local Rule 56.1 statements. “Courts in this district [ ] repeatedly have held that, in memoranda
of law filed in support of, or in opposition to, motions for summary judgment, parties should cite
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to the specific Local Rule 56.1 statements of fact in support of their arguments, not to the record
directly.” Abdel-Ghaffar v. Ill. Tool Works, Inc., No. 12-cv-5812, 2015 U.S. Dist. LEXIS
111940, at *16-17 (N.D. Ill. Aug. 24, 2015) (citing cases). Here, however, Schlessinger cited to
neither the parties’ L.R. 56.1 statements nor the record in his recitation of the facts.
As a result, Schlessinger’s recitation of the facts was relatively useless. Although it
apprised the court of what Schlessinger believes is the relevant timeline, it placed the onus of
constructing that timeline on the court. See Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir.
2011) (L.R. 56.1 “is designed, in part, to aid the district court, ‘which does not have the
advantage of the parties’ familiarity with the record and often cannot afford to spend the time
combing the record to locate the relevant information,’ in determining whether a trial is
necessary.”) (citation omitted).
II.
FACTS
A. Schlessinger
Schlessinger is a landlord who participated in the Housing Choice Voucher (“HCV”)
program, the federal government’s Section 8 program that provides assistance to renters in the
private market. Under the HCV program, once a program participant has located an approved
rental unit, a local public housing agency, such as CHA, pays the landlord a rent subsidy.
Schlessinger entered the HCV program in 2005, when CHA signed a Housing Assistance
Payment (“HAP”) Contract with him, so that he could lease one of his units to a program
participant. Pursuant to that contract, CHA paid a portion of the monthly rent on behalf of the
tenant directly to Schlessinger. Schlessinger has since executed several HAP Contracts with
HAC on properties he owns.
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B. The CHA Housing Inspection Process
One of the requirements a landlord must satisfy to participate in the HCV program is the
successful completion of a housing inspection on the proposed rental unit. HUD mandates that
all properties pass an inspection before the HAP Contract is signed and at least once annually
during the term of the contract. See Defs.’ Ex. 7. The standards for an inspection are HUD’s
“Housing Quality Standards” (“HQS”), which refer to the “combination of both HUD and
[CHA’s] established requirements.” Id. at 8-1. CHA inspectors, comprised of employees and
independent contractors, are trained to inspect properties to determine whether they meet the
HQS.
If a property fails an HQS inspection, CHA notifies the tenant and the owner of the
violation and advises whether the deficiency is the responsibility of the tenant or owner. The
responsible party has twenty-four hours to repair emergency or life-threatening violations and
thirty days to repair other violations. The property is then re-inspected. If the repairs are not
made within the respective time allotted, CHA provides the responsible party with a notice of
intent to terminate his or her Housing Assistance Program benefits. If an owner’s benefits are
terminated, the owner’s rent subsidies are discontinued and abated effective the last day of the
month that the violation was first identified.
C. Schlessinger’s 2009 Complaints
Schlessinger began complaining to CHA about its inspections conducted at his properties
in 2009. His complaints are reflected in the handouts he distributed during a CHA Board of
Commissioners meeting in May 2009. See Defs.’ Ex. 10. Included in those handouts were
emails that Schlessinger sent regarding re-inspections that two of his properties had to undergo
after failing prior inspections. He also included a copy of an email that he sent on May 14, 2009,
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to a representative of CHA and one of its inspection contractors, McCright & Associates
(“McCright”). The email was titled, “Department of Housing and Urban Developement [sic]
Complaint,” and it described at length Schlessinger’s views that CHA inspectors:
1) were incompetent; 2) were negligent; 3) were improperly trained; 4) did not
follow the proper inspection guidelines; 5) cited him for deficiencies that were the
responsibility of the tenant; 6) cited him for violations that did not exist; 7) did
not appear for inspection at the scheduled time; 8) improperly abated his
properties; and 9) failed him for items that [he] had previously been told passed.
Defs.’ SOF ¶ 15 (undisputed). At the end of the email, Schlessinger wrote:
Also, please be advised that I will be attending the meeting of the CHA Council,
on May 19, 2009, to bring these matters to their attention. I truly regret that this
situation has escalated as such, however; I feel you and your organization have
left me with no other choice and it is of my belief, that if I do not take action
immediately, I will continue to be subjected to this unnecessary and wasteful
inconvenience and monetary losses.
Defs.’ Ex. 10.
Also included in the handout was a letter Schlessinger sent to Steve Meiss, a HUD
official, on May 15, 2009. The letter reflects a phone conversation that Schlessinger had with
Meiss the previous day regarding Schlessinger’s complaints against CHA and McCright.
Schlessinger wrote that
[i]t [was] his belief that they have been ignoring their obligations and
responsibilities to HUD and the community to properly train and monitor their
inspectors, and to provide adequate and sufficient managerial support to correct
the issues in a timely manner, when the inspectors do not do their job in a
competent manner.
Defs.’ Ex. 10. Schlessinger proceeded to describe over thirty instances in which inspectors had
erroneously assessed violations against his properties. Although he “fe[lt] that” his letter
contained “enough evidence to prove his [ ] allegations,” he offered to provide “additional
inspection reports” of his properties. Id. Schlessinger continued, “As you can calculate from the
above foot notes, these inspectors [sic] incompetence has cost me thousands of additional dollars
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per month in improperly determined responsibility of fail items.” Id. He concluded by thanking
Meiss for taking “the entire matter, carefully, into consideration.” Id.
Schlessinger does not dispute that “[t]he overwhelming majority of [his 2009] written
complaint concerned [his] properties.” See Pl.’s Resp. to Defs.’ SOF ¶ 18.
D. Schlessinger’s 2011 Complaints (March to July)
Sometime between “the months of March through June 2011,” Second Am. Compl. ¶ 13,
Schlessinger allegedly attended another CHA Board of Commissioners meeting to criticize CHA
for its handling of property inspections. Although Schlessinger cannot recall when or where the
meeting took place, or precisely what he said, he remembers airing “[t]he same complaints that
[he made] in 2009.” Schlessinger Dep. 67:6-10. He also recalls complaining about CHA’s
“customer service,” “internal communications between departments,” and waste of public funds.
Id. 67:9-13.
On July 27, 2011, Schlessinger called Zill Khan, Assistant to the Director of Public
Housing for HUD. Schlessinger testified that he was attempting to “contact[] the highest”
ranking official at HUD who would hear his complaints against CHA. Id. 80:19-81:3. That
same day, Schlessinger put his oral complaint to Khan in writing and sent a fax to HUD. The fax
contained results for an inspection at one of Schlessinger’s properties that Schlessinger believed
exemplified “CHA’s incompetence.” Id. 77:21-25.
Shortly thereafter, Schlessinger sent an email to Porter titled, “URGENT MATTER
PLEASE ADVISE.”2 See Pl.’s Ex. 12. The first sentence informed Porter that “[t]he following
SEVEN PAGE disorganized, erratic, and inaccurate inspection results for one of [Schlessinger’s]
2
Schlessinger carbon copied Meiss on the email.
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properties were just faxed to Mr. Steven Meiss, Director of Public Housing, HUD.” Id.
Schlessinger further wrote:
As you may recall, the last time I filed a complaint with HUD, prior to our
meeting, I had advised you that Mr. Meiss had instructed me to let him know at
any time in the future, if CHA continued to complete inspections incompetently
or inaccurately. I am continuing to have the exact same problem that I was
encountering prior to meeting you.
THREE inspections in the past 90 days have been inconsistent, inaccurate,
incompetent, has [sic] identified incorrect or non existent [sic] fail items, and
inaccurately put the responsibility of several fail items on the landlord that should
be the responsibility of the tenant. . . . I cannot, nor should I be expected to,
continue to have to contact Mr. Love on EACH AND EVERY INSPECTION that
is being done on my properties. I do not have the time nor the patience, to
continue to deal with such incompetence. . . .
Could you please advise me the date, time, and location of the next Board
Meeting? It looks like I will have to start going to the meetings again because we
are right back to the point where I first met you when you assured me that you
would make sure that these type of inspections would not happen again! I will
not be able to continue to be patient and loose [sic] time and money due to the
incompetent inspectors that CHA has hired since Mccright has no longer been
doing the inspections.
Your immediate attention to this matter of great importance is greatly appreciated.
Id.
Porter responded to Schlessinger’s email by apologizing for not speaking to him when he
tried calling her earlier that day. She also informed him that she would review his complaints
and contact him the following day.
E. Reclassification of 107 W. 110th St.
On August 10, 2011, CHA sent Schlessinger a Notice of Intent to Terminate Christine
Pearson, an HCV Program participant and resident of 107 W. 110th St., one of Schlessinger’s
properties. Previously, Schlessinger had received an Inspections Results Notice, dated April 22,
2011, confirming that this same property had passed CHA’s initial inspection for Pearson’s
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tenancy. Schlessinger alleges that the reclassification of the passed inspection to a fail was
retaliation for the disclosures he had made to Porter and Love on August 10, 2010. See Second
Am. Compl. ¶¶ 16-17.
It is now undisputed that CHA’s contractor, CVR, erroneously sent pass notices to
approximately 1000 unit owners, including Schlessinger, whose properties had failed
inspections. Michael Tonovitz, Senior Vice President of CVR, and Myisha Boulware, a CVR
employee, testified that CVR was responsible for sending pass/fail notices to landlords. When
the error was detected, CVR took corrective action, including notifying the owners of the
affected units that they had failed their inspections.
F. Schlessinger’s August 16, 2011 Email
On August 16, 2011, Schlessinger sent an email to Porter titled, “URGENT MATTER
FOR IMMEDIATE HUD REVIEW.” See Pl.’s Ex. 17. He began the email by writing:
I would like to recall your attention to our phone conversation of last week
whereby you, Mr. Love, and I, [sic] had discussed several, severe, and specific
problems that were causing major and unnecessary monetary losses to both
myself and HUD fiduciary funds . . . . and the incompetent, inaccurate, and
disorganized inspections that are continuously being conducted on most every
[sic] past and recent inspection that I have encountered since CHA took back
control of the inspections process [sic] January 1, 2011.
Id. Schlessinger continued, “In that conversation I had provided you with specific inspections
and even emailed you proof of this incompetence by providing you with inspection reports. . . .”
Id. Schlessinger indicated that he “would appreciate [Porter’s] confirmation of these
inaccuracies and mistakes on the part of the CHA, and an immediate response as to each
individual complaint containing a time frame as to when [he] might expect closure on these
matters.” Id.
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Included in the list of specific “matters” Schlessinger presented to Porter was the
reclassification of the inspection results for 107 W. 110th St. Schlessinger contended that the
property had passed an inspection in April 2011 and was inexplicably reclassified as a fail in
August 2011. He then asked, “Is my rent going to be abated erroneously and unjustified because
of this? This happens ALL THE TIME!!!!” Id.
Later that same day, August 16, 2011, Schlessinger participated in a teleconference with
Porter, Love, Ana Vargas, the CEO of CVR, and Keith Coleman, Inspections Manager at CVR.
Porter chaired the teleconference and initiated the call. During the teleconference, Schlessinger
explained that he had received a notice mistakenly reclassifying the April 2011 inspection of 107
W. 110th St. to a fail. Schlessinger then asserted that the reclassification of the inspection was
unfair and in retaliation for the complaints he had made to CHA and HUD.
Either before or after this teleconference, but sometime on August 16, 2011, Schlessinger
also sent a fax to Meiss at HUD.3 The cover page of the fax stated:
Dear Mr. Meiss: Per my conversation with your assistant, Zill Khan, he requested
I put my complaint against CHA in writing [and] fax it to you. Please review and
call me at 773-339-XXXX. It is extremely important these issues get resolved as
soon as possible. I have not been getting anywhere working with CHA directly.
Please advise.
See Pl.’s Ex. 18.
G. The Re-inspection of 107 W. 110th St.
On August 17, 2011, Coleman re-inspected Schlessinger’s property, 107 W. 110th St.
Schlessinger was present for most, but not all, of the re-inspection. CHA generated Inspection
Results Notices addressed to Schlessinger on August 19, 2011 and August 22, 2011. Although it
3
Schlessinger submitted only the cover page of the fax into the summary judgment record.
See Ex. 18. The exhibit does not include the twenty-six pages that allegedly accompanied the
fax or the confirmation page showing that the fax was actually transmitted.
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is unclear whether Schlessinger received a copy of the August 19, 2011 notice, he acknowledges
that CHA served the August 22, 2011 notice on him on August 22, 2011. The notice apprised
Schlessinger that the property failed the re-inspection. The notice also warned him that the
violations identified in the “inspection report” qualified as “24-Hour Life Threatening
Conditions,” as opposed to “Non-Life Threatening Conditions,” and thus needed to be corrected
within twenty-four hours. The notice clarified that CHA would re-inspect the property within
forty-eight hours, and that Schlessinger’s failure to comply within that time frame would result
in the abatement of his Housing Assistance Payment and the termination of his HAP Contract.4
After receiving the August 22, 2011 notice, Schlessinger contacted Porter to request a
copy of the HQS Inspection Report, which he claimed the notice did not include.
H. Porter’s August 26, 2011 Letter to Schlessinger
On August 26, 2011, Porter sent Schlessinger a letter summarizing the results of CHA’s
investigation into his complaints and the allegations he had been making. See Pl.’s Ex. 27.
Porter wrote:
4
Section 8-14 of CHA’s Administrative Plan for the HCV Program articulates CHA’s
“HAP Abatement” policy:
If an owner fails to correct HQS deficiencies by the time specified by [the Public
Housing Agency (“PHA”)], HUD requires the PHA to abate housing assistance
payments no later than the first of the month following the specified correction
period (including any approved extension). . . . The CHA will make all HAP
abatements effective the first of the month following the expiration of the CHA
specified correction period (including any extension). The CHA will inspect
abated units within 7 calendar days of the owner’s notification that the work has
been completed. This inspection will not take place if the HAP Contract has been
terminated. Payment will resume effective on the day the unit passes inspection.
See Defs.’ Ex. 7 at 8-14.
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Dear Mr. Schlessinger:
In response to your recent correspondence and our lengthy phone conversation on
August 16, 2011, CHA has investigated your allegations that CHA is not properly
administering its Inspections Department and reviewed the examples you
provided to support your claim. As part of this dialog, you demanded this matter
be given our immediate attention and CHA has honored this request.
CHA’s investigation revealed part of the problem is your pattern of routinely
cancelling scheduled inspections the day before or the day of the re-inspection.
Often, instead of following the Administrative Plan and Inspection Guidelines
that requires [sic] contact to the Inspections Call Center, which handles inspection
scheduling, you circumvented the process by calling to [sic] supervisory staff to
submit last minute cancellation requests. Your circumvention of the proper
protocol has, on many occasions, rendered CHA unable to remove these
inspections from inspector routes in a timely manner, resulting in unnecessary
trips to properties. As you are aware, when the tenant is not present for scheduled
inspections, the issuance of termination notices occurs. It is emotionally
detrimental to tenants to receive such notices, especially when the tenant was not
actually at fault. Your pattern of cancellations presumably indicates a lack of
taking prompt action to make required repairs to units on a regular basis.
Id.
Porter then addressed Schlessinger’s “specific complaints,” including his complaint
related to CHA’s reclassification of the inspection results for 107 W. 110th St:
This unit failed inspection on February 28, 2011, based on a list of cited
deficiencies. Due to an administrative error, CHA inadvertently issued a letter on
April 18, 2011, erroneously, stating the unit passed the inspection. The error was
subsequently corrected to indicate the unit was in a failed condition based upon
the deficiencies still present on April 18. Your assertion is the April 18th letter
passing the unit was correct because the required repairs were completed by April
18, 2011.
After stating you would supply written certification that the repairs were
completed as of April 18, 2011, your self-certification was received on August 17,
2011. Per our conversation, CHA agreed to send Mr. Keith Coleman to the unit
on August 17 to perform another re-inspection regarding whether the cited
deficiencies were corrected. Mr. Coleman found the unit in a deplorable
condition with damages far beyond normal wear and tear, including 9 of the 14
previously cited deficiencies still present.
Additionally, 51 other HQS violations were readily observed [sic] which the CHA
obtained extensive documentation including photographs and videos to show the
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condition of the unit. As you are aware, the CHA has an obligation to cite any
new deficiencies observed during a re-inspection.
These deficiencies, many in plain sight and visible to the naked eye, include but
are not limited to:
Electrical Hazards
Plumbing Problems
Deteriorated Paint that must be corrected using Lead Safe Work Practices
Tenant Caused Damages including emergency items and insect infestation
Structural Damage that may be the result of long term plumbing leaks
Overall unsanitary conditions
During this inspection, you informed Mr. Coleman that you did not intend to
make the necessary repairs. During our conversation, you stated you are currently
dealing with the City Building Department regarding this unit. Based upon your
statements, we are obligated to follow up with the City because notification of
Code Violations at a unit requires the immediate abatement of assistance . . . .
Mr. Coleman’s inspection of the unit revealed a series of readily evident and
egregious violations of HQS, including concerns of an emergency nature, lead
based paint hazards, and other deplorable conditions and the presence of
unauthorized tenants, including small children who could be seriously harmed by
these violations. The physical evidence in the properties which you claim meets
HQS contradicts your representations of being an exemplary owner and manager.
These deficiencies indicate a disregard to meeting your obligations, pursuant to
the HAP Contract for this unit, to maintain it in accordance with Housing Quality
Standards. Therefore this matter is being turned over to our Legal Department for
further review.
Id.
Schlessinger does not dispute that he was cited for over 50 HQS violations twice in the
four months preceding the August 17, 2011 re-inspection. See Defs.’ SOF ¶ 27 (undisputed). Nor
does Schlessinger dispute that his properties have been cited for multiple HQS violations
virtually since he began participating in the HCV Program. Id. ¶ 42 (undisputed); see also Defs.’
Exhibit 19 (showing previous inspection results for Schlessinger’s properties, including 43
owner violations on 10/3/2006, 30 owner violations on 12/4/2007, 45 owner violations on
3/20/2009, 34 owner violations on 10/5/2010, 59 owner violations on 4/12/2011, and 64 owner
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violations on 7/18/2011). Schlessinger agrees that some of the violations Coleman found on
August 17, 2011 were present. Id. ¶ 28.
III.
LEGAL STANDARD
Summary judgment is appropriate when the movant shows there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;
Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009). “[A] factual dispute is ‘genuine’ only if a
reasonable jury could find for either party.” SMS Demag Aktiengesellschaft v. Material Scis.
Corp., 565 F.3d 365, 368 (7th Cir. 2009). The court ruling on the motion construes all facts and
makes all reasonable inferences in the light most favorable to the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is warranted when the
nonmoving party cannot establish an essential element of its case on which it will bear the
burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).
IV.
ANALYSIS
The sole claim remaining in Schlessinger’s complaint against the defendants is for
retaliation in violation of his rights under the First and Fourteenth Amendments pursuant to 28
U.S.C. § 1983. To prevail on this claim, Schlessinger “must prove that (1) he engaged in
constitutionally protected speech; (2) the defendants, as public officials, engaged in adverse
conduct against him; and (3) the defendants were motivated, at least in part, by his protected
speech.” Bivens v. Trent, 591 F.3d 555, 559 (7th Cir. 2010). Defendants move for summary
judgment, in part, on the ground that Schlessinger did not engage in constitutionally protected
speech.5
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The defendants also contend that they are entitled to summary judgment because (1) there
is no causal connection between Schlessinger’s speech and the retaliatory acts he alleges; (2) no
evidence exists that any person with final policy-making authority took a retaliatory action; and
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To determine whether speech is constitutionally protected, “[c]ourts apply the two-step
analysis established in Connick v. Myers, 461 U.S. 138 (1983). . . .” See Chicago United Indus.,
Ltd. v. City of Chicago, 685 F. Supp. 2d 791, 812 (N.D. Ill. 2010) aff’d, 669 F.3d 847 (7th Cir.
2012) (citing Brooks v. University of Wisconsin Bd. of Regents, 406 F.3d 476, 479 (7th
Cir.2005)). The first step is an inquiry into “whether the plaintiff engaged in speech that
addressed a matter of public concern.” Chicago United Indus., 685 F. Supp. 2d at 812. “If this
hurdle is cleared,” the court then “must balance ‘the employee’s interest in commenting upon
such matters and the employer’s interest in efficient public services.’” Gazarkiewicz v. Town of
Kingsford Heights, Indiana, 359 F.3d 933, 940 (7th Cir. 2004) (quoting Wainscott v. Henry, 315
F.3d 844, 848 (7th Cir.2003)).
The defendants contend that Schlessinger cannot pass the first step in the Connick inquiry
because he spoke purely on matters of personal concern. Speech is considered “a matter of
public concern if it relates to any matter of political, social, or other concern to the community.”
Id. at 849 (internal quotation and citation omitted). Gazarkiewicz, 359 F.3d at 940-41.
“Conversely, speech is not a matter of public concern if it involves a personal grievance of
interest only to the [speaker].” Id. “Whether a statement is a matter of public concern is a
question of law . . . and [courts] answer this question by examining the content, form, and
context” of the statement. Bivens, 591 F.3d at 560 (quotation marks omitted). Of these factors,
“content is the most important. . . .” Gazarkiewicz, 359 F.3d at 941.
Here, Schlessinger asserts that he engaged in constitutionally protected speech when he:
(1) appeared at a CHA Board of Commissioners’ meeting “[i]n between the months of March
(3) Porter was not individually involved in the alleged retaliatory acts. It is unnecessary for the
court to consider these issues because the court concludes that Schlessinger’s speech was not
protected by the First Amendment.
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through June 2011,” Second Am. Compl. ¶13, to complain about CHA’s “improper use of
federal funding . . . that cost taxpayers, HCV landlords and participants unnecessary monetary
loss”; and (2) emailed Porter on August 16, 2011 to criticize “the unlawful pass/fail notices and
the unwarranted abatements assessed against him.” See Pl.’s Opp. at 9. Schlessinger contends
that the First Amendment shields these statements because he was protesting government waste,
which courts have recognized constitutes a topic of public concern. See, e.g., Wainscott v.
Henry, 315 F.3d 844, 849 (7th Cir. 2003).
In cases such as this, however, where “a personal grievance” concerns a subject of public
interest, “it is necessary to look at the point of the speech in question: was it the [speaker’s] point
to bring wrongdoing to light? Or to raise other issues of public concern, because they are of
public concern? Or was the point to further some purely private interest?” Bivens, 591 F.3d at
561 (quotation marks and citation omitted). In Bivens, the Seventh Circuit affirmed the district
court’s grant of summary judgment in favor of the defendants on the plaintiff’s First Amendment
retaliation claim. Id. at 557. The plaintiff, an officer in the Illinois State Police, complained to
his superiors and filed a grievance after he discovered that he had elevated levels of lead in his
blood; the plaintiff worked in an indoor firing range and was exposed to lead contamination in
the facility. Id. Following the denial of his request for workers’ compensation benefits, he sued
his superiors under Section 1983, alleging that they retaliated against him for complaining about
the conditions at the firing range. Id.
The controlling issue, as the Seventh Circuit stated, was “whether the context, form, and
particular content (as opposed to the subject matter) of the speech indicate that [the plaintiff]
complained for the purely private purpose of resolving a workplace issue.” Id. at 561. Though
“the context of the [plaintiff’s] grievance” touched on “a subject of potential interest to the
16
public,” that fact did not “convince [the court] that his purpose was anything other than
personal.” Id. Like a teacher complaining about class size and discipline “in response to
criticism of her performance,” Cliff v. Bd. of Sch. Comm’rs of City of Indianapolis, Ind., 42 F.3d
403, 411 (7th Cir. 1994), or a police detective complaining about “pervasive violations of an
anti-smoking ordinance” to alleviate the “difficulties the speaker himself had experienced,”
Smith v. Fruin, 28 F.3d 646, 652 (7th Cir. 1994), the plaintiff in Bivens filed his grievance “for
the sole purposes of securing his own medical treatment and ensuring he had a safe working
environment.” Bivens, 591 F.3d at 562. Thus, “even if the public would have been interested in
lead contamination at the range, or would have benefitted from the remediation that [the
plaintiff] requested,” the Seventh Circuit found that the plaintiff’s internal grievance was not
protected by the First Amendment because it “address[ed] only the effect of lead contamination
on himself and his work environment. . . .” Id.
Similar to the police officer in Bivens, the teacher in Cliff, and the detective in Smith,
Schlessinger has failed to show that he engaged in constitutionally protected speech. First,
regarding the manner of his speech, Schlessinger submits two sets of statements: (1) the oral
statements he allegedly made before the CHA Board of Commissioners “[i]n between the
months of March through June 2011,” Second Am. Compl. ¶ 13, and (2) his August 16, 2011
email to Porter. With regard to the former, Schlessinger testified that when he spoke at the CHA
Board of Commissioners meeting, he made the made “[t]he same complaints that [he]
complained about in 2009” and criticized CHA for its “customer service,” “internal
communications between departments,” “misuse of funds,” and “incompetence.” See
Schlessinger Dep. 67:6-23. But these “complaints” are merely general subject matters. They do
not apprise the court of what Schlessinger actually said.
17
For his part, Schlessinger cannot recall any specific statements he made at the 2011
meeting. See Id. In fact, he has admitted that he cannot remember the month, much less the
date, of the meeting, even though the meeting allegedly took place approximately a year before
he filed suit. See Defs.’ SOF ¶ 19 (undisputed). Nor does Schlessinger recall where the meeting
was held, the weather conditions at the time, the process for applying to speak, how many people
spoke, or other observations consistent with having actually attended the meeting. Id. The most
concrete information Schlessinger provides to shed light on his alleged oral statements is that
they echoed the complaints he made in his August 16, 2011 letter to Porter. While that letter was
contemporaneous to the 2011 meeting, it is a distinct communication that the court must analyze
separately. See Cygan v. Wisconsin Dep’t of Corr., 388 F.3d 1092, 1099 (7th Cir. 2004) (Courts
“analyze each instance of speech separately to determine its protected status.”) (citing Wright v.
Ill. Dept. of Children & Family Servs., 40 F.3d 1492, 1499 (7th Cir.1994)).
“At the summary judgment stage of a proceeding, a plaintiff must ‘put up or shut up’ and
show what evidence [he] has that would convince a trier of fact to accept [his] version of
events.” Olendzki v. Rossi, 765 F.3d 742, 749 (7th Cir. 2014) (quoting Steen v. Myers, 486 F.3d
1017, 1022 (7th Cir.2007)). Here, Schlessinger’s inability to show that he said anything at all
gives the court no confidence that he could “convince a trier of fact to accept [his] version of
events.” Steen, 486 F.3d at 1022; see also Olendzki, 765 F.3d at 749 (“Without Olendzki’s
identification of his precise statements [at the union meeting], the court has no way to know what
he actually said. While it is possible that his statements warrant protection, it is also possible that
his speech simply addressed his job duties, were general grievances, raised only his own private
interests, or were fighting words—none of which are entitled to First Amendment protection.”);
Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1123 (7th Cir. 2009) (“Nagle does not identify
18
any specific statements that were made at the meeting. While his statements regarding police
manpower could, as a general matter, be of public concern, the subject matter alone does not
convey constitutional protection to his statements.”).
By contrast, the second expression Schlessinger offers as a basis for his claim—his
August 16, 2011 email to Porter—is at least part of the record and contains specific statements
the court can evaluate. However, the form of this speech does not help Schlessinger’s case. Like
the Bivens plaintiff’s grievance, Schlessinger’s email “was entirely internal” between himself
and CHA’s representatives, Porter and Love. Bivens, 591 F.3d at 561. “Although the fact that
[Schlessinger’s email] was entirely internal does not itself render the speech unprotected, this
fact does suggest that the [speech] was personal in nature.” Id. (citation omitted).
Likewise, the context and content of Schlessinger’s August 16, 2011 email are also
“consistent with [his] vindication of a personal interest, rather than a public concern. . . .”6
Bivens, 591 F.3d at 561. A week before sending the email, Schlessinger participated in a
teleconference with Porter and Love, in which he discussed “specific problems that were causing
major and unnecessary monetary losses to both [him]self and HUD fiduciary funds . . . .”
Pl.’s Ex. 17.
Schlessinger’s August 16, 2011 email was a follow-up on this call. He asked Porter to
“confirm[]” CHA’s “inaccuracies and mistakes” and respond to his “individual complaint[s].”
He also requested that Porter respond in a “time frame [that he] might expect closure” on the
“matters” he raised—the matters being the five properties that Schlessinger identified by tenant,
address, and property-specific issue he wanted resolved. For example, one of the properties was
107 W. 110th St., and Schlessinger challenged the reclassification of the inspection on that unit
6
Of course, it is impossible to analyze the context of the oral statements Schlessinger
allegedly made at a CHA Board meeting, as he cannot recall the month it was held.
19
to a fail. Schlessinger then rhetorically asked, ““Is my rent going to be abated erroneously and
unjustified because of this?” and exclaimed, “This happens ALL THE TIME!!!!” Id.
Every aspect of Schlessinger’s August 16, 2011 email indicates that its purpose was to
further his private interests. Schlessinger was not attempting “to bring an issue of wrongdoing . .
. to public light.” Bivens, 591 F.3d at 562. Nor was he trying to raise “a subject of potential
interest to the public.” Id. at 561. Instead, the point of Schlessinger’s email was singular and
self-serving: to resolve issues affecting his property and expected payments. Schlessinger sought
more favorable inspection results, faster responsiveness to his personal complaints, and a
guarantee that his payments would not be abated. Because Schlessinger’s email concerned
matters purely of personal interest, his email falls outside the purview of the First Amendment.7
Accordingly, the court grants the defendants’ motion for summary judgment and
dismisses Schlessinger’s Second Amended Complaint.
ENTER:
/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: September 16, 2013
7
Dismissing Schlessinger’s First Amendment retaliation claim on this ground renders the
court’s striking of Schlessinger’s statements of fact numbered 41 through 109 irrelevant.
Schlessinger addressed his alleged attendance at the CHA Board of Commissioners meeting, as
well as his August 16, 2011 email to Porter, within the first 40 paragraphs of his Statement of
Additional Facts. Thus, even if the court had considered the entirety of his Statement of
Additional Facts, the outcome would not have changed.
20
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