Doyle et al v. The City of Chicago et al
Filing
174
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/30/2015:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK DOYLE, DANIEL
HOULIHAN, JOHN NOLAN, ROBERT
OLSON, MICHAEL PADALINIO,
JOHN PIGOTT, EUSEBIO RAZO,
VERONICA RODRIGUEZ, MICHAEL
ROMAN, RICHARD SOTO, and
CAROL WEINGART,
Plaintiffs,
v.
THE CITY OF CHICAGO, BRIAN
THOMPSON, Individually, TERRY
HILLARD, Individually, RAHM
EMANUEL, Individually,
MICHAEL FAULMAN,
Individually, and GARRY
McCARTHY, Individually, JAMES
JACKSON, Individually
BEATRICE CUELLO,
Individually, and EUGENE
WILLIAMS, Individually,
Case No. 12 C 6377
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
I.
BACKGROUND
The eleven Plaintiffs are current or former Chicago police
officers
who
at
one
Specialist
position.
protection
to
former
visiting dignitaries.
time
As
Mayor
were
Security
Richard
assigned
to
the
Security
Specialists
they
provided
M.
Daley,
as
well
as
to
Unlike other police officers below the
rank
of
sergeant,
Security
equivalent to sergeant=s pay.
Specialists
receive
base
pay
The Defendants are Brian Thompson,
Unit Commander of the Security Specialists (“Thompson”), Terry
Hillard
Police
(“Hillard”),
Department
interim
(“CPD”),
Superintendent
Rahm
Emanuel,
of
Mayor
the
Chicago
of
Chicago
(“Mayor Emanuel”), Michael Faulman, Administrator to the Mayor
(“Faulman”),
Garry
(“McCarthy”),
James
McCarthy,
Jackson,
Superintendent
First
Deputy
CPD
of
Police
(“Jackson”),
Beatrice Cuelo, Assistant Superintendent of Administration CPD
(“Cuelo”),
and
Eugene
Williams,
Chief
of
Patrol
CPD
(“Williams”).
In September 2010, Mayor Daley announced that he did not
intend to seek re-election.
was elected Mayor.
On February 22, 2011, Mayor Emanuel
Daley’s term ended on May 16, 2011, the day
Mayor Emanuel was to be sworn in.
At the time of the election,
the Superintendent of the CPD was Jody Weis (“Weis”).
decided to retire and his last day was March 1, 2011.
the
vacancy
during
the
period
between
Weis’
Weis
To fill
leaving
and
Emanuel’s swearing in, Mayor Daley appointed Hillard as Interim
Superintendent.
Hillard was a 35-year veteran of the CPD and
was Superintendent from 1998 until 2003 when he retired.
He had
vast experience in providing security as he had been a Security
Specialist providing protection to Mayors Jane Byrne and Harold
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Washington.
Moreover, he had no affiliation with Emanuel and
was not involved in his mayoral campaign.
At the time Mayor Daley left office, his security detail
consisted of 21 Security Specialists and two commanders.
The
establishment of the security detail for Emanuel was given to
Hillard.
He met with Emanuel on three occasions and was told
that “he wanted as small a detail as possible and one that
reflected the diversity of the city.”
Hillard choose Thompson
to be the Commander of Emanuel’s security detail because he had
been commander of Daley’s detail since 2000.
During Emanuel’s campaign for Mayor, several CPD officers
volunteered to provide security and to perform other tasks in
aid of his campaign.
Curkan,
Mark
These included Raymond Hamilton, Hakki
Rebecchi,
Mark
Mejia,
Paul
Currincione,
Francisco Gonzalez (Collectively, the “Emanuel Volunteers”).
and
On
February 22, shortly after Emanuel’s election, the CPD made the
decision to provide Emanuel with a security detail until he was
sworn in.
Apparently Faulman made a request or suggestion that
the 6 volunteers be included on the interim detail which was
done.
During the period prior to the swearing in, Hillard put
together Emanuel’s final security detail.
officers
Daley’s
in
addition
detail
to
Thompson
recommended
by
and
included
Thompson,
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It consisted of 16
5
7
members
officers
that
of
had
provided protection to Emanuel during the transition period and
four
officers
recommended
by
other
CPD
command
included Defendants Cuelo, Jackson and Williams.
staff,
which
The total was
6 fewer that had been provided to Mayor Daley.
After Emanuel was sworn in as Mayor, the CPD, as a courtesy
decided to provide former Mayor Daley with a small protective
detail.
A Daley assistant requested Plaintiffs Nolan, Olson,
Roman and Quinn continue to protect Daley.
These officers thus
retained the Security Specialist title and pay.
Hillard did not make the final selections for Emanuel’s
security detail until approximately one week before the swearing
in.
Cuelo was assigned the job of performing the paper work.
On May 13, 2011, Cuelo called the Plaintiffs, the nine officers
(the
“May
13
Plaintiffs”)
who
had
been
assigned
to
Daley’s
mayoral detail but who were not being re-assigned to Emanuel’s
detail,
and
Academy
on
instructed
the
reassignment.
Personnel
Plaintiffs
following
These
Orders
June 21, 2011.
them
to
report
Monday,
reassignments
issued
by
new
May
to
16
were
the
for
CPD
Training
retraining
memorialized
Superintendent
in
McCarthy
and
CPD
on
The four Security Specialists including three
assigned
to
Daley
retained
their
position
until
McCarthy decided to terminate the Daley detail as of September
15, 2011.
On that date the four (the “September 15 Plaintiffs”)
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were
instructed
to
go
to
the
Academy
for
retraining.
This
action was memorialized by McCarthy with a Personnel Order dated
October 21, 2011.
The Plaintiffs, all of whom are members of the Fraternal
Order
of
Police
(“FOP”),
filed
Collective Bargaining Agreement.
grievances
pursuant
to
the
The May 16 Plaintiffs filed on
or before August 12, 2011, and the September 15 Plaintiffs filed
on or before October 9, 2011.
Between June 2011 and December
2011, Plaintiffs Olson, Padalino, Pigott, Rodriguez, Roman and
Soto
filed
Accord
Complaint
forms
with
the
Office
of
the
Inspector General complaining that their re-assignments violated
the Shakman Decree.
The Plaintiffs all filed their complaints
with
Department
the
Illinois
Opportunity
on
August
2012.
13,
August
The
16,
of
2012
Human
and
Complaint,
filed
now
in
Rights
this
its
and
Equal
Complaint
fifth
on
version,
consists of five counts: Count I against the City of Chicago
alleging violation of the Shakman Decree; Count II against the
individual
Defendants
alleging
Section
1983
First
Amendment
violations; Count III against Hillard, and all Defendants except
Faulman,
alleging
Section
1983
Equal
protection
violations;
Count IV against all Defendants except Faulman alleging Section
1981
race
discrimination;
and
Count
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V
against
the
City
of
Chicago
alleging
Title
VII
violations.
The
Defendants
have
moved for summary judgment on all counts.
Before he left office Mayor Daley’s 23 officer security
detail was composed of 14 white males, 1 white female, 4 black
males, 3 Hispanic males and 1 Hispanic female.
The seventeen
officers assigned to Mayor Emanuel’s detail consisted of 8 white
males, 5 black males, 3 Hispanic males, and one Hispanic female.
The four assigned to Mayor Daley consisted of 4 white males.
II.
A.
DISCUSSION
The Political Affiliation - Counts I and II
Count I alleges that the individual Defendants violated the
Plaintiffs’ right to work free from political discrimination,
and Count II alleges that in doing so the City violated the
Shakman Decrees.
The
individual
Defendants
move,
with
the
exception
of
Thompson and Hillard, for summary judgment on Count I on the
basis that they did not have personal involvement in the alleged
constitutional
violation.
The
personal
involvement
of
these
other Defendants, according to Plaintiffs, is that they made
recommendations to Thompson and Hillard that would involve the
hiring of the Emanuel volunteers.
However, the decision as to
whom to retain and whom to reassign was left clearly in the
hands of Thompson and Hillard.
The alleged personal involvement
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of Emanuel and Faulman consisted of selection of the Emanuel
volunteers
as
his
mayor-elect
security
detail
and
Faulman’s
recommendation of the Emanuel volunteers with Emanuel’s apparent
knowledge for his mayoral detail.
and
the
parties
have
suggested
The Court has found no cases,
none,
in
which
Section
1983
liability could rest on the mere act of making a recommendation
as to some employment decision.
If making a recommendation at
the request of an appointing officer will subject that person to
Section 1983 liability, individuals would be reluctant to make a
recommendation.
Cuelo and Jackson merely did the administrative
work in making the appointments.
names at Hillard’s request.
the
time
the
consisted
of
decisions
making
the
Williams provided a list of
McCarthy was not even employed at
were
made
and
decisions
his
final
involvement
through
only
issuance
of
appropriate personnel orders.
There
is
no
acts
administrative
basis
were
to
conclude
taken
for
that
illegal
any
of
these
reasons.
The
Plaintiffs did not make formal complaints until well after the
decisions
were
implemented.
Plaintiffs
cite
Hildbrandt
v.
Illinois Dept. of Natural Resources, 347 F.3d 1014, 1038 (7th
Cir. 2003) in support of their position that these officials had
the requisite personal involvement.
supports
the
Defendants’
However, this case actually
positions.
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That
case
involved
an
alleged discriminatory pay raise granted to a female employee
that was smaller than what was given to her comparable male
colleagues.
supervisor
Section
of
supervisor.
the
The
1983
liability
was
sought
maker
and
also
disclosed
that
decision
evidence
the
against
against
the
his
supervisor
had
actively participated in the meeting at which the raises were
approved, gave requested comments as to the propriety of the
raises, and made suggestions as to changes in the raises.
The
supervisor=s supervisor, on the other hand, was held not to be
liable
because
his
involvement
consisted
of
attendance
and
participation at the meeting at which the raises were discussed.
Here the decisions as to promotion and demotion were solely made
by Hillard on Thompson’s recommendation.
either
responded
to
requests
for
The other defendants
recommendations
or
merely
performed an administerial, non-judgmental act in order to carry
out Hillard’s decisions.
Hillard and Thompson were the two Defendants who made the
decisions as to who was to be kept and who was to be reassigned.
The evidence against them is that they made the decisions to
reassign
the
Plaintiffs
with
the
knowledge
that
their
replacements were both supporters of Emanuel and were requested
by
Faulman.
Thus,
arguably
the
Plaintiffs
have
set
forth
sufficient evidence to show that political considerations were a
- 8 -
motivating factor in the decisions to reassign.
See, Greene v.
Cook County Sheriff’s Office, 2015 WL 514660 at *16 (N.D. Ill.
Feb. 4, 2015).
However, this does not end the inquiry because
the Defendants claim to be entitled to qualified immunity on the
question of whether the Security Specialists are confidential
employees
and
thus
liability.
Here,
reassignments
exempt
from
Greene,
occurred
in
Section
decided
this
1983
four
case,
First
years
came
down
Amendment
after
the
with
the
conclusion that the case law was not firmly established at the
time the political reassignments occurred in that case.
Pallmeyer
in
that
case
also
pointed
out
that
neither
Judge
a
job
description nor a Consent Decree is dispositive on the issue of
clear establishment.
While both can provide a safe harbor, they
are not “straitjackets.”
(7th Cir. 2005).
Riley v. Blagojevich, 425 F3d 357, 365
This also finds support from the United States
Supreme Court in Davis v. Scherer, 468 U.S. 183, 193 (1984).
It
is a constitutional violation that must be clearly established,
not
a
clear
violation
of
a
statutory
or
administrative
provision.
From an objective standpoint it is not clear either that
the job of Security Specialist, whose main duty is to protect
the
mayor
and
his
family,
is
non-confidential.
The
duties
involve close scrutiny of the mayor and his family which could
- 9 -
involve observations of the family in intimate circumstances.
They also involve driving the mayor with his close aides when
they
may
well
subjects.
be
They
discussing
also
involve
important
providing
and
highly
physical
sensitive
safety
and
satisfying emotional concerns that might arise from the fact
that Emanuel is the first Jewish mayor of Chicago and had been
Chief of Staff of the first African-American president of the
United States.
It is therefore not unreasonable for the mayor
to wish to have the right to select is own security staff.
Therefore,
the
Court
finds
that
Hillard
and
Thompson
are
entitled to qualified immunity.
1.
The Claims of Nolan, Roman and Olson
These three Plaintiffs were dealt with differently from the
nine
other
retraining
Plaintiffs.
at
the
police
Instead
academy,
of
they
being
were
reassigned
placed
on
to
the
detail protecting Mayor Daley after his term concluded at his
request.
Thus, they were not reassigned in favor of the new
replacements, and they kept their same position with the same
benefits as before.
adverse
employment
Therefore they were not subjected to an
action.
They
have
made
no
effort
to
establish that there was anything political in this decision
since they kept the same job with the same duties as before,
only not with the new mayor.
They lost their employment as
- 10 -
Security Specialists
because
nothing
to
the
Daley’s
detail,
do
with
decided
Superintendent
decision
to
keep
McCarthy,
the
who
four
that
Mayor
Daley
no
longer
not
attempt
to
make
the
on
had
Mayor
needed
a
security detail.
The
Plaintiffs
do
case
that
eliminating Mayor Daley’s security detail was based on illegal
political reasons.
2.
First,
Weingart
Shakman Claim Against the City of Chicago
the
Plaintiffs
acknowledge
that
Doyle,
the
Houlihan,
City
is
Nolan,
entitled
Razo
to
and
summary
judgment on their Shakman claims because they did not timely
file
Accord
Complaints
with
the
City
Office
of
Inspector
General, or a timely Complaint in federal court as required by
the Consent Decree.
concerning
Olson,
the
the
The Court finds that for the reasons stated
First
City
is
Amendment
likewise
their Shakman claims.
case
entitled
of
to
Plaintiffs
summary
Roman
and
judgment
on
This leaves Plaintiffs, Padalino, Pigott,
Rodriguez and Soto with potentially viable Shakman claims.
The
City
of
Chicago
argues
that
neither
Hillard
nor
Thompson knew the political affiliation of the Mayor Emanuel
appointees, but did know that they had experience protecting
Emanuel.
However, the evidence showed that both Hillard and
Thompson sought recommendations from Mayor Emanuel and Faulman.
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The fact that the Mayor Emanuel volunteers were recommended and
appointed is some evidence that politics may have played a role.
The Security Specialist position was not on the Shakman exempt
list.
So, the City should have conducted an investigation to
ensure
itself
that
politics
did
not
play
a
role
prior
to
executing the Shakman certificates which it arguably did not do.
Furthermore, Hillard made the decision to transition the Mayor
Emanuel
volunteers
without
reviewing
their
job
performance,
meeting with them, or having been told either that they were or
were not doing a good job.
Further, he testified that he did
not have any belief that they were better or worse than those
demoted.
Based on the entire record, the Court believes that
there is sufficient evidence to make a triable issue on the
Shakman claims of Plaintiffs Padalino, Pigott, Rodriguez, and
Soto.
The Motion for Summary Judgment is denied as to these
Plaintiffs, but granted as to Plaintiffs Doyle, Houlihan, Nolan,
Olson, Razo, Roman, and Weingart.
B.
Plaintiffs’ Title VII Claims
The City of Chicago contends that the Title VII claims of
all of the Plaintiffs are time barred.
A Title VII claim is
timely if a charge is filed with the EEC within the 300 day time
period after the discrete discriminatory act occurred.
There
are different dates to consider because there are two groups of
- 12 -
Plaintiffs:
the first group is those who were told they were to
be demoted on May 16, 2011, and the second group is those who
were told they were being demoted on September 15, 2011.
All
Plaintiffs filed charges with the EEC on August 16, 2012 so none
were filed within the 300 day time period.
different
responses
September
15
to
this
Plaintiffs,
Plaintiffs have two
contention.
they
point
First,
out
that
as
to
the
Superintendent
McCarthy did not issue the personnel order until October 21,
2011, thus the demotion did not become irrevocable until that
date which made their charges timely.
They cite Flannery v.
Recording Industry Ass’n of America, 354 F.3d 632, 637 (7th Cir.
2004).
In that case, the court held that the date “must be a
final, ultimate, non-tentative decision” to invoke the adverse
employment decision.
In Flannery, the court explained that where an employer
communicates
a
willingness
to
consider
changing
a
final
decision, “as through an appeal process” the decision would not
be final until that process ran its course.
no appeal process here to run its course.
However, there was
There was a grievance
procedure that was, in fact, utilized by Plaintiffs, but the
Supreme Court has held that the pending of a grievance “by its
nature, is a remedy for a prior decision, not an opportunity to
influence
that
decision
before
it
- 13 -
is
made.”
Delaware
State
College v. Ricks, 101 S.Ct. 498, 506 (1980).
Therefore, summary
judgment on the Title VII claims of the September 15 Plaintiffs
is granted in favor of the City of Chicago.
Second, because the May 16 Plaintiffs were demoted pursuant
to
McCarthy’s
personnel
issued
on
June
21,
2011,
they
acknowledge that their charges were untimely under either date.
They
therefore
claim
that
they
are
victims
violations which makes their notices timely.
of
continuing
However there was
nothing “continuing” about the employment action here.
They
were demoted and sent for retraining as of May 16 (or as they
argue June 21).
There is nothing continuing about it.
They
were replaced by the Mayor Emanuel volunteers whose races they
could
easily
have
determined
as
well
as
security specialists that were retained.
involve
plaintiff
piecemeal
in
discriminatory
believing
that
he
the
races
of
those
Their cases do not
acts
that
was
being
could
mislead
treated
a
fairly.
Accordingly, the Court grants the Motions for Summary Judgment
of the City of Chicago on the untimely Title VII claims of the
May 16 Plaintiffs.
C. Section 1981 and 1983 Race
Discrimination - Counts III and IV
Mayor Daley’s detail while he was mayor consisted of 23
officers:
15
Caucasian,
4
African-Americans
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and
4
Hispanics.
The combined membership of Mayor Daley’s and Mayor Emanuel’s
details after Hillard’s appointments consisted of 22 officers:
13 Caucasians, 5 African-Americans, and 4 Hispanics.
However,
all five of Mayor Daley’s detail were Caucasian, which means
that
Mayor
Emanuel’s
detail
Americans, and 4 Hispanics.
was
8
Caucasians,
5
African-
Plaintiffs make their major efforts
on the direct method of proof.
Their mosaic starts with Mayor
Emanuel’s
that
request
Apparently,
in
to
Hillard
order
to
insure
the
this
detail
result,
be
diverse.
Hillard
asked
Thompson to list the races of those he was recommending to be
appointed to Mayor Emanuel’s detail.
all
Caucasians,
which
was
further
the
were
main
admitted
recommended
reason
that
he
they
by
None of the Plaintiffs,
Thompson
weren’t
considered
for
appointment
selected.
race
in
Hillard
making
appointments but claims that this was not the sole factor.
the
He
re-appointed Thompson to be the detail’s captain and one of the
reasons for his re-appointment was his race - African-American.
Allegedly, according to Plaintiff Pigott, when asked why he was
passed over in favor of an African-American, Thompson told him
“John, the color of your skin is your sin.”
The Plaintiffs also claim that they have established the
claim by indirect proof.
Defendants respond with a laundry list
of shortcomings of each of the Plaintiffs.
- 15 -
However, each of the
Plaintiffs
had
served
as
Security
Specialists
for
lengthy
periods of time and each had received “exceeds expectations” on
performance reviews.
Thus, there are questions of fact on the
indirect method of proof also.
held
that
only
Thompson
and
Since the Court has previously
Hillard
were
involved
in
the
appointing process, summary judgment is granted in favor of all
Defendants
save
Thompson
and
Hillard.
Summary
judgment
is
denied as to Thompson and Hillard.
However, since Nolan, Olson and Roman were not subject to
an adverse action based on race, summary judgment in favor of
the Defendants is granted as to their claims.
III.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Summary
judgment
is
granted
in
favor
of
Defendants
Emanuel, Cuelo, Faulman, Jackson, McCarthy and Williams on all
Counts;
2.
Summary judgment is granted in favor of Hillard and
Thompson on Count II;
3.
Summary judgment is granted in favor of the City of
Chicago on the claims of Doyle, Houlihan, Nolan, Razo, Weingart,
Nolan, Olson Razo, Roman, and Soto on Count I;
4.
Summary
Judgment
is
denied
Rodriguez, and Soto on Count I;
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as
to
Padalino,
Pigott,
5.
Summary judgment is granted in favor of all Defendants
save Hillard and Thompson on Count IIIs and IV;
6.
Summary judgment is granted in favor of Hillard and
Thompson against Nolan, Olson and Roman on Counts III and IV;
7.
Padalino,
Summary
Pigott,
judgment
Razo,
is
denied
Rodriguez,
against
Soto
Doyle,
and
Houlihan,
Weingart
on
Counts III and IV; and
8.
Summary judgment is granted in favor of the City of
Chicago against all Plaintiffs on Count V.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: September 30, 2015
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