Luster-Malone v. Cook County

Filing 80

ORDER Adopting Report and Recommendations. For the foregoing reasons, the Court adopts Judge Schenkier's recommendation 65 and grants Cook County's motion to dismiss Luster-Malone's complaint 35 . Signed by the Honorable Thomas M. Durkin on 10/23/2018:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENISE LUSTER-MALONE,
Plaintiff,

No. 16 C 2903

v.

Judge Thomas M. Durkin

COOK COUNTY,
Defendant.
ORDER
Plaintiff Denise Luster-Malone filed a pro se lawsuit against Cook County
alleging that an arbitrator erroneously dismissed her complaint that Cook County
politically discriminated against her in violation of the Supplemental Relief Order
(“SRO”) for Cook County entered in Shakman v. Democratic Organization of Cook
County, 481 F. Supp. 1315, 1358 (N.D. Ill. 1979). Currently before the Court are
Luster-Malone’s

objections

to

Magistrate

Judge

Schenkier’s

report

and

recommendation that Cook County’s motion to dismiss Luster-Malone’s complaint
be granted. For the reasons stated below, the Court overrules Luster-Malone’s
objections [69], adopts Judge Schenkier’s recommendation [65], and grants Cook
County’s motion to dismiss Luster-Malone’s complaint [35].
Background
The Court agrees with and adopts Judge Schenkier’s statement of the facts
(R. 65 at 2-7), and briefly recounts them here. Luster-Malone was discharged from
her job as a stenographer at John H. Stroger, Jr. Hospital for gross insubordination

and falsifying time sheets. Id. at 2. She filed a grievance with her union in October
2009, which culminated in an arbitration hearing and decision in early 2011. Id.
The arbitrator found that Stroger had just cause to terminate Luster-Malone for
two offenses: (1) improperly requesting overtime pay on August 8, 2009; and (2)
gross insubordination on September 21, 2009. R. 1-32. The arbitrator found no
credible evidence that Luster-Malone performed work on August 8, 2009, and found
credible evidence that Luster-Malone failed to comply with her supervisor’s
direction to perform a reasonable work assignment on September 21, 2009. Id. The
arbitrator found “no support” for Luster-Malone’s defense that she was being “set
up,” and he found her to be “far from a credible witness.” Id. at 14.
Luster-Malone also filed charges with the Illinois Department of Human
Resources (“IDHR) and the EEOC. The IDHR dismissed those charges in July 2011,
finding a lack of substantial evidence supporting Luster-Malone’s allegations that
she was dismissed due to a disability (morbid obesity) or in retaliation for her
charges of discrimination. R. 1-19.
Finally, Luster-Malone submitted dozens of complaints to the Office of the
Cook County Complaint Administrator from 2009 through 2012 alleging that other
Stroger employees committed worse offenses and kept their jobs because of their
political connections. Pursuant to the Shakman SRO, the Office of the Independent
Inspector General (“OIIG”) investigated Luster-Malone’s claims and issued a report
denying them in May 2014. See R. 1-1 at 2. Luster-Malone challenged that
determination in a complaint filed with the State’s Attorney’s Office. An arbitrator

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granted a motion to dismiss that complaint in February 2016 after briefing by the
parties. R. 1-1. The arbitrator gave two bases for his rulings: (1) that LusterMalone’s claim was foreclosed based on the just cause determinations in the 2011
arbitration, which constituted non-political reasons for Luster-Malone’s termination
and precluded liability on the part of Cook County under the Shakman SRO; and (2)
that Luster-Malone’s request for arbitration was untimely because it was filed more
than 45 days after the OIIG report. Id.
Luster-Malone filed a pro se complaint in this Court one month after the
arbitrator’s 2016 ruling asserting a claim of political discrimination. R. 1. The Court
granted Luster-Malone’s motion for appointment of counsel, but after assigned
counsel withdrew due to “substantial and irreconcilable disagreement” with LusterMalone, the Court did not appoint another attorney. R. 14; R. 31; R. 34.
The case was subsequently reassigned to Judge Schenkier pursuant to the
SRO for all proceedings including final judgment. R. 40. Judge Schenkier issued an
order dismissing the case on November 14, 2017. R. 49. Luster-Malone appealed.
The Seventh Circuit dismissed Luster-Malone’s appeal, explaining that
absent consent of all parties, a magistrate judge’s ruling may not be directly
appealed to the court of appeals, and Cook County had not consented. R. 58. This
Court then referred the case to Judge Schenkier for a report and recommendation.
R. 63. Judge Schenkier issued a report and recommendation that Cook County’s
motion to dismiss be granted on May 22, 2018. R. 65. After the Court granted an

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extension of time, Luster-Malone submitted objections on July 5, 2018 (R. 69), to
which Cook County responded (R. 74), and Luster-Malone submitted a reply (R. 79).
Standard
Under Federal Rule of Civil Procedure 72(b)(2), after a magistrate judge
issues a report and recommendation, “[w]ithin 14 days after being served with a
copy of the recommended disposition, a party may serve and file specific written
objections to the proposed findings and recommendations.” “Rule 72(b) of the
Federal Rules of Civil Procedure requires a party that disagrees with a magistrate
judge’s report and recommendation on a dispositive motion to file ‘written, specific
objections’ to the report.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999). Typically, a district court reviews a magistrate’s report and recommendation
for clear error. Fed. R. Civ. P. 72(a). But a district court reviews de novo “any part of
the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ.
P. 72(b)(3). “Being persuaded by the magistrate judge’s reasoning, even after
reviewing

the

case

independently,

is

perfectly

consistent

with

de

novo

review.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). That said,
“[t]he magistrate judge’s recommendation on a dispositive matter is not a final
order, and the district judge makes the ultimate decision to adopt, reject, or modify
it.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009).
Discussion
Luster-Malone does not raise a proper and specific objection to Judge
Schenkier’s report and recommendation. Rather, she submits and describes

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numerous documents in an attempt to relitigate before this Court the merits of her
time sheet and insubordination issues at Stroger. Because Luster-Malone has not
submitted proper and specific objections, the Court reviews Judge Schenkier’s
report and recommendation for clear error. Fed. R. Civ. P. 72(a). The Court notes,
however, that it would reach the same conclusions on de novo review.
Judge Schenkier began by properly finding that any free-standing political
discrimination claim would be untimely because Luster Malone had a choice under
the SRO between filing a lawsuit or filing an OIIG complaint followed by
arbitration, and she chose the latter route. R. 65 at 8. But Judge Schenkier read
Luster-Malone’s pro se complaint liberally as also seeking to vacate the arbitrator’s
2016 decision dismissing her SRO complaint—a challenge that is timely. As Judge
Schenkier explained, this Court’s review of the 2016 decision based on the SRO is
“extremely limited,” and Luster-Malone faces a substantial burden to prove that it
should be vacated. E.g., Shakman v. Democratic Organization of Cook County, 2017
WL 962762, at *3 (N.D. Ill. Mar. 9, 2017). “Because the parties to an arbitration did
not bargain for a judicial determination, a reviewing court cannot set aside an
arbitration award because of errors in judgment or mistakes of law or fact, unless
they are gross errors apparent on the face of the award.” Id.
Judge Schenkier recommended that Cook County’s motion to dismiss be
granted, finding no gross error in either of the alternative bases the arbitrator gave
for dismissing Luster-Malone’s complaint in 2016. This Court agrees with Judge
Schenkier’s reasoning.

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First, the Court agrees with Judge Schenkier and the 2016 arbitrator that
Cook County’s liability is precluded based on the findings in the 2011 arbitration.
The Seventh Circuit in Brown v. Cook County, 661 F.3d 333 (7th Cir. 2011), held
that “[i]f all that’s charged is discrimination on political grounds, any nonpolitical
ground that the defendant can prove would have caused the discrimination
regardless of the presence of political hostility will preclude liability.” Id. at 337
(emphasis in original). Judge Schenkier and the 2016 arbitrator correctly reasoned
that the findings of two non-political, just causes for Luster-Malone’s termination in
2011 precluded Cook County’s liability for political discrimination. Luster-Malone
has not shown any gross error in that determination.
Second, this Court agrees with Judge Schenkier that Luster-Malone has
failed to show gross error in the 2016 arbitrator’s decision that Luster-Malone’s
request for arbitration was untimely. The arbitrator found that Luster-Malone had
not disputed when briefing the motion to dismiss that she was a day late in making
her filing with the state’s attorney. R. 1-1 at 5. In this Court, Luster-Malone has not
provided a clear explanation for missing the deadline or shown why the arbitrator
committed gross error in enforcing it.
In her objection and reply, Luster-Malone contends that her case has never
been fully adjudicated. She seeks to relitigate the merits of her claims arbitrated in
2011 before this Court based on documentation regarding her timekeeping and
insubordination in 2009. Contrary to her claim that her case has never been fully
adjudicated, however, Luster-Malone’s complaints regarding her termination have

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been addressed in numerous proceedings, including the 2011 arbitration hearing
and subsequent opinion (which weighed Luster-Malone’s credibility and made welldocumented findings of just cause for terminating Luster-Malone), before the IDHR
(which resulted in dismissal based on a finding of lack of substantial evidence
supporting Luster-Malone’s claims), in the 2016 arbitration proceedings (which
resulted in dismissal based on the findings in the 2011 arbitration and for
untimeliness). This Court’s jurisdiction at this stage of proceedings is carefully
circumscribed. The Court may only review for error Judge Schenkier’s report and
recommendation, which reviewed the 2016 arbitration dismissal addressing LusterMalone’s claims under the SRO. And the Court finds that Luster-Malone has
presented no valid objection to Judge Schenkier’s well-reasoned report and
recommendation.
Conclusion
For

the

foregoing

reasons,

the

Court

adopts

Judge

Schenkier’s

recommendation [65] and grants Cook County’s motion to dismiss Luster-Malone’s
complaint [35].
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: October 23, 2018

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