Doyle v. City of Chi.

139 F.Supp.3d 893

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, Defendants.

Case No. 12 C 6377

United States District Court, N.D. Illinois, Eastern Division.

Signed September 30, 2015

As Amended October 29, 2015

Edward M. Fox, Jonathan R. Ksiazek, Garrett W. Browne, Ed Fox & Associates, Chicago, IL, for Plaintiffs.

David Justin Seery, City of Chicago, Law Department Corporation Counsel, Deja C. Nave, City of Chicago (30 N LS), Vincent J. Connelly, Frank M Dickerson, III, Richard Edward Nowak, Mayer Brown LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Harry D. Leinenweber, Judge, United States District Court

I. BACKGROUND

The eleven Plaintiffs are current or former Chicago police officers who at one time were assigned to the Security Specialist position. As Security Specialists they provided protection to former Mayor Richard M. Daley, as well as to visiting dignitaries. Unlike other police officers below the rank of sergeant, Security Specialists receive base pay equivalent to sergeant's pay. The Defendants are Brian Thompson, Unit Commander of the Security Specialists ("Thompson"), Terry Hillard ("Hillard"), interim Superintendent of the Chicago Police Department ("CPD"), Rahm Emanuel, Mayor of Chicago ("Mayor Emanuel"), Michael Faulman, Administrator to the Mayor ("Faulman"), Garry McCarthy, Superintendent of Police ("McCarthy"), James Jackson, First Deputy CPD ("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. On February 22, 2011, Mayor Emanuel was elected Mayor. 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"). Weis decided to retire and his last day was March 1, 2011. To fill the vacancy during the period between Weis' 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 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. These included Raymond Hamilton, Hakki Curkan, Mark Rebecchi, Mark Mejia, Paul Currincione, and Francisco Gonzalez (Collectively, the "Emanuel Volunteers"). 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. It consisted of [Redacted] officers in addition to Thompson and included [Redacted] members of Daley's detail recommended by Thompson, [Redacted] officers that had provided protection to Emanuel during the transition period and [Redacted] officers recommended by other CPD command staff, which included Defendants Cuelo, Jackson and Williams. The total was [Redacted] 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 instructed them to report to the CPD Training Academy on the following Monday, May 16 for retraining and reassignment. These reassignments were memorialized in CPD Personnel Orders issued by new Superintendent McCarthy on June 21, 2011. The four Security Specialists including three Plaintiffs 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") 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 grievances pursuant to the Collective Bargaining Agreement. 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 the Illinois Department of Human Rights and Equal Opportunity on August 16, 2012 and filed this Complaint on August 13, 2012. The Complaint, now in its fifth 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 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 [Redacted] officer security detail was composed of [Redacted] white males, [Redacted] white female, [Redacted] black males, [Redacted] Hispanic males and [Redacted] Hispanic female. The [Redacted] officers assigned to Mayor Emanuel's detail consisted of [Redacted] white males, [Redacted] black males, [Redacted] Hispanic males, and [Redacted] Hispanic female. The [Redacted] assigned to Mayor Daley consisted of [Redacted] white males.

II. DISCUSSION

A. 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 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. The Court has found no cases, and the parties have suggested 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. Williams provided a list of names at Hillard's request. McCarthy was not even employed at the time the decisions were made and his involvement only consisted of making the decisions final through issuance of appropriate personnel orders.

There is no basis to conclude that any of these administrative acts were taken for illegal reasons. The Plaintiffs did not make formal complaints until well after the decisions were implemented. Plaintiffs cite Hild e brandt 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. However, this case actually supports the Defendants' positions. 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. Section 1983 liability was sought against the supervisor of the decision maker and also against his supervisor. The evidence disclosed that the 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...