Amundsen, Michael v. Chicago Park Dist ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2720
MICHAEL AMUNDSEN,
Plaintiff-Appellant,
v.
THE CHICAGO PARK DISTRICT, ROB O’CONNOR, KATHY
DUNLAP, MARILYN MORALES, and PETER PODGORSKI,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2831--Harry D. Leinenweber, Judge.
Argued April 19, 2000--Decided June 30, 2000
Before POSNER, Chief Judge, COFFEY and EASTERBROOK,
Circuit Judges.
COFFEY, Circuit Judge. On October 29, 1998,
Plaintiff-Appellant Michael Amundsen ("Amundsen")
filed a three count amended complaint under 18
U.S.C. sec. 1983. In the complaint, Amundsen
alleged in Count one that the Chicago Park
District’s ("Park District") administrative
hearing violated due process, in Count two that
the Park District and the individually named
defendants (Rob O’Connor, Kathy Dunlap, Marilyn
Morales and Peter Podgorski) conspired to violate
his constitutional rights, and in Count three
that the Park District terminated his employment
in violation of the collective bargaining
agreement./1 On June 10, 1999, the court granted
summary judgment in favor of the Park District
and the named defendants on each of the counts
and concluded that the administrative hearing was
conducted in compliance with due process.
Furthermore, the judge found that the plaintiff
failed to allege facts constituting a conspiracy
to deny him his constitutional rights and failed
to timely seek judicial review of his discharge
under Illinois state law.
On appeal, Amundsen argues that the district
court erred in granting summary judgment to the
defendants because his administrative hearing
violated due process. He also claims that he pled
facts sufficient to support his conspiracy claim
and that federal law, rather than Illinois law,
governs his claim that his discharge was in
violation of the collective bargaining agreement.
We AFFIRM.
I. BACKGROUND
Amundsen was employed by the Chicago Park
District as a physical fitness instructor and
assigned to teach athletic skills to park
patrons. As a member of the Public Service
Employees Union Local 46, AFL-CIO, his employment
was governed by a collective bargaining
agreement. On or about March 24, 1995, the Park
District’s Area Manager, Rob O’Connor
("O’Connor"), informed Amundsen that a couple had
accused him of striking a park patron (their
child) during a class. Five days later, on March
29, 1995, Amundsen was summoned to meet with
Marilyn Morales ("Morales"), the Park District
Human Resources Manager, and Peter Podgorski
("Podgorski"), the Park District Supervisor of
Recreation. At the meeting, Amundsen was
suspended as a result of the physical abuse
charge./2
After his suspension, Amundsen phoned the
president of his local union and was advised that
because he did not receive written notice of his
suspension, "if [he] did not report for work he
could be terminated from his job based upon job
abandonment. . . . [and] he could return to work
based upon a provision of the collective
bargaining agreement."/3 When the plaintiff
reported to work on April 4, 1995, he was asked
to leave by Podgorski, Morales and Kathy Dunlap
("Dunlap"), the Park District’s Region Manager,
but he refused. The police were then called and
after he refused to obey the command of the
police to leave the premises, he was arrested for
criminal trespass./4 Based on the physical abuse
charge and this incident, the Park District
terminated Amundsen on May 1, 1995. Shortly
thereafter, Amundsen requested a formal discharge
hearing with the Park District’s Personnel Board
("Personnel Board"), which in turn appointed a
hearing officer. The hearing officer conducted
hearings over three days in 1997 and upheld
Amundsen’s termination on the ground that "[h]is
defiance and refusal to stay away from the Park
District while the Park District investigated the
charges of physical abuse was insubordination of
the highest degree," but found that the charges
relating to him physically striking a child did
not warrant termination. Because Amundsen failed
to file exceptions to the hearing officer’s
rulings within the proscribed time limit, the
Personnel Board adopted the hearing officer’s
findings and his termination became final on
December 29, 1997. For reasons unexplained,
Amundsen failed to file an appeal in state court
seeking judicial review of the Park District
Personnel Board’s final decision within the 35-
day statute of limitations, as proscribed under
Illinois state law, and neither Amundsen nor his
union sought arbitration as permitted under the
collective bargaining agreement.
Thereafter, the plaintiff filed this sec. 1983
suit in federal court, claiming that his
discharge hearing violated due process, the
defendants conspired to violate his
constitutional rights and his employment was
terminated in violation of the collective
bargaining agreement. On June 10, 1999, the court
granted summary judgment in favor of all the
defendants, finding that: (1) the Park District’s
administrative hearing was in compliance with due
process; (2) Amundsen failed to allege facts
constituting a conspiracy to deny him his
constitutional rights; and (3) he failed to
timely seek judicial review of his termination
under Illinois state law. The plaintiff appeals.
II. ISSUES
On appeal, Amundsen alleges that the court
erred in granting summary judgment to the
defendants because: (1) the administrative
discharge hearing did not comply with due
process; (2) the facts pled in his amended
complaint were sufficient to sustain his claim
that the defendants conspired to deprive him of
his constitutional rights; and (3) federal law
governs his claim that his termination was a
violation of the collective bargaining agreement.
III. DISCUSSION
A. Count one: The Park District’s Administrative
Hearing Process Violated Due Process
In support of his claim that the Park
District’s administrative hearing process
violated due process, Amundsen alleges that: (1)
the hearing officer was hired and paid by the
Park District and thus was biased in favor of his
employer; (2) he did not have the ability to
subpoena witnesses; and (3) the hearing was not
conducted in accordance with formal rules of
evidence. At the outset, we note that Amundsen
relies on both Illinois and federal law in part
to support his sec. 1983 suit. However, both
Illinois and federal courts have rejected
arguments similar to those raised here by
Amundsen./5
1. Bias of the Hearing Officer
Amundsen initially accuses the hearing officer
of being biased in favor of the Park District as
"it is apparent that a hearing officer who
consistently rules against the Park District will
not continue to enjoy his place on the Park
District payroll." Thus, he claims, "[a]s a paid
agent of the [Park District] deciding a dispute
over the propriety of the actions of the
Defendant, the hearing officer can hardly be
relied upon to be impartial in such a situation."
[But a contention of bias] must overcome a
presumption of honesty and integrity in those
serving as adjudicators; and it must convince
that, under a realistic appraisal of
psychological tendencies and human weakness, . .
. [there is] such a risk of actual bias or
prejudgment that the practice must be forbidden
if the guarantee of due process is to be
adequately implemented.
Withrow v. Larkin, 421 U.S. 35, 47 (1975); see
Schweiker v. McClure, 456 U.S. 188, 196-97 (1982)
(citation omitted); Scott v. Department of
Commerce, 416 N.E.2d 1082, 1089 (Ill. 1981)
("Without a showing to the contrary, State
administrators ’are assumed to be men of
conscience and intellectual discipline, capable
of judging a particular controversy fairly on the
basis of its own circumstances.’") (citing United
States v. Morgan, 313 U.S. 409, 421 (1941)).
"This presumption can be rebutted by a showing
of conflict of interest or some other specific
reason for disqualification." Schweiker, 456 U.S.
at 195-96; see Gibson v. Berryhill, 411 U.S. 564,
579 (1973). To establish bias that "is too high
to be constitutionally tolerable," the asserting
party would need to prove that the adjudicator
had "a pecuniary interest in the outcome . . .
[or had] been the target of personal abuse or
criticism from the party before him." Withrow,
421 U.S. at 47. "But the burden of establishing
a disqualifying interest rests on the party
making the assertion." Schweiker, 456 U.S. at
196.
The plaintiff has failed to present any
evidence of actual bias on the part of the
hearing officer. Amundsen’s bald accusation is
based solely on the fact that the hearing officer
was employed by the Park District, which of
itself is insufficient to establish actual bias.
Cf. Richardson v. Perales, 402 U.S. 389, 410
(1971); Cannon v. Apfel, No. 99-1578, 2000 WL
684688, at *6 (7th Cir. May 24, 2000); Van Harken
v. Chicago, 103 F.3d 1346, 1352-53 (7th Cir.
1997) (stating that even when "an administrative
or adjudicative body derives a financial benefit
from fines or penalties that it imposes is not in
general a violation of due process"). Thus, we
hold that Amundsen has failed to satisfy his
burden of overcoming the well-established
"presumption of honesty and integrity in those
serving as adjudicators." See Withrow, 421 U.S.
at 47; see also Kloman v. Illinois Municipal
Retirement Fund, 674 N.E.2d 38, 42 (Ill. App. Ct.
1996).
2. Inability to Subpoena Witnesses
Amundsen’s next claim is that he did not have
the ability to subpoena witnesses, which he
contends, also violated due process. Contrary to
his assertion, the record reflects that an
employee challenging his discharge may request
that the Personnel Board or one of its hearing
officers issue a subpoena for witnesses as
provided under Illinois law. See 70 Ill. Comp.
Stat. 1505/16a(c)(2). In spite of this fact,
Amundsen never requested a subpoena for a
witness. Nonetheless, this court has held that in
the administrative hearing context, the ability
to subpoena witnesses is not an absolute right.
See Butera v. Apfel, 173 F.3d 1049, 1058-59 (7th
Cir. 1999); see also DeLong v. Hampton, 422 F.2d
21, 24-25 (3d Cir. 1970); Henley v. United
States, 379 F. Supp. 1044, 1048 (M.D. Pa. 1974).
In fact, the Supreme Court came to the same
conclusion in the Social Security context because
of the "additional and pragmatic factor" of the
sheer "cost of providing live . . . testimony" at
administrative hearings. Perales, 402 U.S. at
406. Indeed, "in administrative matters, due
process is satisfied when the party concerned is
provided an opportunity to be heard in an orderly
proceeding which is adapted to the nature and
circumstances of the dispute." Obasi v.
Department of Prof. Reg., 639 N.E.2d 1318, 1325
(Ill. App. Ct. 1994).
It is worthy to note that the hearing officer
did in fact read him a statement of his hearing
rights at the outset of the hearing, including
the right to call witnesses, the right to present
evidence on his behalf and the right to cross-
examine witnesses testifying against him.
Amundsen was represented by counsel at the
hearing, testified himself and called three
witnesses to testify on his behalf. The plaintiff
also submitted evidence into the record,
including numerous letters of support from other
parents. Based on the record, we are convinced
that the plaintiff had an adequate opportunity to
be heard, see Obasi, 639 N.E.2d at 1325, and
thus, we reject Amundsen’s claim that the alleged
denial of his right to subpoena witnesses
violated due process.
3. Admission of Hearsay
Lastly, Amundsen contends that the hearing was
not conducted in accordance with formal rules of
evidence and that hearsay evidence was improperly
considered. Contrary to his contention that the
Illinois Administrative Procedure Act ("APA")
mandates that the rules of evidence and privilege
be followed, we hasten to point out that the APA
does not apply to Park District administrative
hearings. Indeed, the Illinois Supreme Court has
held that "[c]learly the [Park District
Personnel] Board is an administrative unit
created pursuant to statute, specifically, the
Chicago Park District Act (Park Act) . . . . ,
[and] the APA does not apply to it because it is
a unit of local government and is therefore
specifically exempted from its provisions."
Schmeier v. Chicago Park District, 703 N.E.2d
396, 406 (Ill. App. Ct. 1998) (emphasis added);
see also 70 Ill. Comp. Stat. 1505/16a.
Because Amundsen has failed to present nor have
we been able to discover any law that mandates
that Park District hearings are bound by formal
rules of evidence, we reject his claim that his
hearing did not comport with due process. Thus,
the district court’s grant of summary judgment to
the defendants on Count one of the amended
complaint was proper.
B. Count two: The Defendants Conspired to Deprive
Amundsen of his Constitutional Rights
In relation to the plaintiff’s claim that the
defendants conspired to deprive him of his
constitutional rights, he alleged in his amended
complaint that: (1) O’Connor orally reprimanded
him; (2) Morales suspended him at a meeting at
which Podgorski was also present; (3) Podgorski,
Morales and Dunlap caused him to be arrested for
criminal trespass to land; and (4) Podgorski and
O’Connor gave perjured testimony at his criminal
trial.
In Kunik v. Racine County, Wisconsin, 946 F.2d
1574, 1580 (7th Cir. 1991), we held that in order
to sustain a claim that the defendants conspired
to deny the plaintiff his constitutional rights,
"[t]here must be allegations that the defendants
directed themselves toward an unconstitutional
action by virtue of a mutual understanding. Even
were such allegations to be made, they must
further be supported by some factual allegations
suggesting a ’meeting of the minds.’" Thus,
Amundsen must satisfy the following: (1) allege
the existence of an agreement; (2) if the
agreement is not overt, "the alleged acts must be
sufficient to raise the inference of mutual
understanding" (i.e., the acts performed by the
members of a conspiracy "are unlikely to have
been undertaken without an agreement"); and (3)
"a whiff of the alleged conspirators’ assent . .
. must be apparent in the complaint." Id. at
1580-81. Indeed, a conspiracy claim cannot
survive summary judgment if the allegations "are
vague, conclusionary and include no overt acts
reasonably related to the promotion of the
alleged conspiracy." Id. at 1580; see Spiegel v.
Cortese, 196 F.3d 717, 726-27 (7th Cir. 2000).
The district court found that "the only
[denial] Amundsen specifically identifies in his
complaint" was the denial of "his right to due
process, as protected by the Fourth, Fifth and
Fourteenth Amendments." The court also found that
the plaintiff "failed to allege any action taken
by any of the individual defendants that
constituted a denial of his right to due
process," "made no factual allegations supporting
a reasonable inference that the individual
defendants agreed to any sort of conspiracy" and
"fail[ed] to make any factual allegations
supporting the existence of a conspiracy." We
agree and similarly hold that Amundsen has failed
to make any allegations that constitute a due
process violation, much less any constitutional
violation. It is clear that the allegations set
out in his complaint and reiterated in his briefs
and at oral argument fail to set forth any
cognizable claim that a conspiracy existed
because the allegations "are vague, conclusionary
and include no overt acts reasonably related to
the promotion of the alleged conspiracy." Kunik,
946 F.2d at 1580. Because the plaintiff’s
allegations are nothing more than bald assertions
without any evidentiary support, we hold that
they are insufficient to establish that the
defendants conspired to deprive him of his
constitutional rights. The district court
correctly granted summary judgment to the
defendants on Count two of the amended complaint.
C. Count three: The Plaintiff’s Termination
Violated the Collective Bargaining Agreement
Lastly, Amundsen contends that the court erred
when it dismissed his claim that he was
terminated in violation of the collective
bargaining agreement. He asserts that his claim
is governed by federal law and therefore was not
required to timely seek judicial review.
We disagree because Illinois law governs the
plaintiff’s claim. Under 29 U.S.C. sec. 152, the
federal Labor Management Relations Act ("LMRA")
does not cover Illinois employees working for a
local public entity created by the state. See 29
U.S.C. sec. 152(2) (excluding "any State or
political subdivision thereof" from its
definition of "employer")./6 Because the Park
District is a political subdivision of the state
of Illinois, state law applies and as such,
"[a]ll final administrative decisions by the
personnel board discharging . . . an employee
with career service status are subject to
judicial review under the Administrative Review
Law." 70 Ill. Comp. Stat. 1505/16a(c)(4)(J) (The
Park District Act). Thus, when the Personnel
Board’s decision to terminate Amundsen became
final on December 29, 1997, Amundsen had 35 days
to seek judicial review under Illinois state law.
735 Ill. Comp. Stat. 5/3-103 ("Every action to
review a final administrative decision shall be
commenced by the filing of a complaint and the
issuance of summons within 35 days from the date
that a copy of the decision sought to be reviewed
was served upon the party affected by the
decision . . . .")./7
The record reveals and Amundsen conceded that
he failed to file an appeal within 35 days of the
Personnel Board’s final decision to terminate
him./8 Thus, because he failed to meet the
statute of limitations for seeking judicial
review under Illinois law, the court correctly
granted summary judgment to the defendants on
Count three. See Lockett v. Chicago Police Board,
549 N.E.2d 1266, 1268 (Ill. 1990) ("The
requirement that a complaint be filed within the
35-day limit is jurisdictional; if a complaint is
not timely filed, no jurisdiction is conferred on
the circuit court and judicial review of the
administrative decision is barred.")./9
Because the plaintiff failed to establish actual
bias on the part of the hearing officer, failed
to demonstrate that he was unconstitutionally
denied the right to subpoena witnesses, and
ignored the fact that the hearing was not
required to comport with formal rules of
evidence, we agree with the district court’s
grant of summary judgment in favor of the
defendants on Count one. We also conclude that
the court properly granted summary judgment to
the defendants on Counts two and three because
Amundsen failed to sufficiently allege facts in
support of his conspiracy claim and failed to
file a timely appeal under Illinois law,
respectively. The district court’s decision is
AFFIRMED.
/1 The plaintiff’s original complaint was filed on
May 8, 1998, and after the judge granted summary
judgment in favor of the defendants on virtually
all counts, the court granted Amundsen leave to
file an amended complaint.
/2 Amundsen contends that he merely "flicked [the
child] on the forehead" to get his attention.
Nonetheless, the parents of the allegedly
stricken child swore out a criminal complaint for
battery against Amundsen. He was charged but was
later acquitted.
/3 We note that the Park District hearing officer
found that
[t]he advice [Amundsen] received from his union
president . . . was only partially correct. While
it is true that usual procedures require written
notice of suspension, . . . such written notice
is not mandated. . . .
There is little evidence in
support of Mr. Amundsen’s contention that
this refusal to obey his superiors by leaving and
not returning to Park District premises was based
on a good-faith misunderstanding of the
provisions of the Code of Conduct and on advice
of his union president. Rather, it is reasonable
to conclude that he refused to leave because he
was obstinate, especially given his caustic
responses to his superiors when they ordered him
on numerous occasions to leave.
/4 Amundsen was later acquitted of the charge.
/5 Amundsen’s suit does not belong in federal court
in spite of the fact that his claims are
meritless because his allegation that he was
discharged in violation of the collective
bargaining agreement is governed by Illinois law.
/6 Amundsen also mistakenly contends that the
district court previously concluded that his
claim falls under the Federal Labor Management
Relations Act and thus, this court on appeal is
bound by the court’s decision. Upon review of the
record, we have been unable to discover any
language in the court’s decision to support his
assertion.
/7 We also note that Section 12.3 of Amundsen’s
collective bargaining agreement provides that
Illinois law governs:
Suspensions of any length and discharges may be
appealed to the Personnel Board of the District
in accordance with the applicable provisions of
the Illinois Compiled Statutes (1992) and the
Illinois Revised Statutes (1991) and the
procedures of the Personnel Board and existing
procedures and practices in effect on the
effective date of this Agreement or as modified
from time to time in accordance with Section 16.7
herein.
/8 The plaintiff does not dispute that he failed to
file an appeal of his discharge in the Illinois
state court system and furthermore failed to file
his federal suit until May 8, 1998, more than
three months after the expiration of the 35-day
statute of limitations.
/9 Because Illinois state law governs the
plaintiff’s claim that he was terminated in
violation of his collective bargaining agreement,
the district court had only pendent jurisdiction
over the claim. See 28 U.S.C. sec. 1367. Although
"[t]he general rule is that when as here the
federal claim drops out before trial (here way
before trial), the federal district court should
relinquish jurisdiction over the supplemental
claim," Van Harken, 103 F.3d at 1354, the
district judge chose not to do so. We see no
reason to disturb the judge’s ruling because his
interpretation of state law was correct and he
correctly resolved the plaintiff’s suit rather
than burden the state courts with the case. See
id.