Maria Zerante v. Anthony Deluca ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1381
M ARIA Z ERANTE,
Plaintiff-Appellant,
v.
A NTHONY D ELUCA AND D ANIEL P ROFT,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 2421—Joan B. Gottschall, Judge.
A RGUED D ECEMBER 8, 2008—D ECIDED F EBRUARY 9, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
B AUER, Circuit Judge. Maria Zerante brought a civil
rights action under 42 U.S.C. § 1983 against Chicago
Heights Mayor Anthony DeLuca and his Chief of Staff,
Daniel Proft, alleging that she was fired in retaliation for
her political activities. The district court granted sum-
mary judgment for the defendants, and Zerante appealed.
For the reasons set forth in this opinion, we affirm.
2 No. 08-1381
I. BACKGROUND
Maria Zerante’s employment with the City of Chicago
Heights began in 1995 during then-Mayor Angelo
Ciambrone’s first term. In October of 1999, she was pro-
moted to the position of Purchasing Agent in the City’s
Purchasing Department, where she served until the end
of Ciambrone’s second and final term in 2003. When
Ciambrone opted not to seek re-election, a host of candi-
dates entered the field to vie for his post. Among the
challengers were Paulnita Rees (Ciambrone’s Manager
of Operations), David Zerante (no relation to plaintiff
Maria Zerante), and the eventual winner, DeLuca.
As is common at the municipal level, candidates
seeking public office in Chicago Heights run under non-
partisan organizational names such as RENAISSANCE,
FUEL, BELIEF, and CHANGE, with the top two vote-
getters squaring off in the general election. From the
primary run-off, David Zerante and DeLuca emerged
victorious. Each finalist sought the support of Rees, who
had lost in the primary; however, Rees informed David
Zerante and DeLuca that she intended to remain neutral.
At this time, Chicago Heights was facing major budget
shortfalls and a bleak financial forecast. Consequently, no
single campaign issue loomed larger than that of how to
solve the city’s fiscal woes. While David Zerante’s cam-
paign platform focused on refinancing the city’s outstand-
ing bonds, DeLuca vowed to cut waste and run the
local government more like a private business. DeLuca
won the election. The mayor-elect hired Dan Proft as his
Chief of Staff, who was charged with examining the
No. 08-1381 3
city’s books and identifying strategies to get its budget
back in the black. Through Proft, DeLuca concluded that
the forecast “looked grim.” DeLuca and Proft shared the
opinion that a central cause of the city’s problems was
its bloated workforce, which included many duplicative
jobs. Accordingly, the DeLuca administration set out to
close the budget gap in part by eliminating employee
positions. Believing, probably correctly, that unionized
employees would likely prove more difficult to fire,
DeLuca targeted non-union employees to accomplish
his goal. Between May 2003 and September 2004, the
DeLuca administration eliminated 17 non-union em-
ployees and opted not to replace an additional 17 em-
ployees who either retired or left voluntarily.
Proft’s information gathering process also revealed that
the Purchasing Department was underperforming. Ac-
cording to DeLuca, the department suffered from a lack
of centralization, which bred inefficiency and waste.
Concluding that it could “do better,” the DeLuca ad-
ministration decided to fire and replace Zerante. Proft
testified that Zerante was fired because, “we wanted to
send a signal to the people that had just elected us into
office that we were serious about those things that we
campaigned on. That we were going to bring new blood
to city government.” DeLuca hired Matt Fares to fill
Zerante’s vacancy. Fares, whose credentials included
private sector business experience, had served as
treasurer on the DeLuca campaign.
On April 22, 2005, Zerante brought a § 1983 suit against
DeLuca and Proft, claiming that she had been fired
4 No. 08-1381
because of her political activities and associations. Zerante
claimed that her firing was the result of her support for
the Ciambrone administration prior to the 2003 elections
and her later support for mayoral candidate Rees during
the 2003 primary campaign. The district court granted
the defendants’ motion for summary judgment, finding
that Zerante could not establish a prima facie case of
political retaliation, and further, even if she could, DeLuca
and Proft had offered a legitimate, non-political explana-
tion for the termination of her employment. This timely
appeal followed.
II. DISCUSSION
On appeal, Zerante contends that the district court erred
in granting summary judgement because there were
genuine issues of material fact concerning whether her
political affiliations caused her employment termination
and whether the defendants’ explanation for her firing
was genuine or merely pre-textual.
We review a district court’s grant of summary judg-
ment de novo. Darst v. Interstate Brands Corp., 512 F.3d
903, 907 (7th Cir. 2008) (citations omitted). Summary
judgment is appropriate when there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). We
view the record in the light most favorable to the non-
moving party and draw all reasonable inferences in
that party’s favor. Darst, 512 F.3d at 907.
The First Amendment protects a person from being
removed from public employment for purely political
No. 08-1381 5
reasons, with certain exceptions for policymaking posi-
tions and employees having a confidential relationship
with a superior. Pleva v. Norquist, 195 F.3d 905, 911 (7th
Cir. 1999). In order to establish a prima facie case for
this type of employment discrimination, a plaintiff must
demonstrate two things: first, that her conduct was con-
stitutionally protected, and second, that the protected
conduct was a substantial or motivating factor in the
employment decision. Hall v. Babb, 389 F.3d 758, 762
(7th Cir. 2004). A plaintiff’s claim will fail if she merely
shows that she was of a different political persuasion than
the decision makers or the successful applicant. Id. If a
plaintiff can make out a prima facie showing, the
burden then shifts to the defendant to demonstrate
that there was a legitimate, non-political reason for the
employment decision. Id.Here, the parties agree that Zerante’s position did not
fall under the policymaking exception and, moreover, that
her support for the Ciambrone administration, involve-
ment in Rees’s primary campaign, and decision to
remain neutral in the general election were all pro-
tected activities. Thus, Zerante has established the first
prong of a prima facie case.
However, to meet the requirements of the second prong
and survive summary judgment, Zerante needed to
present evidence sufficient to create a genuine issue of
material fact on the question of whether political motiva-
tion was a substantial factor in the decision to terminate
her employment. See Hall, 389 F.3d at 762. In analyzing
this issue, the threshold question is whether DeLuca
6 No. 08-1381
and Proft even knew about Zerante’s political activities.
See id. The district court determined that Zerante
presented insufficient evidence to clear this initial
hurdle, and we agree.
Zerante testified that she lacked personal knowledge
that DeLuca or Proft knew of her campaign activities
concerning Rees’s candidacy. Moreover, she put forth no
evidence, circumstantial or other, which would allow a
trier of fact to draw the inference that defendants
actually were aware of her political activities. Zerante’s
claim is made even more tenuous by her admission that
she is a registered Republican and actually voted for
DeLuca in the general election. Curiously, at oral argu-
ment, Zerante attempted to explain away her admission
by asserting that DeLuca and Proft were unaware that
DeLuca had earned her vote. This is precisely the point.
Zerante’s claim that she was retaliated against for her
political affiliations cannot proceed absent some evi-
dence that DeLuca or Proft were aware of those affiliations.
Seemingly aware of this problem, Zerante repositions
her argument to assert that it was her political neutrality
in the general election that caused her to be fired. Zerante
notes that she declined to volunteer on the DeLuca cam-
paign; Fares, conversely, served as the campaign’s trea-
surer. Therefore, Zerante argues, because she elected not
to participate in the campaign while her successor played
an integral role in it success, one can readily draw the
inference that the new administration chose to jettison
an employee who had not demonstrated political loyalty
in favor of one who had. We disagree.
No. 08-1381 7
It is undisputed that Zerante’s decision to remain
politically neutral in the general election is entitled to the
same protection as would her choice to support a
political opponent of DeLuca’s. However, the fact that
Zerante did not volunteer on the DeLuca campaign does
little, if anything, to distinguish her from the scores of
other city employees who also chose not to participate in
campaign activities. Thus, even assuming Deluca’s knowl-
edge of Zerante’s decision to remain on the sidelines
during the mayoral race, Zerante must prove that her
apolitical stance was a motivating factor behind her firing.
As support for her theory, Zerante points to Proft’s
deposition statement that the new administration was
committed to bringing in “new blood” in key positions.
However, DeLuca had campaigned on a platform of
running the city like a business. Fares, who brought with
him private sector experience, arguably advanced this
goal. Zerante, who oversaw a department saddled with
waste and inefficiency, arguably did not. Although
Zerante was not given a formal performance review
before she was fired, she was not owed one. A city em-
ployee may be fired for a good reason or for no reason
at all, as long as she was not fired because of her con-
stitutionally protected activities. Garrett v. Barnes, 961
F.2d 629, 633 (7th Cir. 1992). Fares’ hiring does not
advance Zerante’s claim that she was fired for her
political neutrality.
Zerante simply failed to adduce any evidence that her
political activities or her decision to abstain from political
involvement was a substantial or motivating factor in her
8 No. 08-1381
firing. Consequently, she cannot satisfy the second prong
of a prima facie case.
Accordingly, we need not consider the issue of whether
DeLuca and Proft had met their burden of demonstrating
a legitimate, non-political reason for their decision to
terminate Zerante’s employment.
III. CONCLUSION
For the reasons set forth above, we A FFIRM the
district court’s granting of summary judgment.
2-9-09