Mary Casna v. City Loves Park IL ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1044
M ARY C ASNA,
Plaintiff-Appellant,
v.
C ITY OF L OVES P ARK , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 C 50256—Philip G. Reinhard, Judge.
A RGUED O CTOBER , 30 2007—D ECIDED JULY 24, 2009
Before M ANION, R OVNER and S YKES, Circuit Judges.
R OVNER, Circuit Judge. Mary Casna sued the City of
Loves Park, Illinois, its mayor, and its chief of police
after she lost her job with the police department. Casna
wears hearing aids and argues that the defendants (collec-
tively, Loves Park) violated the Americans with Disability
Act by firing her when she complained about mistreat-
ment. See 42 U.S.C. § 12203(a). Casna also claims that
Loves Park deprived her of her job without due process,
2 No. 07-1044
in violation of 42 U.S.C. § 1983. The district court granted
summary judgment in favor of Loves Park. We reverse.
Background
Casna began working for the City of Loves Park in 1996,
as a deputy to the City Clerk, an elected official. In 1999
Casna asked to transfer to an administrative-assistant
position in which she would report to both the Director
of Community Development, Dan Jacobson, and the
Director of Public Works, Bob Martin. In a resolution
the city council authorized the transfer and specified that
Casna’s new job was, like her previous position, exempt
from the civil service protections set forth in the Illinois
Municipal Code, 65 ILCS 5/10-1-18(a). Casna served in
her second position for four years, but her relationship
with Martin was rocky. Martin told Casna repeatedly
that he was unhappy with her performance and related
that fact to Mayor Darryl Lindberg. Casna complained
about Martin to an alderman, which perturbed the
Mayor, who believed that Casna had violated the
City’s chain of command. In March 2003 the Mayor and
the Chief of Police, Patrick Carrigan, agreed to transfer
Casna to a temporary position as a police clerk, so that the
City could evaluate her performance without the distrac-
tions of her conflict with Martin. The temporary transfer
was to last for at least six months.
Casna suffers a hearing impairment resulting from
chemotherapy and wears aids in both ears. This was not,
apparently, a source of the friction with Martin, but it
became an issue at the police department, where Kay
No. 07-1044 3
Elliot, the Chief’s secretary, was Casna’s immediate
supervisor. Elliot kept a log in which she recorded Casna’s
performance, and her comments were rarely favorable.
Elliot noted that Casna often came in late because of
obligations to her part-time job, and that she complained
that the duties now assigned her as a police clerk were
beneath her. Elliot also recorded that Casna took a long
time to complete routine tasks and gossiped about co-
workers.
The tension between Casna and Elliot came to a head
in June 2003, two months into Casna’s temporary ap-
pointment with the police department. On June 2, at
around 4:45 p.m., Elliot put a stack of police reports on
Casna’s desk. Although Elliot initially maintained that
she told Casna that the papers ought to be filed before
the close of business at 5 p.m., she acknowledged at her
deposition that she never said anything of the sort and
further admitted that office protocol did not demand that
reports be filed before 5 p.m. Nonetheless, Elliot returned
minutes later and expressed her disappointment that
Casna had not yet completed the task.
Casna sought out Elliot the following morning to apolo-
gize for not filing the reports immediately, explaining
that she had not heard Elliot make that request. Elliot
knew that Casna had a hearing impairment, but she also
had seen Casna listening to music at her desk once and
was frustrated by what she perceived as inconsistencies
in Casna’s abilities; consequently, she asked Casna to
explain specifically what she could and could not hear.
When Casna was finished, Elliot snapped, “How can you
4 No. 07-1044
work if you cannot hear?” Casna, who testified that she
felt threatened by this comment, countered, “Aren’t you
being discriminatory?” Taken aback, Elliot refused to
speak further with Casna and hurried off to consult with
Chief Carrigan, who instructed her to prepare a written
evaluation of Casna. Elliot testified that this was the
first time that she had ever conducted a written evalua-
tion of a subordinate during the subordinate’s first year
on the job, and that she had never evaluated a proba-
tionary employee before the full six months were up.
The following day Chief Carrigan wrote to Mayor
Lindberg, recommending that the City terminate Casna’s
employment because the evaluation that Elliot conducted
the previous day, after her tussle with Casna, suggested
that Casna was incapable of meeting the police depart-
ment’s standards. The Mayor fired Casna three business
days later.
After exhausting her administrative remedies, Casna
sued the City, the Mayor, and the Police Chief, claiming
that she had been fired in retaliation for her complaints
of discrimination, see 42 U.S.C. § 12203(a), and that
Loves Park had violated the Due Process Clause by dis-
charging her without the opportunity to be heard guaran-
teed by state law, see 65 ILCS 5/10-1-18(a). Loves Park
moved for summary judgment, arguing among other
things that each of Casna’s jobs were exempt from civil
service protections and thus did not constitute a property
interest. Loves Park did not address Casna’s retaliation
claim until its reply memorandum, in which it countered
Casna’s assertion, in her memorandum in opposition
No. 07-1044 5
to summary judgment, that her retaliation claim
merited trial.
The district court granted summary judgment on the
due process claim. It reasoned that Loves Park had not
followed civil service requirements in appointing Casna
to her second and third jobs; thus, she should not enjoy
civil service protection in those jobs and, without that,
no process was due. The district court also granted sum-
mary judgment on the retaliation claim, explaining that
Casna had not engaged in a statutorily protected activity
and was already a candidate for dismissal because she
was not meeting her employer’s expectations.
Analysis
At the outset we note our dissatisfaction with the
parties’ briefs. Federal Rule of Appellate Procedure
28(a)(7), incorporated for an appellee’s brief by F ED. R.
A PP. P. 28(b), requires that a brief include a “statement of
facts relevant to the issues submitted for review with
appropriate references to the record.” Likewise, FED. R.
A PP. P. 28(a)(9)(A) states that the argument section of
a brief must contain “citations to the authorities and
parts of the record on which the [party] relies.” But Loves
Park’s brief, over the course of twenty-two pages, pro-
vides precisely two citations for factual assertions, and
those two cites, which are to deposition exhibits, do not
specify page numbers in the record, as required by C IR. R.
28(c). Loves Park explains generally that it relies on its
Local Rule 56.1 Statement of Facts and the district court’s
memorandum opinion, but it does not tell us where in
6 No. 07-1044
those documents we may find specific facts. This makes
it impossible to verify factual assertions, many of which
are incendiary and inappropriately argumentative.
Because Loves Park violated Rule 28, we strike its “fact”
section and all portions of the argument section that
rely on unsupported facts. FED. R. A PP. P. 28(a)(7);
see also F ED. R. A PP . P. 28(e); C IR. R. 28(c); Pourghoraishi
v. Flying J, Inc., 449 F.3d 751, 754 n.1 (7th Cir. 2006);
Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990,
1001 (7th Cir. 2004) (where party fails to cite the record,
“we will not root through the hundreds of documents and
thousands of pages that make up the record here to make
his case for him.”); L.S.F. Transp., Inc. v. N.L.R.B., 282 F.3d
972, 975 n.1 (7th Cir. 2002) (“We further caution counsel
that violations of Fed. R. App. P. 28(a)(7) and Circuit Rule
28(c) in the future very well could lead to the brief being
stricken, summary affirmance, together with other sanc-
tions.”); United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991) (“Judges are not like pigs, hunting for truffles
buried in” the record.)
Casna deserves some blame as well. Like Loves Park,
she flouts the appellate and circuit rules by failing to cite
to pages in the record. But her brief, at least, connects
factual assertions to specific items in her Local Rule 56.1
statement; those entries, in turn, correspond to appro-
priate record cites. We are mystified why Casna did not
simply insert those record citations into her brief in place
of the citations to the Local Rule 56.1 statement, and
we emphasize that this breaches our rules. See F ED. R.
A PP. P. 28(e); C IR. R. 28(c). Nonetheless, because Casna
provided us with something to work with, we decline
to strike the equivalent sections of her brief.
No. 07-1044 7
On to the merits. We review the district court’s grant of
summary judgment de novo, construing all facts and
reasonable inferences in the light most favorable to
Casna, the nonmoving party. See Mobley v. Allstate Ins. Co.,
531 F.3d 539, 544-45 (7th Cir. 2008). We will affirm if
the evidence at summary judgment establishes that
there is no genuine issue of material fact and that Loves
Park is entitled to judgment as a matter of law. See F ED. R.
C IV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986).
To establish a due process claim, Casna must first
demonstrate that she had a constitutionally protected
property interest in her employment with Loves Park.
See Akande v. Grounds, 555 F.3d 586, 590 (7th Cir. 2009);
Allen v. Martin, 460 F.3d 939, 946 (7th Cir. 2006). That
determination is grounded in Illinois law. Akande, 555
F.3d at 590; Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir.
2009). Casna must show that she had a legitimate ex-
pectation of continued employment by pointing to
specific statutory or contractual language that limits the
discretion of Loves Park to discharge her. See Moss v.
Martin, 473 F.3d 694, 700 (7th Cir. 2007) (citing Krecek v. Bd.
of Police Comm’rs of La Grange Park, 646 N.E.2d 1314, 1318
(1995)). To establish her legitimate expectation of contin-
ued employment, Casna relies on the following pro-
vision of Illinois law, which restricts the ability of munici-
palities to discharge civil service employees, unless for
cause:
Except as hereinafter provided in this Section, no
officer or employee in the classified civil service of any
municipality who is appointed under the rules and
8 No. 07-1044
after examination, may be removed or discharged, or
suspended for a period of more than 30 days, except
for cause upon written charges and after an opportu-
nity to be heard in [her] own defense.
65 ILCS 5/10-1-18(a). We have previously held that a
similar provision, 65 ILCS 5/10-1-18.1, applicable to
employees of cities with population greater than 500,000
(i.e., Chicago), creates a property interest in continued
employment. See Hudson v. City of Chicago, 374 F.3d 554, 559
(7th Cir. 2004). Loves Park agrees with Casna that the
provision on which she relies generally gives local em-
ployees a property interest in their jobs. Based on this
agreement, we have no reason in this case to decide
otherwise.
The Illinois Municipal Code, however, exempts certain
categories of municipal employees from civil service
classification, see 65 ILCS 5/10-1-17, and the parties devote
their energy to arguing whether Casna’s various posi-
tions were exempt. If they were, Loves Park maintains, it
could transfer and discharge her at will. There is no
question that Casna’s first city appointment, as deputy
city clerk, was exempt. Her superior was an elected
official, and “one deputy and one private secretary of
each of the elected municipal officials and the municipal
manager” are exempt from the civil service. See id. Loves
Park was therefore free to reassign Casna to her second
position, the shared administrative assistant to two
heads of major departments.
Loves Park argues that Casna’s job as administrative
assistant was also exempt because the city council resolu-
No. 07-1044 9
tion appointing her to that position specified that it
would be exempt. But a city council cannot override the
civil service provisions of the Illinois Municipal Code, so
we look to that Code to determine whether Casna’s
position was exempt. See Charles v. Wilson, 201 N.E.2d
627, 631 (Ill. App. 1964) (citing People ex rel. Akin v.
Kipley, 49 N.E. 229, 244 (Ill. 1897)). It was not. Only the
municipal manager and elected officials may have exempt
assistants, 65 ILCS 5/10-1-17, yet the record shows that
the Directors of Community Development and Public
Works—unlike Casna’s previous boss, the City Clerk—are
appointed by the city council.
Loves Park also argues that Casna’s final position
with the City, her temporary appointment to the police
department, is exempt, so the City, therefore, could
fire Casna from that position at will. Generally, a munici-
pality need not follow any process before discharging a
temporary employee. See Levin v. Civil Serv. Comm’n of
Cook County, 288 N.E.2d 97, 100 (Ill. 1972). And the Code
applies explicitly only to discharge, removal, and suspen-
sion for a period of more than thirty days; it says
nothing about the process that is due when an employee
is transferred from a civil service job to another, non-
classified, position. But municipalities may not reassign
civil service employees, in disregard of their due-process
protections, to temporary positions that lack such safe-
guards, and then fire them from both jobs without a
hearing. To use a temporary assignment to ignore civil
service protections that apply to the original assignment
would impermissibly eviscerate the protections that
state law has adopted.
10 No. 07-1044
The district court ruled that Casna did not enjoy civil
service protections for a separate reason: because she
was not appointed under the elaborate procedures re-
quired for civil service positions, including the civil
service examination. This argument has some appeal—
often one has to take the bitter (the restrictions that limit
who is appointed) with the sweet (the protections for
those appointed). See, e.g., Bd. of Educ. of Oak Park &
River Forest High Sch. Dist. No. 200 v. Kelly E., 207 F.3d 931,
935 (7th Cir. 2000). Moreover, the civil service safe-
guards generally apply only to an “officer or employee
in the classified civil service of any municipality who is
appointed under the rules and after examination,” 65 ILCS 5/10-
1-18(a) (emphasis added), and it is undisputed that
Casna was not appointed under the rules or after exam-
ination.
But Loves Park is not entitled to benefit from this
general rule here. The city council chose to pass a resolu-
tion wrongly purporting to designate her position ex-
empt. By so doing, Loves Park announced that it was not
necessary for Casna to follow the procedures for
civil service jobs. Having made that determination, Loves
Park has disclaimed any reliance on the absence of
those civil service procedures when considering whether
Casna is covered by civil service protections. See Forest
Pres. Dist. of Cook County v. Ill. Local Labor Relations Bd., 546
N.E.2d 675, 681 (Ill. App. 1989) (holding municipal corpo-
ration estopped from applying civil service examination
requirement against employees after corporation sug-
gested requirement did not apply to them); Feiler v.
Covenant Med. Ctr. of Champaign-Urbana, 598 N.E.2d 376,
No. 07-1044 11
379 (Ill. App. 1992) (“it is well established that the doctrine
of equitable estoppel can be asserted against a municipal-
ity”); Bank of Pawnee v. Joslin, 521 N.E.2d 1177, 1185 (Ill.
App. 1989).
We conclude that Casna had a property interest in
continuing employment and that Loves Park deprived
her of it without a hearing. She is entitled to proceed to
trial on her due-process claim to establish, if she can, any
damages arising from the absence of a hearing. See Carey
v. Piphus, 435 U.S. 247, 267 (1978); Lalvani v. Cook County,
396 F.3d 911, 916 (7th Cir. 2005). If the lack of a hearing
did not cause Casna any pecuniary harm—that is, if her
termination was nonetheless justified on the merits (a
matter we do not decide today)—Casna may recover for
her constitutional injury only nominal damages not to
exceed one dollar. See Carey, 435 U.S. at 267.
We now turn to Casna’s retaliation claim. The anti-
retaliation provision of the ADA provides that “[n]o
person shall discriminate against any individual because
such individual has opposed any act or practice made
unlawful by this chapter or because such individual
made a charge, testified, assisted, or participated in an
investigation, proceeding, or hearing under this chapter.”
42 U.S.C. § 12203(a). To establish a case of retaliation
under the direct method of proof, a plaintiff must show
(1) she engaged in a statutorily protected activity; (2) she
suffered an adverse action; and (3) a causal connection
between the two. Squibb v. Mem. Med. Ctr., 497 F.3d 775, 786
(7th Cir. 2007); Burks v. Wis. Dep’t of Transp., 464 F.3d 744,
758 (7th Cir. 2006). Casna argued that her volley, “Aren’t
12 No. 07-1044
you being discriminatory?,” was a protected activity.
The district judge disagreed, citing Durkin v. City of Chi-
cago, 341 F.3d 606, 615 (7th Cir. 2003), for the proposition
that “[t]o the extent plaintiff’s question to Elliot can be
construed as a complaint, it is not a formal one and on
these facts is inadequate to be found to be statutorily
protected activity.” The district court also noted that
Casna had not shown a causal connection and that, for
purposes of the indirect method, she had not shown
that she was meeting her employer’s expectations.1
Durkin was a Title VII case where the plaintiff ignored
formal company procedures for presenting sexual harass-
ment grievances. We pause here to note that the anti-
retaliation provision of the ADA, 42 U.S.C. § 12203(a), uses
similar language to that in Title VII, 42 U.S.C. § 2000e-3(a);
thus, courts look to Title VII retaliation cases for
guidance in deciding retaliation cases under the ADA.
See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th
Cir. 1998); Smith v. District of Columbia, 430 F.3d 450, 455
(D.C. Cir. 2005) (collecting cases from the eleven other
1
The district court granted summary judgment to Loves
Park on the retaliation claim even though Loves Park did not
request summary judgment on that count in its opening brief
in support of summary judgment. The non-moving party
should always have a chance to respond to the movant’s
arguments, see Edwards v. Honeywell, 960 F.2d 673. 674 (7th
Cir. 1992), which here Loves Park raised for the first time in
its reply brief. Loves Park’s failure to include the retaliation
claim in its opening brief deprived Casna of that opportunity.
We reverse, however, on other grounds.
No. 07-1044 13
geographic circuits). In Phelan v. Cook County, 463 F.3d 773(7th Cir. 2006), another Title VII case, we distinguished
Durkin, holding that informal complaints about sexual
harassment from coworkers can provide an employer
with sufficient notice to establish employer liability,
even if the employee’s alerts did not technically comply
with the company’s notification procedures. Id. at 786.
Other circuits have applied similar reasoning to retaliation
claims, holding that statutorily protected activity “can
range from filing formal charges to voicing informal com-
plaints to superiors.” Hertz v. Luzenac Am., Inc., 370 F.3d
1014, 1015 (10th Cir. 2004) (emphasis added); see Shannon
v. Bellsouth Commc’ns, Inc., 292 F.3d 712, 716 n.2 (11th Cir.
2002); Somoza v. Univ. of Denver, 513 F.3d 1206, 1213
(10th Cir. 2008). We think this an appropriate application
of Phelan and agree that an informal complaint may
constitute protected activity for purposes of retalia-
tion claims.
The district court also thought that Casna could not
establish a causal link between her protected activity and
her firing because her ongoing failure to meet the City’s
expectations had already made her a candidate for termi-
nation. Casna’s failings as an employee may have
prompted the discharge, but so may have Loves Park’s
intolerance of her complaint about discrimination. In
this case the Chief recommended that Loves Park fire
Casna the very day after she complained to Elliot about
her hostility to Casna’s hearing impairment. Suspicious
timing is rarely enough to create a triable issue,
see Tomanovich v. City of Indianapolis, 457 F.3d 656, 665
(7th Cir. 2006), but in an extreme case like this, where the
14 No. 07-1044
adverse impact comes “on the heels” of the protected
activity, it is, see McClendon v. Ind. Sugars, 108 F.3d 789,
796 (7th Cir. 1997) (quoting Dey v. Colt Constr. & Dev. Co.,
28 F.3d 1446, 1458 (7th Cir. 1994)). A fact-finder must
determine whether the Chief initiated Casna’s dis-
charge because she had just protested Elliot’s possibly
discriminatory attitude or because her work performance
was inadequate.
Accordingly, we R EVERSE the district court judgment
and R EMAND for further proceedings.
7-24-09