Denise Luster-Malone v. Cook County, Illinois

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 29, 2019*
Decided September 3, 2019
Before
DIANE P. WOOD, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐3544
DENISE R. LUSTER‐MALONE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 16 C 2903
COOK COUNTY, ILLINOIS, Thomas M. Durkin,
Defendant‐Appellee. Judge.
ORDER
Denise Luster‐Malone, a former employee of the Cook County Health and
Hospital System, sued the County for firing her for politically discriminatory reasons, in
violation of the Supplemental Relief Order entered in Shakman v. Democratic Org. of Cook
Cty., 481 F. Supp. 1315, 1358 (N.D. Ill. 1979). The district court granted the County’s
motion to dismiss Luster‐Malone’s complaint, agreeing with an arbitrator (1) that her
claim was foreclosed by a prior arbitral decision concluding that the County had
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 18‐3544 Page 2
proved nonpolitical grounds for her discharge and (2) that Luster‐Malone’s request for
arbitration was untimely. We affirm.
Luster‐Malone worked as a stenographer for the County’s Health and Hospital
System before being fired in late 2009 for falsifying time sheets and refusing to follow
her supervisor’s instructions. Believing that her discharge was politically motivated, she
filed a grievance with her union. An arbitrator denied her grievance in 2011, finding just
cause for the discharge within the collective bargaining agreement. Regarding the first
offense, falsifying time sheets, the arbitrator found no credible evidence that
Luster‐Malone had worked on the date for which she sought overtime pay. Regarding
the second offense, insubordination, the arbitrator found that she inexplicably refused
to perform a simple, administrative task. She did not challenge this arbitration ruling.
Meanwhile, Luster‐Malone also filed Shakman complaints against the hospital.
Shakman refers to a series of consent decrees that allows parties aggrieved by certain
types of political patronage in Cook County to seek redress. See, e.g., O’Sullivan v. City
of Chicago, 396 F.3d 843, 847–50 (7th Cir. 2005) (recounting the history of the Shakman
consent decrees). Under Shakman’s Supplemental Relief Order, which established rules
and procedures for administering such complaints, Luster‐Malone submitted 32
complaint forms to the Office of the Cook County Complaint Administrator between
2009 and 2012, primarily asserting that she was fired for political reasons. In 2014, the
Office of the Inspector General denied her complaints.
Luster‐Malone, represented at the time by counsel, next filed a discrimination
complaint with the Cook County State’s Attorney’s Office and requested arbitration. In
2016, the arbitrator dismissed her complaint: not only was her claim of political
discrimination precluded by the 2011 arbitration (in which that arbitrator found the
reasons for her discharge to be nonpolitical), but her complaint was untimely because
she had filed it one day late.
Luster‐Malone then filed this federal suit, alleging that the arbitrator in 2016
erroneously refused to hear her case. Magistrate Judge Schenkier, who oversaw the
Shakman litigation, construed the complaint as seeking to vacate the 2016 arbitration,
found no error in the arbitrator’s ruling, and recommended that the complaint be
dismissed. Luster‐Malone objected to the magistrate judge’s recommendation, but her
objections focused only on the merits of the underlying 2011 arbitration and the facts
surrounding her discharge. The district judge found the objections improper (a
misguided “attempt to relitigate before this Court the merits of her time sheet and
No. 18‐3544 Page 3
insubordination issues”), so he adopted the magistrate judge’s recommendation and
dismissed the complaint.
On appeal, Luster‐Malone generally challenges the district judge’s conclusion
that she had not filed proper objections to the magistrate judge’s report. She continues
to dwell on the underlying 2011 arbitration, disputing its findings about her discharge.
Even though Luster‐Malone’s objections were insufficient, the district judge
carefully reviewed the magistrate judge’s report. Luster‐Malone’s “objections need[ed]
to be specific enough to alert the district court as to what issues are actually in dispute.”
Sullivan v. Running Waters Irrigation, Inc., 739 F.3d 354, 359 (7th Cir. 2014); see also FED.
R. CIV. P. 72(b). She therefore had to “specify each issue for which review is sought and
not the factual or legal basis of the objection.” Walton v. EOS CCA, 885 F.3d 1024, 1029
(7th Cir. 2018) (quoting Johnson v. Zema Sys. Corp., 170 F.3d 734, 741 (7th Cir. 1999)). Her
objections, however, failed to address either of the magistrate judge’s two reasons for
upholding the 2016 arbitrator’s decision—(1) the preclusive effect of the 2011 arbitration
and (2) the untimeliness of her request for arbitration in 2016. The district judge rightly
found no clear error in this reasoning. See FED. R. CIV. P. 72(a). Regarding the issue of
preclusion, the district judge properly agreed with the magistrate judge that the 2011
arbitrator’s finding of just cause established nonpolitical grounds for Luster‐Malone’s
discharge, foreclosing any liability for the County in the 2016 arbitration. A proven
nonpolitical ground for the alleged political discrimination precludes liability.
See Brown v. Cty. of Cook, 661 F.3d 333, 337 (7th Cir. 2011). Moreover, “the matter of a
prior arbitration’s preclusive effect on a later arbitration is one for the arbitrator himself
or herself to address.” Unite Here Local 1 v. Hyatt Corp., 862 F.3d 588, 599 n.8 (7th Cir.
2017). Regarding the issue of timeliness, the district judge also correctly found no error,
adding that Luster‐Malone did not dispute that she missed the deadline or provide any
explanation for the delay.
Finally, Luster‐Malone argues for the first time that the arbitrator was biased
because he granted the County many continuances in the course of the arbitration
proceedings but did not afford her an extension to file her complaint. But the record
does not show that she ever sought a continuance or extension and, even if she had, an
adverse ruling, without more, is not evidence of bias. Trask v. Rodriguez, 854 F.3d 941,
944 (7th Cir. 2017).
We have considered Luster‐Malone’s remaining arguments, and none has merit.
AFFIRMED