Opinion
Case No. 04 C 5850.
February 9, 2005
OPINION AND ORDER
Before the court is Defendants' Motion for Summary Judgment brought pursuant to Federal Rule of Civil Procedure 56(f). For the following reasons, Defendants' Motion for Summary Judgment is denied.
I. BACKGROUND
The court takes the undisputed facts from the parties' Local Rule 56.1 Statements, and notes disputed facts within the text.
A. Facts
Douglas Foster ("Foster") was an employee of the City of Chicago Heights from 1980 until he was terminated on May 9, 2003. During his time in Chicago Heights, Foster served as the Superintendent of the Water Department, and Director of Public Works. Foster was appointed to Director of Public Works on October 1, 2000, by then Mayor Angelo Ciambrone. As Director of Public Works, Foster supervised three departments: the Water Department, Streets Sewers Department, and the Maintenance Department. In addition, Foster attended monthly mayoral department head meetings. On May 5, 2003, Anthony DeLuca was sworn in as Mayor of Chicago Heights (DeLuca and the City are hereafter, "Defendants"). That same day, Foster was advised by the Mayor's Chief of Staff that his position of Director of Public Works was eliminated, and three new positions were created in its place. On February 17, 2004, Foster filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), claiming discrimination based on age. Then, on June 9, 2004, the EEOC issued a notice of right to sue letter to Foster. Foster then filed his case in the federal district court.
In his Complaint, Foster claims he is a citizen of Arizona. Compl., ¶ 1.
B. Procedural History
Foster filed his three count Complaint based on his right to freedom of association, and violations of both the Age Discrimination in Employment Act ("ADEA"), and Employee Retirement Income Security Act ("ERISA") on September 7, 2004. On November 5 of that same year, Defendants filed their Motion for Summary Judgment. Foster filed his Response on December 16, 2004. Defendants filed their Reply on January 14, 2005. Defendants' Motion for Summary Judgment is now fully briefed and before the court.
II. DISCUSSION
A. Standard of Review
Summary judgment is permissible 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). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Heft v. Moore, 351 F.3d 278, 283 (7th Cir. 2003), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Vukadinovich v. Bd. of Sch. Tr.'s of North Newton School, 278 F.3d 693, 699 (7th Cir. 2002).
In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); see also Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1108 (7th Cir. 2004). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also First Nat'l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 280 (1968); Spiegla v. Hall, 371 F.3d 928, 935 (7th Cir. 2004). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
When a party moves for summary judgment, the court must view the record and all inferences in a light most favorable to the non-moving party. Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F.3d 814, 821 (7th Cir. 2000). However, the inferences construed in the non-moving party's favor must be drawn from specific facts identified in the record that support that party's position. See Szymanski v. Rite-Way Lawn Maintenance Co., 231 F.3d 360, 364 (7th Cir. 2000). Under this standard, "[c]onclusory allegations alone cannot defeat a motion for summary judgment." Thomas v. Christ Hospital and Medical Center, 328 F.3d 890, 892-93 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888-89 (1990)).
B. Questions of Material Fact preclude Summary Judgment
1. Foster's Freedom of Association Claim
Foster alleges that he was fired from his post as Director of Public Works as a result of his political affiliation. As a general proposition, "public employees may not be made to suffer adverse job actions because of their political beliefs." Carlson v. Gorecki, 374 F.3d 461, 464 (7th Cir. 1999) citing Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990); Elrod v. Burns, 427 U.S. 347, 355 (1976); see O'Sullivan v. City of Chicago, Nos. 03-1412 03-1436, 2005 WL 196669, at *4 (7th Cir. Jan. 31, 2005) (under Rutan and its progeny, conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so).
An exception to this rule is "permitted when the government employee responsible for the adverse action can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Carlson, 374 F.3d at 464, citing Branti v. Finkel, 445 U.S. 507, 517-18 (1980). This exception has been called the "policymaking," or "confidential" employee exception. Id., see also Hudson v. Burke, 913 F.2d 427, 431 (7th Cir. 1990). Put another way, "the critical inquiry is whether party affiliation is an appropriate requirement for performing the job." Id., citing Thompson v. Illinois Dept. of Professional Regulation, 300 F.3d 750, 755-56 (7th Cir. 2002). Whether party affiliation is necessary for the job in question is determined by a "functional test that examines the powers and duties inherent in the position." Carlson, 374 F.3d at 464.
Foster states that his job as Director of Public Works included instructing city employees, such as the foremen in the Street Department, supervisors in the Sewer Department, crew in Building-Maintenance Department, and supervisors in the Water Department. In addition, Foster authorized overtime pay for these departments, and discipline employees. Furthermore, Foster was responsible for the maintenance of the City's water supply system and all equipment and machinery. On the other hand, Defendants view Foster as an employee who was responsible for policy making decisions, by virtue of his presence at the monthly mayoral staff meetings. Def.'s Mot. for Summ. J., at 5.
The court finds that there are still genuine issue of material fact as to the reason for Foster's termination. "It is rarely appropriate on summary judgment for a district court to make a finding on a state of mind." McGreal v. Ostrov, 368 F.3d 657, 677 (7th Cir. 2004). In viewing the evidence in the light most favorable to the non-moving party, a reasonable jury could determine that Foster was fired because of his political affiliation. Both parties cite separate reasons for Foster's dismissal. The court must, therefore, "look at the evidence as a jury might, construing the record in the light most favorable to the nonmovant and avoiding the temptation to decide which party's version of the facts is more likely true." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Foster claims his dismissal was politically based, while Defendants allege it was the result of government reorganization. Any decision as to the merits of either party's claim will necessarily force the court make assumptions as to each party's veracity.
Furthermore, both parties erroneously focus on whether Foster's positions fit within the "policymaker" or "confidential" labels.Carlson, 374 F.3d at 465. The "ultimate inquiry is whether party affiliation is an appropriate requirement for performing the job." Id., at 464. There was nothing inherently political about Foster's positions within the City of Chicago Heights. His employment was managerial; Foster was only responsible for logistics, and the day to day operations of the city's public works departments. His political affiliation was not a necessary element to adequately perform his job.
2. Foster's ADEA and ERISA Claims
Moreover, summary judgment cannot be granted as to Foster's ADEA claim. The ADEA claim also deals with the issue of whether political affiliation was a necessary element of Foster's employment. 29 U.S.C. § 630(f) states, in part: "The term `employee' means an individual employed by any employer except that the term . . . shall not include any person elected to public office . . . or any person chosen by such officer to be on such officer's personal staff, or any appointee on the policymaking level." Summary judgment "cannot be used to resolve swearing contests between litigants." Payne, 337 F.3d at 770. Therefore, there is still a genuine question of material fact as to whether Foster's political affiliation was the result of his termination. As a result, summary judgment is not proper as to Foster's ADEA claim.
Lastly, there are still genuine issues of material fact in regards to Foster's ERISA claim. The Seventh Circuit has previously stated that ERISA may cover sick leave for employees.See Lindermann v. Mobil Oil Corp., 141 F.3d 290, 297 (7th Cir. 1998). Therefore, the issue of whether sick leave is covered under ERISA is still a question of fact.
III. CONCLUSION
For the reasons stated above, the court denies Defendants' Motion for Summary Judgment. IT IS SO ORDERED.