Hartman v. Board of Trustees of Community College Dist. No. 508, Cook County, Ill.

• Citation: 4 F.3d 465
• Decision Date: 04 November 1993
• Docket Number: No. 91-3775,91-3775
• Parties: 62 Fair Empl.Prac.Cas. 1043, 62 Empl. Prac. Dec. P 42,507, 85 Ed. Law Rep. 682, 8 Indiv.Empl.Rts.Cas. 1270 Hermene HARTMAN, Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, COOK COUNTY, ILLINOIS; Reynaldo Glover; and Nelvia Brady, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 465

4 F.3d 465

62 Fair Empl.Prac.Cas. 1043,

62 Empl. Prac. Dec. P 42,507, 85 Ed. Law Rep. 682,

8 Indiv.Empl.Rts.Cas. 1270

Hermene HARTMAN, Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508 COOK COUNTY, ILLINOIS; Reynaldo Glover; and Nelvia Brady, Defendants-Appellees.

No. 91-3775.

United States Court of Appeals Seventh Circuit.

Argued Nov. 12, 1992.

Decided Aug. 18, 1993.

Rehearing Denied Nov. 4, 1993.

Thomas H. Geoghegan, Leon M. Despres, R. Edward Wilhoite, Jr. (argued), Despres, Schwartz & Geoghegan, Chicago, IL, for plaintiff-appellant.

Hugh R. McCombs, Jr., David B. Ritter, Michael J. Gill, Bettina Getz (argued), Mayer, Brown & Platt, Chicago, IL, for defendants-appellees.

Before MANION and ROVNER, Circuit Judges, and REYNOLDS, Senior District Judge. ¹

REYNOLDS, Senior District Judge.

Hermene Hartman ("Hartman"), formerly a Vice Chancellor of the City Colleges of Chicago ("City Colleges"), claims she was demoted from that position, in violation of 42 U.S.C. Secs. 1983 and 1985(3), because of her objections to various forms of improper behavior on the part of her superiors. The district court granted summary judgment for defendants-appellees ("defendants") the Board of Trustees of Community College District No. 508, Cook County, Illinois ("the Board of Trustees"), Reynaldo Glover ("Glover"), and Nelvia Brady ("Brady"). For reasons stated below, we affirm.

I. Background

A. Facts ²

In 1973, City Colleges, a public institution governed by the Board of Trustees, hired Hartman to teach at City-Wide College, one of its eight Chicago colleges. She was tenured in 1976, and appointed special assistant to the City Colleges Chancellor in 1984. In 1988, Brady, then the City Colleges Chancellor and chief executive officer, appointed Hartman Vice Chancellor for External Affairs. Hartman's duties in that position included oversight of a program called "Caravan to Knowledge," aimed at recruiting students from housing projects operated by the Chicago Housing Authority ("CHA"). The program was developed by Glover, then Chairman of the Board of Trustees.

In November 1988, according to Hartman's verified complaint, Brady and Glover directed her not to send the Caravan into Latino communities outside of CHA neighborhoods, saying, "we don't like the Beaners." (Rec. 1 at p 11.) Hartman says she objected to the use of that term and "insisted" that the Caravan program not be limited in that way. In 1988, the program eventually visited all CHA sites, but did not visit other neighborhoods. In a December 1, 1988 report to Brady, however, Hartman called the program an "overwhelming success" and raised no objection to its limited scope. (Rec. 79 at p 11.) When the program was repeated in 1989, it was again limited to CHA housing, but apparently without any further objection from Hartman.

Hartman further claims that in 1989, Glover repeatedly asked her to help him obtain sexual favors from other women, including other City Colleges employees, calling it a privilege of his position. Hartman says she told Glover that such requests were an "abuse of power," that they would get him "in a lot of trouble," and that he was "not acting as a chairman of the board." (Rec. 94, Ex. 7 at 264.) In addition, Hartman says, she and another employee informed Brady of Glover's behavior, telling her that they found it "very improper," that they were "sick of being pressured by it" and that they "thought that [Glover] was going to get himself in an awful lot of trouble." (Id.) Hartman claims she also mentioned this problem to her mother, a boyfriend, and two co-workers, but she does not recall the details of those conversations.

Hartman also claims that in January 1989, Brady and Glover asked her to portray Board of Trustees member Robert Weissbourd as a racist, and that in April 1989, Brady asked Hartman to make disparaging public statements about Brady's former husband. Hartman says she refused and objected to both requests and told a few coworkers, friends, and relatives about them, although she does not recall the detail or substance of those conversations.

Finally, Hartman claims that between April 1988 and April 1989, Brady, Glover, or both, issued, and Hartman "refused" to comply with, the following instructions: that Hartman direct all City Colleges vice chancellors and presidents not to make statements to the media; that she issue statements in support of Glover's campaign for public office; that she issue a press release falsely stating that City Colleges' enrollment had increased by ten percent; that she hire a certain person without following the necessary search and interview procedures; that she make "illegal purchases" from a business owned by Brady's brother; and that she initiate a smear campaign against a City Colleges vice chancellor.

Hartman revealed none of this, however, in an interview with a reporter for the Chicago Defender, which published a report on April 24, 1989, stating in part:

Hartman praised Atty. Reynaldo Glover and Dr. Nelvia Brady, chairman of the board of Trustees and chancellor of City Colleges, respectively. She said CCC has the "most active, involved board" than in its history.

"We have to take education to the people, so Brady and Glover are like a 'breath of fresh air,' " Hartman stated. "The things I am doing now, I've wanted to do for a very long time.

This is the first time that I'm being supported and given the resources to implement. While the national trend is downward for enrollment, our enrollment is up."

(Rec. 79 at p 17.) Hartman does not dispute the accuracy of this report.

On July 17, 1989, Brady placed Hartman on administrative leave with full pay and benefits, explaining that her position was to be eliminated and that she was to be returned to a tenured faculty position. On August 3, 1989, the Board of Trustees approved Brady's recommendation that Hartman be reassigned to her present position, an associate professorship at Truman College, which pays substantially less than her former position. That position was eliminated sometime after Hartman's reassignment.

B. District Court Proceedings

Hartman filed her verified amended complaint on October 9, 1990, raising a number of claims stemming from her demotion, two of which are at issue on appeal. The first is that by refusing to send the Caravan program to Latino neighborhoods outside of CHA properties, Brady and Glover conspired to discriminate against Latinos in violation of the Civil Rights Act (or Ku Klux Klan Act) of 1871, 42 U.S.C. Sec. 1985(3), and then demoted Hartman for opposing the conspiracy. ³

Defendants challenged this claim on the ground that their actions were protected by absolute or qualified immunity and on the ground that intracorporate action such as that involved in the administration of the Caravan program cannot form the basis of a conspiracy under Sec. 1985(3). The district court's decision rested, however, on neither ground. Instead, the court dismissed the conspiracy claim for the distinct reason that Hartman had not identified "specific facts" in support of the claim, other than those alleged in her amended complaint. See Fed.R.Civ.P. 56(e).

Hartman's second claim, brought pursuant to 42 U.S.C. Sec. 1983, is that Brady, Glover, and the Board of Trustees demoted her in retaliation for her objections to discrimination against Latinos, to Brady's and Glover's use of racist language, to Glover's sexist behavior, and to the various other instructions or requests described above. The district court dismissed the retaliation claim on the ground that Hartman had failed to show that her objections or refusals raised a matter of public concern. See Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

II. Analysis

A. The Sec. 1985(3) Claim

To prevail under Sec. 1985(3), a plaintiff must prove, first, that the defendants conspired; second, that they did so for the purpose of depriving any person or class of persons of the equal protection of the laws; and third, that the plaintiff was injured by an act done in furtherance of the conspiracy. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971). The district court's decision rested on Hartman's failure to adduce specific facts supporting the second and third elements of the claim.

The difficulty with this rationale is that defendants never actually challenged the factual foundation of the claim; they did not dispute Hartman's assertions that she was fired for objecting to the limited scope of the Caravan program and that the program was operated in a discriminatory manner. Rather, defendants' position was that even if all that were true, still, as a legal matter, Hartman could not recover from them under Sec. 1985(3). Because defendants' arguments did not attack the factual predicate of Hartman's claim, she was under no obligation to improve on it by adducing more specific facts, and the claim should not have been dismissed for her failure to do so. Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.1989) (holding that a discrimination claim should not have been dismissed for failure to produce sufficient evidence of discrimination, since defendant moved for summary judgment only on the ground that the claim was time-barred.)

As an alternative ground for dismissal, defendants contend that Hartman's Sec. 1985(3) claim fails as a result of this court's decision in Travis v. Gary Comm'y Mental Health Ctr., Inc., 921 F.2d 108, 110 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 60, 116 L.Ed.2d 36 (1991), which held, reaffirming Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.1972), that "managers of a corporation jointly pursuing its lawful business do not become 'conspirators' [under Sec. 1985] when acts within the scope of their employment are said to be discriminatory or retaliatory." ⁴ Hartman contends, however, that the Travis rule, known as the intracorporate...