Casna v. City of Loves Park

• Citation: 574 F.3d 420
• Decision Date: 24 July 2009
• Docket Number: No. 07-1044.,07-1044.
• Parties: Mary CASNA, Plaintiff-Appellant, v. CITY OF LOVES PARK, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

574 F.3d 420

Mary CASNA, Plaintiff-Appellant, v. CITY OF LOVES PARK, et al., Defendants-Appellees.

No. 07-1044.

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2007.

Decided July 24, 2009.

Daniel J. McGrail (argued), Rockford, IL, for Plaintiff-Appellant.

Stephen E. Balogh, III (argued), Williams McCarthy, Rockford, IL, for Defendants-Appellees.

Before MANION, ROVNER and SYKES, Circuit Judges.

ROVNER, 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 (collectively, Loves Park) violated the Americans with Disability Act by firing her when she complained about mistreatment. See 42 U.S.C. § 12203(a). Casna also claims that Loves Park deprived her of her job without due process, 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 distractions 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 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 coworkers.

The tension between Casna and Elliot came to a head in June 2003, two months into Casna's temporary appointment 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 apologize 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 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 evaluation of a subordinate during the subordinate's first year on the job, and that she had never evaluated a probationary 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 department'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 discharging her without the opportunity to be heard guaranteed 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 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 summary 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 FED. R.APP. 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.APP. 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, provides 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 CIR. 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 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.APP. P. 28(a)(7); see also FED. R.APP. P. 28(e); CIR. 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 sanctions."); 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 appropriate 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 FED. R.APP. P. 28(e); CIR. R. 28(c). Nonetheless, because Casna provided us with something to work with, we decline to strike the equivalent sections of her brief.

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 FED. R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 expectation of continued employment by pointing to specific statutory or contractual language that...