Walsh v. Ward, 90-3250.

Citation757 F. Supp. 959
Decision Date01 March 1991
Docket NumberNo. 90-3250.,90-3250.
PartiesJames WALSH, Plaintiff, v. Pat WARD and Thomas Oseland, each individually and in his official capacity as Director of the Department of Public Safety and Fire Chief, respectively of the City of Springfield, Illinois, Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois

James P. Baker, Springfield, Ill., for plaintiff.

James K. Zerkle, Corp. Counsel, Gary S. Rapaport, Corp. Counsel, City of Springfield, Springfield, Ill., for defendants.

OPINION

RICHARD MILLS, District Judge:

In the aftermath of the Supreme Court's decision in Rutan v. Republican Party of Illinois, ___ U.S. ___, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), several prominent issues regarding retroactivity and qualified immunity necessarily have arisen.

This case, in part, involves such questions.

I. Facts

The Plaintiff, James Walsh, was hired by the City of Springfield as a firefighter in 1972 and rose through the civil service system to the rank of Battalion Chief in 1988. Pat Ward is the elected director of the Springfield Department of Public Safety which encompasses the fire department. Thomas Oseland is the Fire Chief of the City of Springfield and serves at the will of the Director of Public Safety.

Prior to his elevation to the position of Battalion Chief, Plaintiff was employed as a Captain and assigned duties with an engine company. Plaintiff's work schedule required a 24-hour shift followed by 48-hours off-duty. Because of this schedule he enjoyed the opportunity to engage in employment and business opportunities independent of his duties as a firefighter during his off-duty hours.

During October 1988, after placing first on the civil service examination, Plaintiff was promoted to the rank of Battalion Chief and assigned a position with the training division of the Springfield Fire Department. Because of his new assignment, Plaintiff was required to work a "normal" 40 hour work week thus losing the opportunity to engage in outside employment. Plaintiff allegedly is less qualified for the training position than other individuals who placed lower on the civil service eligibility list for Battalion Chief and who were appointed to that rank. Traditionally, the most senior individual on the eligibility roster (Plaintiff) would have his selection of shift assignments.

Plaintiff alleges that "for many years" he has openly expressed critical opinions regarding the manner in which Pat Ward performed his role as Director of the Department of Public Safety and, from time to time, supported candidates for elective office who ran against Pat Ward. Plaintiff's assignment to the training position by Defendants is allegedly in retaliation for his "expressions of political views."

Plaintiff alleges that Defendants' retaliation violates the first and fourteenth amendments and seeks compensatory and punitive damages, attorney's fees and costs pursuant to 42 U.S.C. §§ 1983, 1988.

Defendants have moved to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b) on three grounds. First, Defendants argue that Plaintiff's cause of action is barred by the two-year statute of limitations governing § 1983 actions. Second, Defendants contend that Rutan should not be applied retroactively. Third, to the extent that they are sued in their individual capacities, Defendants argue that they enjoy qualified immunity.

II. Motion to Dismiss

In ruling on a motion to dismiss, the Court "must accept the well pleaded allegations of the complaint as true. In addition, the Court must view these allegations in the light most favorable to the Plaintiff." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). The applicable rules do not necessitate a detailed outline of the claim's basis. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). Still, a "complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985).

III. Analysis
A. Statute of Limitations

Plaintiff filed this action on October 5, 1990. In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) the Supreme Court held that the applicable statute of limitations for § 1983 claims is the state period for personal injury torts. Recently in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) the Supreme Court reaffirmed its holding in Wilson and held that all § 1983 actions are to be governed by a single state limitation period for torts in general rather than a statute of limitations limited to specific intentional torts.

Under Illinois law, a general two-year statute of limitations applies to tort actions. Ill.Rev.Stat. ch. 110, ¶ 13-202. See Kalimara v. Illinois Dep't of Corrections, 879 F.2d 276, 277 (7th Cir.1989).

In Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (per curiam), the Supreme Court held that the statute of limitations for a § 1983 action begins to run at the time notice is given of the discriminatory act. Id. at 8, 102 S.Ct. at 29 (citing Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)). Such notice can be oral. Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 288 (7th Cir.1986).

Defendants, relying upon an affidavit submitted by Oseland,1 argue that Plaintiff received oral notice of his assignment to the training division on or before October 4, 1988. This notice was allegedly provided by Oseland during a telephone conversation with Plaintiff occurring sometime between September 29 and October 4, 1988. Plaintiff has responded with his own affidavit wherein he states that he first learned of his promotion and reassignment during a telephone conversation with Elmer Renfro, a Deputy Chief in the Springfield Fire Department, on October 8, 1988. Plaintiff further states that it was not until October 11 that he first spoke with Oseland regarding his transfer.

Clearly a genuine issue of material fact exists concerning the date on which Plaintiff learned of the allegedly discriminatory act. Thus, Defendants' motion for summary judgment on this issue must be denied.

B. Retroactivity of Rutan

Defendants' second argument in support of their motion to dismiss is that Plaintiff's action is premised on the Court's decision in Rutan and that decision should not be applied retroactively. Plaintiff admits that Rutan strengthens his case but denies that this action must be dismissed if Rutan is applied prospectively only.

In Rutan the Court considered a challenge under the first and fourteenth amendments to a wide variety of political patronage practices within the Illinois state government. The Court extended the rule first announced in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) prohibiting patronage dismissals to lesser retaliatory measures including promotions, transfers, recalls and hiring. Rutan, 110 S.Ct. at 2737-39.

Generally, federal cases are decided in accordance with the law existing at the time of the decision. Goodman v. Lukens Steel Co., 482 U.S. 656, 662, 107 S.Ct. 2617, 2621-22, 96 L.Ed.2d 572 (1987). In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) the Court announced an exception to this general rule. In that case the Court considered whether a decision abandoning the equitable doctrine of laches in favor of a one-year state statute of limitations governing actions under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, should be applied retroactively so as to bar an injured worker's action under the Lands Act.

There are three factors a court must consider in determining whether to apply a decision prospectively only. First, whether the new rule establishes a new principle of law, either by overruling established circuit precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, the court must weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retroactive operation will further or retard its operation. Third, the court must consider the inequity imposed by retroactive application. Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355-56.

Following the Court's 1976 decision in Elrod, three circuits held that Elrod would be applied only prospectively. See Ramey v. Harber, 589 F.2d 753 (4th Cir.1978), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979); Aufiero v. Clarke, 639 F.2d 49 (1st Cir.), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 421 (1985); Marino v. Bowers, 657 F.2d 1363 (3d Cir. 1981) (en banc).

In Marino the Third Circuit, in considering a Pennsylvania county boardmember's challenge to his patronage dismissal, found that, while it was possible through hindsight to reconstruct a foreshadowing of the Elrod holding, the Elrod decision effectively overruled a Pennsylvania Supreme Court ruling upholding patronage dismissals on which the county board had relied. Marino, 657 F.2d at 1368.

In considering the second Chevron factor the circuit court in Marino saw "no reason why the prospective application of Elrod would not be sufficient to vindicate the constitutional principle it enunciated." Id. at 1369. The final and most compelling factor is the inequitableness of retroactive application. In Marino and Ramey the courts reasoned that applying Elrod retroactively would require the displacement of numerous governmental employees in favor of those who had been discharged pursuant to the patronage system. In concluding its analysis, the Marino court, as did the First and Fourth Circuits in Aufiero and Ramey, held that Elrod should not...

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  • Walsh v. Ward
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 28 Abril 1993
    ...The district court dismissed the complaint under Fed.R.Civ.P. 12(b)(6), holding that defendants are immune from liability in damages. 757 F.Supp. 959. (Walsh, back on 24-hour shifts, does not seek an injunction or damages from the municipality.) In assigning Walsh to a new position after hi......

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