865 F.2d 827 (7th Cir. 1989), 87-1181, Cygnar v. City of Chicago

Docket Nº:87-1181.
Citation:865 F.2d 827
Party Name:Gerald CYGNAR, Thomas Flanagan, John Murray, Administrator of the Estate of Francis O'Driscoll, Robert Shanahan, John Capesius, John Di Maggio, James Gartner, Francesco Riggio, Jerold Wojnar, Dwight Bleke, Frank Cappitelli, and Lucille Rubino, Administratrix of the Estate of Raymond Rubino, Plaintiffs- Appellants, v. CITY OF CHICAGO, Raleigh Mathis
Case Date:January 04, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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865 F.2d 827 (7th Cir. 1989)

Gerald CYGNAR, Thomas Flanagan, John Murray, Administrator

of the Estate of Francis O'Driscoll, Robert Shanahan, John

Capesius, John Di Maggio, James Gartner, Francesco Riggio,

Jerold Wojnar, Dwight Bleke, Frank Cappitelli, and Lucille

Rubino, Administratrix of the Estate of Raymond Rubino,

Plaintiffs- Appellants,

v.

CITY OF CHICAGO, Raleigh Mathis, Fred Rice, and Harold

Washington, individually and officially,

Defendants-Appellees.

No. 87-1181.

United States Court of Appeals, Seventh Circuit

January 4, 1989

Argued Feb. 11, 1988.

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John L. Gubbins, John L. Gubbins & Assoc., Ltd., Chicago, Ill., for plaintiffs-appellants.

Mary L. Mikva, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before COFFEY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

The plaintiffs-appellants, 13 Chicago police officers, appeal the district court's grant of judgment notwithstanding the verdict (JNOV) in favor of the defendants-appellees, City of Chicago, Fred Rice, and Raleigh Mathis. The court's JNOV order overturned the lion's share of a jury's $4.29 million verdict finding that the plaintiffs had been transferred from the City's Office of Municipal Investigations to assignments within the Chicago police department because of their race and political affiliation. The plaintiffs further appeal the court's entry of a directed verdict in favor of the defendant Harold Washington (the former mayor of Chicago). We affirm in part, reverse in part, and remand for further proceedings.

FACTS

Prior to the summer of 1984, the plaintiffs, thirteen white Chicago police officers, had all been assigned to posts within the City of Chicago's Office of Municipal Investigation (OMI). The mayor of Chicago established OMI, an independent division of city government, in 1977 (under the title "Office of Professional Review") for the purpose of investigating corruption within city government. In 1980, Mayor Jane Byrne appointed James Maurer (defendant Mathis's predecessor) to head the OMI unit. Maurer, with the benefit of an increased budget, selected and trained highly qualified officers of his choosing in an attempt to professionalize the office. Among these officers were all of the 13 plaintiffs, most of whom Maurer had known and worked with for many years. 1 By the time of Maurer's removal in April of 1984, OMI employed 32 sworn (Chicago police department) and unsworn (civilian) investigators.

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During the 1983 mayoral campaign, which pitted Harold Washington against Jane Byrne in the Democratic primary and later Washington against Bernard Epton, the Republican candidate, in the general election, eight of the appellants campaigned for either Byrne or Epton. Several attended fund raisers for one or the other. One plaintiff, Shanahan, organized and co-hosted a large fund raiser for Byrne, which 1500 people attended. Five of the plaintiffs made campaign contributions to Epton, and another (Capesius) purchased a ticket and attended an Epton rally. Another plaintiff (Flanagan) canvassed his precinct and worked actively for Epton (whether Mathis knew of these activities was, as we shall see, one bone of contention at trial).

The year following his election as mayor of the City, Washington removed Maurer, and on April 23, 1984, appointed Mathis to the position of Executive Director of OMI. Mathis, a strong Washington supporter, reported directly to William Ware, then Washington's chief of staff. Shortly after his appointment, Mathis conducted a survey of the gender and race of the OMI staff, and on May 24, 1984, wrote a memo to Ware reporting that of the 32 police officers assigned to OMI, 28 were white males, three were black, and one, who had just started a month earlier, was a Hispanic female. Mathis's memo also noted that all of OMI's lieutenants and sergeants were white males. The memo concluded:

"As this data indicates, affirmative action concepts do not exist in this department, either in its civilian or police components.

Due to the obvious constraints in dealing with the civilian career service personnel, resolving this imbalance will be a long-range goal. However, in reference to the police personnel, this is being dealt with immediately.

Further reports on this progress will follow."

Subsequently, Mathis met with Ware at City Hall to discuss the May 24 memorandum. During their discussion, Ware asked Mathis what he intended to do about the perceived "imbalance" in the racial makeup of OMI personnel. Mathis replied that "I told him I intend to correct that imbalance by the selection of different personnel from the police department."

Within weeks of his meeting with Ware, Mathis began instituting the transfer of sworn personnel from OMI to other positions within the Chicago police department. In mid-June 1984, Mathis informed three supervisors, including plaintiffs Di Maggio and Cappitelli, that he was transferring them out of OMI. Officer Di Maggio testified that Mathis told them he was transferring them "because I'm bringing my own people in." Shortly thereafter, Paul Lewis, then OMI director of operations, informed plaintiff Capesius, another supervisor, that "I had better put my P.A.R. [Personnel Action Request] form in and get out or I could be dumped anywhere in the city." Subsequently, Capesius requested and was granted a transfer. Similarly, plaintiff Wojnar testified that his supervisors advised him that the detectives' positions were not stable and that his "status as a detective could not be guaranteed." Based upon this information, Wojnar asked to be transferred to his previous unit in order to avoid "being sent to a distant location." Plaintiff Gartner also requested a transfer in June but only after Mathis informed him that his transfer was imminent.

About one month later (on July 25, 1984), Mathis ordered the transfer of a group of eight sworn investigators out of OMI. Five of the plaintiffs (Cygnar, Flanagan, O'Driscoll, Shanahan and Rubino) were transferred as part of this group. The other three plaintiffs (Bleke, Riggio and Murray) left OMI shortly thereafter at their own request although each testified that the July 25 transfer order played a role in his decision to request a transfer. 2

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As the plaintiffs transferred out and Mathis brought in new officers to replace them, the racial and gender makeup of OMI personnel dramatically altered. Most new officers were not individual replacements for the plaintiffs although Flanagan testified that he was replaced by a black male, and Murray testified that he was replaced by a white male. While a number of the replacements were white, a majority of the people Mathis brought in were black or Hispanic. By August 31, 1984, the number of white male officers at OMI had been reduced from 28 to 15 (Mathis brought in 13 of these 15) while the number of minority investigators had been increased from four to 17. Mathis reported these personnel changes, including the race and sex figures, to Ware in a memo dated August 30, 1984.

Subsequently, the plaintiffs sued Mathis, Mayor Washington, Fred Rice, and the City of Chicago under 42 U.S.C. Sec. 1983, alleging that their transfers out of the OMI unit had been politically and racially motivated in violation of the first and fourteenth amendments to the U.S. Constitution, respectively. Plaintiffs' complaint also stated claims for relief under the due process clause of the fourteenth amendment and Title VII of the Civil Rights Act of 1964. A problem that plagues this case (to the defendants' detriment) took shape soon after the plaintiffs filed their lawsuit--a problem that relates to the defendants' defensive posture on the plaintiffs' racial discrimination claim. Beginning with their answer and continuing throughout trial, the defendants have defended against the plaintiffs' race claim on one primary ground: that Mathis's actions were based not upon discriminatory animus but rather his legitimate desire to "bring in his own people." But also thrown in for good measure have been hints at a backup theory: that if Mathis's transfer decisions were based upon the plaintiffs' race, Mathis still did not violate the plaintiffs' fourteenth amendment rights because he was attempting in good faith to institute a valid affirmative action program.

As we discuss later, this backup theory (essentially legal discrimination) is at odds with the defendants' primary defense of non-discrimination. More significantly, the defendants failed to pursue this second line of attack in those terms either before or during trial--they neither filed a motion of summary judgment on the issue (couched in terms of qualified immunity or otherwise) nor did they raise the issue in their motion for a directed verdict at the close of the plaintiffs' case. 3 While the affirmative action defense should thus have been dead and buried at that point, the trial judge, at neither party's request, resurrected the issue at the last minute in the form of this special interrogatory to the jury (which all the jurors answered in the affirmative). 4

"Do you find that Raleigh Mathis's decision to reassign plaintiff out of OMI to the extent it was substantially motivated by the intent to discriminate against plaintiff because of his race, was perceived by Mathis as a means to correct what he considered a previously-existing racial imbalance within OMI?"

Taking the bait, the defendants finally included the lost "affirmative action defense"

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in their motions for a JNOV, which leads to the subject of this appeal: the district court's ruling on the defendants' motions for judgment notwithstanding the jury's verdict in the plaintiffs' favor.

At the close of all the evidence, the jury (after deliberation)...

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