Brennan v. Daley

Decision Date08 April 1991
Docket NumberNo. 89-3266,89-3266
Citation929 F.2d 346
PartiesDennis BRENNAN, Plaintiff-Appellant, v. Richard M. DALEY, in his official capacity as Mayor of Chicago, a municipal corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

John F. O'Meara and Cyriac D. Kappil, Chicago, Ill., for plaintiff-appellant.

Ruth M. Moscovitch, Kelly R. Welsh, Asst. Corp. counsel, Appeals Div., Jonathan P. Siner, Mardell Nereim, and Michelle Hutchinson, Office of the Corp. Counsel, Chicago, Ill., for defendant-appellee.

Before CUDAHY and FLAUM, Circuit Judges, and PELL, Senior Circuit Judge.

PELL, Senior Circuit Judge.

Dennis Brennan appeals from the district court's entry of summary judgment in favor of the defendant. Brennan alleged a violation of Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir.), cert. denied, 402 U.S. 909, 91 S.Ct. 1383, 28 L.Ed.2d 650 (1971), charging that the City improperly considered political affiliation in filling a vacancy for the position of hoisting engineer apprentice. The district court determined that Brennan did not timely file his Shakman complaint and entered judgment in favor of the City.

I.

On August 28, 1984, Brennan applied for a position of hoisting engineer apprentice in response to a notice that there was an available position. The notice indicated that the application deadline was August 31, 1984. At the time that Brennan filed his application, he did not receive notice of the Shakman procedures, although the Shakman decree requires that such notice be given.

On September 13, 1984, Brennan received a list of applicants for the hoisting engineer apprentice position in response to a Freedom of Information Act (FOIA) request. The list, which was current through September 5, 1984, contained the names of forty-seven applicants. On the same day that Brennan received the list of applicants, the City expanded the application deadline for the position to October 24, 1984.

Brennan filed a FOIA request to determine who ordered that the application period be extended. Personnel Director, Charles Pounian, denied the request by letter, however, he provided Brennan with a second list of applicants current through September 24, 1984. That list contained the names of 116 applicants. Brennan filed a second FOIA request in an effort to determine who had ordered that the application period be reopened. Paul Waterhouse, a Freedom of Information Officer, sent Brennan a letter stating that he could not determine who had ordered that the application period be reopened. During the time that Brennan filed his FOIA requests, he also made numerous inquiries about the status of his application and was informed that he would be contacted when the review of the applications was completed.

On October 3, 1985, unbeknownst to Brennan, Robert Terzich, Jr., the son of a state senator, 1 was permitted to file an application for the hoisting engineer apprentice position, nearly a full year after the extended deadline for applications. Terzich's application was accompanied with a statement from his doctor, which was later determined to be false, that Terzich had been under the doctor's care and had been too sick at the time of the application deadline to apply.

In either late December 1985 or early January 1986, Brennan received a list of hoisting engineers hired by the City, showing that Terzich was hired on December 16 1985. Within a month of his receipt of the hiring list, Brennan had his initial conversation with Robert Joyce, Deputy Commissioner of Personnel. Brennan asked Joyce whether any of the names on the hiring list were suspicious under Shakman. Joyce told Brennan that Terzich might be the son of a state senator, thus his hiring might be suspicious. When Brennan first became aware of Terzich's political connections, he also knew that Terzich's name did not appear on the list of applicants as of September 1984.

At either the initial meeting between Brennan and Joyce or a meeting two to three weeks later, Joyce told Brennan about the procedures for filing a Shakman complaint. In addition, Joyce apparently offered to copy the relevant information about the Shakman process for Brennan. Joyce did not, however, mention the 180-day statute of limitations applicable to such actions. It should also be noted, that although Joyce informed Brennan about the Shakman procedures, he also indicated that the mere fact that Terzich was a state senator's son was probably insufficient to support a Shakman violation. Thereafter, Brennan requested that Joyce provide him with a final eligibility list for the hoisting engineer's position. Although Brennan had received two other lists, Joyce denied the request on the basis of applicant privacy.

Apparently in response to Brennan's inquiries into the hiring of Terzich, Joyce initiated an investigation. Joyce determined that the medical excuse advanced by Terzich as the rationale for his application outside of the application period was inaccurate. As a result of that discovery, Terzich was terminated. Although there is some dispute as to the exact date upon which Brennan learned of Terzich's termination, it appears that as of the end of April 1986, Brennan knew that Terzich was fired because of a false statement in his application.

In July 1986, Brennan received a copy of Terzich's employment application. When Brennan received the application, he first determined that Terzich had filed his application almost a year after the deadline. Brennan filed a Shakman complaint in federal court on November 6, 1986. Judge Getzendanner dismissed the complaint without prejudice, noting that Brennan initially had to file the complaint with the City. After its investigation of Brennan's complaint, the City determined that there was no evidence of political consideration in Terzich's hiring. Thereafter, Brennan reinstated his federal complaint.

The City filed a Motion for Summary Judgment in the district court alleging that the complaint was not timely filed. The district court held a hearing on the statute of limitations issue. The court concluded that as of April 1986, Brennan knew of sufficient facts to support a Shakman charge. Therefore, the statute of limitations began to run as of April 1986 and the 180-day limitation period expired on October 27, 1986. As such, the district court found that Brennan's filing of November 6, 1986 was untimely.

II.

We review the district court's granting of summary judgment in this case de novo, drawing all reasonable inferences from the record in the light most favorable to the nonmoving party to determine whether there are any genuine issues of material fact remaining for trial. " 'If there are such issues, summary judgment may not be granted. In the absence of any such issues, we determine whether the moving party is entitled to judgment as a matter of law.' " Rizzo v. Caterpillar, Inc., 914 F.2d 1003, 1006 (7th Cir.1990) (quoting Thomas v. United Parcel Service, Inc., 890 F.2d 909, 914 (7th Cir.1989)).

In Smith v. City of Chicago, 769 F.2d 408, 413 (7th Cir.1985), this court held that the Title VII 180-day statute of limitations is applicable in Shakman actions. In addition, the Smith court adopted the balance of the Title VII timing rules "including those defining the accrual of the claim and tolling of the period of limitations." Id. Thus, we must evaluate Brennan's claim under the timing rules of Title VII to determine whether the suit was time-barred.

It is well-settled that the limitations period for Title VII claims begins running on the date of the alleged unlawful practice. Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1376 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987). The limitations period is, however, subject to equitable tolling. Vaught v. R.R. Donnelley & Sons, Co., 745 F.2d 407, 410 (7th...

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