Cage v. Harper
| Decision Date | 16 July 2021 |
| Docket Number | 17-cv-7621 |
| Parties | PATRICK CAGE, Plaintiff, v. TIFFANY HARPER, NICHOLAS GOWEN, KAMBIUM BUCKNER, DR. MARSHALL HATCH, SR., DR. HORACE SMITH, DR. RACHEL LINDSEY, and THE BOARD OF TRUSTEES OF CHICAGO STATE UNIVERSITY, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Plaintiff Patrick Cage served as the General Counsel of Chicago State University from November 2, 2009 until he was fired on May 22, 2017. Cage believes that the University fired him for illegitimate reasons. According to him, he reported a potential ethics violation by a member of the Board of Trustees. But instead of taking action, the University retaliated against him and forced him out.
Cage responded by suing the former interim President, five members of the Board of Trustees, and the Board itself. The complaint includes four claims. He brings a due process claim, alleging that the University failed to pay him the full amount of his termination pay. He also brings three retaliation claims under state law and the First Amendment.
The parties filed cross motions for summary judgment. For the reasons stated below, Cage's motion for summary judgment is denied, and Defendants' motions for summary judgment are granted.
Before diving into the facts, the Court pauses to address one threshold issue. Defendants objected to two types of evidence offered by Cage in his Rule 56.1 statement. They objected to a privilege log showing communications between two attorneys for the Board, and transcripts produced from recordings of four meetings of the Board of Trustees (Cage, not the Board or the University, prepared the transcripts). See Defs.' Resp. to Pl.'s Mtn. for Summ. J., at 4-7 (Dckt. No. 320).
The parties spilled quite a bit of ink on the issue. Defendants made countless objections in response to Cage's Rule 56.1 statement. See Defs.' Resp. to Pl.'s Rule 56.1 Statement (Dckt. No. 321); Defs.' Resp. to Pl.'s Mtn. for Summ. J., at 4-7 (Dckt. No. 320) (listing objections to 23 of Cage's facts). The parties submitted a sur-reply and a response to the sur-reply, too, before this Court closed the record. See Defs.' Sur-Reply (Dckt No. 363); Pl.'s Resp. to Defs.' Sur-Reply (Dckt. No. 366-1); see also 1/8/21 Order (Dckt. No. 370) (“As a general matter, counsel should resist the temptation to think that filing more is more persuasive.”).
At the summary judgment stage, the evidence “need not be admissible in form (for example, affidavits are not normally admissible at trial), but it must be admissible in content.” Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). In other words, “the Federal Rules of Civil Procedure allow parties to oppose summary judgment with materials that would be inadmissible at trial so long as facts therein could later be presented in an admissible form.” Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014) (emphasis in original).
Under Rule 56(c)(2), a “party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” See Fed. R. Civ. P. 56(c)(2). “When an objection is made, the burden is on the proponent of the material to show either that the material is admissible as presented or to explain the admissible form that is anticipated in the event of trial.” See 11 James Wm. Moore et al., Moore's Federal Practice § 56.91[3] (3d ed. 2020). As the proponent of the evidence, Cage has the burden of showing that the privilege log and the transcripts are admissible in their current form, or that he could present the content in an admissible form at trial.
The objection related to privilege logs is not a heavy lift. Despite Defendants' protestations to the contrary, privilege logs can be admissible evidence. See, e.g., Heckler & Koch, Inc. v. German Sport Guns GmbH, 2014 WL 12756372, at *6 (S.D. Ind. 2014) (“[W]hile the contents of attorney-client communication are ordinarily privileged, the bare fact that communication occurred is not.”). For example, an entry on a privilege log could be a statement by a party-opponent. That is, it could be an admission that a privileged communication took place on a certain day. Sometimes the existence of an attorney-client communication, in and of itself, can have a bearing on the issues at trial.
But in this case, the privilege log is not particularly germane to the issues at hand. Cage uses the privilege log to support facts that, in the end, do not impact the motions for summary judgment. So the Court does not rely on the privilege log. It makes no difference if the privilege log is fair game because the privilege log does not advance the ball.
Defendants also objected to the transcripts of Board meetings. Presenting the information in the transcripts in an admissible form at trial isn't problematic. Cage plans to call the speakers to the witness stand. He plans to use the recordings of the meetings, and transcripts of those recordings, for impeachment purposes only. See Pl.'s Reply in Support of Mtn. for Summ. J., at 3 (Dckt. No. 336)
Defendants don't disagree that Cage could call the persons featured on the recordings to testify at trial. Instead, they argue that Cage's transcripts are so unreliable that Cage should be barred from offering their contents at summary judgment. See Defs.' Resp. to Pl.'s Mtn. for Summ. J., at 4-6 (Dckt. No. 320). Originally, Defendants argued that the transcripts were unreliable because Cage did not submit the recordings themselves, which meant the Court could not verify them. Id. at 5. But since then, Cage has submitted the recordings for the Court's review, so that point is moot. See Recordings (Dckt. Nos. 366-5 to 366-13).
Defendants also raised concerns about the accuracy of the transcripts, particularly with respect to the speaker designations. See Defs.' Resp. to Pl.'s Mtn. for Summ. J., at 6 (Dckt. No. 320). However, if Defendants wanted to object to the accuracy of the transcripts, they should have followed the procedure that the Seventh Circuit outlined to deal with that type of issue:
Initially, the district court and the parties should make an effort to produce an ‘official' or ‘stipulated' transcript, one which satisfies all sides. If such an ‘official' transcript cannot be produced, then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side's version.
United States v. Zambrana, 841 F.2d 1320, 1336 (7th Cir. 1988) (citations omitted).
Here, Defendants objected to Cage's transcripts, without offering versions of their own. And the evidence they produce undermining the transcripts is too general to be useful. For example, in their sur-reply, they point to a statement by one of the Board members that “there's a lot that's not in the transcripts and in that case I don't think it was intentional, just we're on a break . . . again, yeah, there's a lot that is not shown by the transcripts.” See Defs.' Sur-Reply, at 4 n.3 (Dckt. No. 363) (quoting Zollar Dep., at 36:10 - 37:9 (Dckt. No. 309-9)). Maybe the transcripts don't reflect every conversation - including conversations outside of formal meetings - but that doesn't mean that the transcripts of the meetings are inaccurate.
So the Court refuses to throw out the transcripts wholesale. But the Court resolves the pending motions on other grounds, so in the end, the transcripts don't move the needle.
The submissions from the parties are, by any measure, immense. There are eight summary judgment motions. The parties submitted eight different Rule 56.1 statements, containing hundreds of facts supported by a large volume of exhibits. Not to mention the responses, and the replies.
It's a weighty record. To lighten the load, the Court sticks to the facts that provide context, and the facts that are germane to dispositive legal issues. Summary judgment is about “material” facts, see Fed. R. Civ. P. 56(a), so the following overview only includes facts that make a difference.
A. Cage's Employment
Patrick Cage became the General Counsel of Chicago State University on November 2, 2009. See Pl.'s Resp. to Def. Board's Rule 56.1 Statement, at ¶ 4 (Dckt. No. 301). When he accepted the job, Cage signed an employment contract, a document that the parties call his “offer letter.” See Pl.'s Resp. to Def. Board's Rule 56.1 Statement of Additional Facts, at ¶ 12 (Dckt. No. 335).
The employment agreement spanned only two pages. See Offer Letter (Dckt. No. 283-4, at 2-3 of 3). It included provisions about the effective date, his salary, his benefits, and so on. One of the provisions covered his termination rights. “If you are terminated from this position, or the funding supporting this position is not renewed, you will remain employed at the University for a period of six months at your current salary but you may be reassigned to another area to perform duties assigned by me or my designee.” Id. (Dckt. No. 283-4, at 2 of 3).
The employment contract also stated that “[t]he Chicago State University Board of Trustees Policies and Regulations Manual . . . govern[s] your employment contract.” Id. (Dckt. No. 283-4, at 3 of 3). That second document (the “Regulations”) is a much larger document, spanning 85 pages. See generally Regulations (Dckt. No. 274-5). As the name suggests, the Board itself issued the Regulations. Id. The document has a number of sections laying out various administrative policies, including a section on employment-related policies like benefits. Id. at Section II (Dckt. No. 274-5,...
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