O'Connor v. Chicago Transit Authority

• Decision Date: 12 February 1993
• Docket Number: No. 91-3747,91-3747
• Citation: 985 F.2d 1362
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 206, 60 Empl. Prac. Dec. P 42,042 Robert O'CONNOR, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Walter H. Clark, Robert E. Paaswell, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1362

985 F.2d 1362

61 Fair Empl.Prac.Cas. (BNA) 206,

60 Empl. Prac. Dec. P 42,042

Robert O'CONNOR, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Walter H. Clark, Robert E Paaswell, et al., Defendants-Appellees.

No. 91-3747.

United States Court of Appeals Seventh Circuit.

Argued Oct. 19, 1992.

Decided Feb. 12, 1993.

Linda Friedman and Richard C. Leng (argued), Leng, Stowell, Friedman & Vernon, Chicago, IL, for plaintiff-appellant.

Barry S. Alberts, Catherine Masters Epstein (argued), Lisa A. Weiland, Alana L. Helverson, and Hallie J. Miller, Schiff, Hardin & Waite, Chicago, IL, for defendants-appellees.

Before CUMMINGS and MANION, Circuit Judges, and KAUFMAN, Senior District Judge. ^*

MANION, Circuit Judge.

Robert O'Connor sued the Chicago Transit Authority ("CTA"), Walter B. Clark, Robert E. Paaswell, Joyce Hughes, Melvyn May, and Howard Medley (hereinafter collectively referred to as "defendants"), under 42 U.S.C. § 1983, for violating his First Amendment rights and equal protection rights. The district court granted summary judgment in favor of the defendants, finding that they were immune from liability on the First Amendment claim under the doctrine of qualified immunity, and that O'Connor necessarily failed in his equal protection claim because he did not demonstrate that he was treated differently than any other similarly situated employees. 778 F.Supp. 967. O'Connor appeals the district court's decision. We affirm.

I. Facts

In 1981, then Mayor Jane Byrne appointed Robert O'Connor, a Chicago policeman since 1962, as Manager of Labor Relations for the CTA. Harold Washington replaced Byrne as mayor in 1983. In April, 1984, O'Connor was transferred to a newly created position within the CTA--Manager of Police Liaison. In that position, O'Connor served as a liaison between the CTA and state and federal law enforcement agencies. He also assumed some responsibility over investigative activities. In the summer of 1986, Mayor Washington appointed Walter Clark to the CTA Board of Directors; in the fall of the same year the other directors elected Clark Chairman of the Board. On Mayor Washington's recommendation, the Board hired Robert Paaswell as Executive Director of the CTA on November 10, 1986. Under the CTA structure which existed at the time, O'Connor reported directly to the Executive Director.

On November 19, 1986, a CTA auditor, John Roth, notified Paaswell that Art's Transportation, a CTA contractor, was engaging in fraudulent billing and other improprieties. In a memo dated November 21, O'Connor summarized for Paaswell the status of the Art's Transportation probe, and promised to perform a full investigation. Paaswell referred information relating to Art's Transportation to the General Attorney of the CTA, and O'Connor took no further action on the matter. There is evidence that at least one CTA official was not pleased with the Art's inquiry. Roth testified in his deposition that Ernest Sawyer, a CTA official, called him into his office and criticized him for putting suspicions relating to Art's Transportation in writing. Sawyer also expressed concern that the matter might be leaked to the press.

In early 1987, O'Connor became involved in an investigation of Metropolitan Petroleum Company, a major fuel supplier to the CTA. An accountant with the internal audit department, Peter Zelkovich, had discovered improprieties in Metropolitan's billing practices. Zelkovich published his conclusions regarding these and other improprieties relating to Metropolitan in an audit report. In a portion of an internal memorandum to Zelkovich dated March 19, 1987--dealing generally with internal audit procedures--Chairman Clark criticized the procedures employed in the Metropolitan audit. Additionally, O'Connor submits as evidence Zelkovich's unsworn statement in which he alleges that Board member Medley criticized the audit.

After Paaswell's appointment, O'Connor--a white man--began to investigate independently what he describes on appeal as "unusual hiring practices" at the CTA. He sensed that the CTA was applying racial preferences in hiring; specifically, that the CTA favored blacks in employment decisions. He feared that this race-motivated hiring was done without sufficient regard for qualifications. He conducted this investigation informally, by asking general questions of CTA employees about their knowledge of recent hires. He also inquired into the adequacy of the urine tests and background checks sometimes administered to new employees. He kept this investigation secret, and did not report its existence or results to any of the defendants. On February 20, 1987, O'Connor sent a memo to Earl McGhee requesting that he provide a list of recent hires for whom background checks had been canceled. In his brief, O'Connor claims that he repeated this request when he met with McGhee on February 26.

In a letter dated February 27, 1987, Paaswell suspended O'Connor with pay for ten days, citing as the reason the need to investigate the propriety of certain decisions made by O'Connor in his position as Manager of Police Liaison. Specifically Paaswell became aware sometime in early February 1987 that O'Connor had hired several CTA employees "on a handshake" without complying with established CTA procedures. ¹ During O'Connor's suspension, Paaswell also sought to review other actions by O'Connor, including his granting of wage and vacation benefits to an employee of an independent contractor, and his use of expense accounts and petty cash. Paaswell extended O'Connor's paid suspension through March 30, 1987, and gave O'Connor an opportunity to respond to the matters being investigated.

O'Connor never responded. Instead, on March 12, 1987, O'Connor filed his original complaint in this case against Paaswell, the CTA and each member of its Board of Directors. He alleged that he was suspended because of his political affiliation with former Mayor Byrne, because of his investigations--which he claimed were protected under the First Amendment--and because of his race. On March 19, Paaswell implemented a CTA reorganization which effectively eliminated O'Connor's job by merging the Police Liaison Department with the Industrial Safety Department. ² Paaswell claims that he considered O'Connor to manage the newly created department, but instead gave the position to Melvin May, a black man, whose credentials included a Ph.D. from Northwestern University, and experience as head of security for Cook County Hospital. By a letter dated April 6, 1987, Paaswell offered O'Connor the job of Director of Investigations which was the next highest position in the newly created department. O'Connor accepted and his pay and benefits remained the same.

Soon after assuming his new position, O'Connor began complaining about the methods used by May in running the office. His treatment of May during this period is best described as insubordinate. He publicly admitted a lack of respect for May, and refused to comply with May's requests on several occasions. Significantly, in a grievance filed on June 25, 1987, O'Connor recognized that his relationship with his superiors had deteriorated to the extent that they "along with almost all of the personnel of the Police Liaison Department, ha[d] been affected adversely in [their] work." In a particularly telling incident, on June 26, May asked O'Connor to relocate his office, from the 18th floor to the 4th floor. O'Connor refused to move, and stayed on the 18th floor. His given reason for not moving was that he needed to be on the 18th floor because he was spending his days working on the document requests made in this lawsuit, and his 18th floor office was better suited for that purpose.

On September 9, Paaswell asked O'Connor as Director of Investigations to look into possible improprieties in the ordering of parts at the CTA's maintenance facilities. O'Connor characterizes this assignment as "liberation" from May. Because he was to report directly to Paaswell on this assignment, O'Connor believed he was released from the authority of May. O'Connor relied upon this "liberation" to continue to exercise insubordinate behavior; he absolutely refused to follow any of May's directives. In response to a request by May to account for the time spent on the parts investigation, O'Connor sent the memo back to May with "NO! NO!" written in large letters at the bottom. He refused to attend his performance evaluation with May. O'Connor continued to skirt May's directive to move his office to the 4th floor. In response to a November 4 memo by May directing O'Connor to move to the 4th floor, O'Connor sent May a memo in which he refused to move his office and accused May of being inept. Both Paaswell and May reminded O'Connor that he continued under May's authority under the existing CTA structure. On November 13, 1987, Paaswell fired O'Connor from his position with the CTA for gross insubordination and poor work performance.

II. District Court Proceedings

After he was terminated, O'Connor amended his complaint three times; his Third Amended Complaint, filed on January 5, 1991, made claims under 42 U.S.C. § 1983 for violation of his First Amendment right to engage in protected speech while at the CTA and for violation of his Fourteenth Amendment right to equal protection of the law. The defendants filed motions for summary judgment on the two claims remaining in the Third Amended Complaint and the district court granted those motions. O'Connor appeals, contending that the district court improperly applied the doctrine of qualified immunity and that the record at least presents questions of fact concerning the equal protection claim.

We review a district court's grant of summary judgment de novo. Prince v. Zazove, 959 F.2d 1395, 1398 (7th Cir.1992). Summary judgment is authorized if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,...