Contreras v. City of Chicago
| Decision Date | 29 March 1996 |
| Docket Number | No. 94 C 4201.,94 C 4201. |
| Parties | Raul CONTRERAS, Antonio Contreras, Amalia J. Gloria, Arlene Martinez, Helen's Pizza, d/b/a Como's Pizza, and Dave Clark, Plaintiffs, v. CITY OF CHICAGO, a municipal corporation, Carolyn Shoenberger, both individually and as Commissioner of the City of Chicago's Department of Consumer Services, Eugene Schulter, both individually and as Alderman of the 47th Ward, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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Michael Edward Lavelle, Lavelle, Juneau & McCollom, Ltd., Oak Park, IL and Kevin E. Bry, Oak Park, IL, for plaintiffs.
Diane M. Pezanoski, Mary Beth Snyder, City of Chicago, Law Department Corporation Counsel, Michael A. Forti, City of Chicago Law Department, Susan S. Sher, Corporation Counsel, City of Chicago, and Kenneth L. Schmetterer, Assistant Corporation Counsel, Litigation Division, Chicago, IL, for defendants.
On May 23, 1994, Como's Pizza, a restaurant located at 1742 W. Wilson Avenue in the City of Chicago, was temporarily shut down for approximately three days after sanitarians from the City of Chicago's Department of Consumer Services issued citations to Como's for (1) unsanitary equipment, (2) improper pest control, (3) unsanitary interiors, (4) inadequate temperature of raw meat, and (5) having no food sanitarian certificate on the premises. The inspection by the city sanitarians followed a meeting called by defendant Alderman Eugene Schulter and attended by, among others, defendant Carolyn Shoenberger, the City's Commissioner of the Department of Consumer Services, after Schulter's office had received numerous complaints about Como's by area residents. Plaintiff Helen's Pizza Inc. d/b/a Como's Pizza, joined by Como's principal owner and manager Dave Clark and several of Como's employees, now bring this federal civil rights lawsuit against the City of Chicago, Alderman Schulter, and Commissioner Shoenberger, alleging that the inspection and shutdown of Como's was racially motivated and that the defendants violated the City's Municipal Code when sanitarians from the Department of Consumer Services rather than the Department of Health inspected and shut down the restaurant. The plaintiffs allege that defendants have infringed their rights under the First, Fourth, and Fourteenth Amendments and they seek money damages as well as injunctive and declaratory relief. Defendants Schulter and Shoenberger are sued in both their official and individual capacities.1 Defendants' motion for summary judgment on all counts is presently before the Court, as is plaintiffs' motion for partial summary judgment as to (1) whether defendant Schulter may invoke the affirmative defense of absolute legislative immunity, and (2) whether the City violated the Municipal Code by using sanitarians from the Department of Consumer Services rather than the Department of Health to inspect and shut down Como's.
Como's is a carry-out restaurant that has been operating since 1988 in Chicago's Ravenswood neighborhood, which, in relevant part, is within defendant Schulter's aldermanic ward. Plaintiff Dave Clark is the sole owner of Como's, which has employed numerous people over the years including plaintiffs Amalia Gloria, Antonio and Raul Contreras, and Arlene Martinez. (Defs.' Facts ¶ 9; Pls.' Add'l Facts ¶ 1). Como's business included a combination of walk-in customers, phone-order deliveries, and sales to mobile food trucks (such as the "Thunderbird" trucks). (Pls.' Add'l Facts ¶ 4). Como's has sought to involve itself in the community over the years by sponsoring a Little League baseball team, and donating food to a school's spaghetti dinner. (Id. ¶ 45).
Across the street from Como's Pizza live Suzanne and Victoria Khamis, who have resided in their present home for at least 8 to 10 years and who have lived in the immediate neighborhood for approximately 20 years. (Pls.' Add'l Facts ¶ 11; V. Khamis Dep. at 2-3; S. Khamis Dep. at 19-20). For about the last 9 or 10 years, Victoria Khamis has been the president of a community organization called UPRAVE which was founded 18 to 20 years ago by members of the Khamis family. Victoria Khamis testified that at any given time, UPRAVE has about 50 to 100 active members. It calls a general meeting every year and also holds numerous special meetings (sometimes more than once per week) to discuss discrete issues. (Pls.' Add'l Facts ¶ 14). According to Victoria Khamis UPRAVE's motto is "a good neighbor is a nosy neighbor," and the organization performs a variety of activities, including going to housing and juvenile court, supervising juveniles who are performing court-ordered community service, being concerned with police matters and other neighborhood problems, neutering and placing animals, taking people to medical appointments, or "whatever a good neighbor does." (V. Khamis Dep. at 29-32; Pls.' Add'l Facts ¶ 15).
Fueling plaintiffs' complaint are charges that the Khamis sisters harbored discriminatory animus against Mexicans. Plaintiff Amalia Gloria testified that she once had a conversation with Suzanne Khamis in which Khamis stated that there was "so much garbage outside all the time because these Mexican people over here are so dirty, they keep everything dirty, because they're so dirty."2 (Gloria 5/17 Dep. at 40). When Gloria informed Suzanne Khamis that she was Mexican, Khamis stated that Gloria was different because she was born in this country. (Id.) On another occasion, Suzanne Khamis complained to Gloria about Como's failure to leave a night light on and in the context of that conversation Khamis stated that "some Mexican guy" had defecated in the alley. (Id. at 44). With respect to Suzanne Khamis' reference to the individual as a "Mexican guy," Gloria noted "she was always referring like that when we spoke." (Id.; see also Gloria 6/2 Dep. at 5, commenting "She had a mouth for that."). Plaintiff Arlene Martinez testified that a woman who lived in the corner house at Wilson and Hermitage (presumably the Khamis residence) used to complain — with reference to the Como's employees standing outside the store — about the "Latinos out there, that we were gangbangers." (Martinez Dep. at 47). As further evidence of the Khamises' discriminatory animus, plaintiffs offer the deposition testimony of Maria Tranculov, who worked at the apartment complex directly next door to Como's at 4606 N. Hermitage. Tranculov testified that a few years ago she attended a meeting at a church on the next block during which the 4606 N. Hermitage building was discussed as was Como's. Tranculov testified that Victoria Khamis spoke at the meeting. She then testified as follows:
(Tranculov Dep. at 32-34). Gary Kass, owner of the apartment building in which Tranculov worked, testified that based upon his experiences with the alderman's office and the Khamises concerning their complaints about the building and tenants, Como's Pizza, and the tenants of other buildings, it was his opinion that "to a degree" the complaints involved racial stereotyping. (Kass Dep. at 97-98). Tranculov also testified that one of the Khamis sisters (its not clear from the testimony which one) complained about conduct by minority residents that had not been complained about when done by a white resident. (Tranculov Dep. at 43-44). Also, Tranculov testified that Khamis once told her that "all of them look the same" referring to Hispanics. (Id. at 44).
Paul Flynn, a manager at Como's in 1990 or 1991, stated that in late summer or fall of the year (which year is unclear from the record) he attended a meeting at the Zephyr restaurant, which was owned by Byron Kouris, who also owned Como's building. Present at the meeting were Flynn, Kouris, Susan Khamis, Sonja Aghakan, and Schulter. (Flynn Decl. ¶¶ 3-4). Flynn further stated that:
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