Delapaz v. Richardson

• Decision Date: 14 February 2011
• Docket Number: No. 10–1215.,10–1215.
• Citation: 634 F.3d 895
• Parties: Pablo DELAPAZ and Michael Sarkauskas, Plaintiffs–Appellants,v.Robert RICHARDSON, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

634 F.3d 895
94 Empl. Prac. Dec. P 44,112
31 IER Cases 1560

Pablo DELAPAZ and Michael Sarkauskas, Plaintiffs–Appellants,
v.
Robert RICHARDSON, Defendant–Appellee.

No. 10–1215.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 2010.Decided Feb. 14, 2011.

[634 F.3d 897]

Mitchell A. Kline (argued), Attorney, Chicago, IL, for Plaintiffs–Appellants.J. Mark Powell (argued), Attorney, City of Chicago Law Department, Chicago, IL, for Defendant–Appellee.Before FLAUM and EVANS, Circuit Judges, and McCUSKEY, District Judge. ^*FLAUM, Circuit Judge.

Appellants Pablo Delapaz and Michael Sarkauskas work for the City of Chicago's Department of Streets and Sanitation (“DSS”). Under DSS Commissioner Al Sanchez, Delapaz and Sarkauskas were temporarily assigned to “act up”—meaning to work above their titled position for additional pay. Shortly after Michael Picardi replaced Sanchez as DSS Commissioner, appellee Robert Richardson (the Deputy Commissioner of the Bureau of Street Operations) informed Delapaz that he was being returned to his titled position. Richardson told Delapaz to inform Sarkauskas that he too would be returned to his titled position. Appellants contend that Richardson demoted them because of their political affiliation with the Hispanic Democratic Organization (“HDO”), while Richardson maintains that he simply was carrying out Picardi's directive that all acting employees be returned to their permanent positions.

Delapaz and Sarkauskas brought this suit against Richardson (and others, who we need not consider in this appeal) under 42 U.S.C. § 1983. The suit charges that Richardson violated their First Amendment right to free association by demoting them on the basis of their political affiliation. The district court granted summary judgment in favor of Richardson; Delapaz and Sarkauskas appealed.

For the reasons set forth below, we affirm.

I. Background

Appellants both are long-time City employees. Delapaz has been employed by the City since 1984, and has held the position of foreman of motor truck drivers in the DSS since 1998. Sarkauskas began working for DSS as a motor truck driver (“MTD”) in 1979. Both Delapaz and Sarkauskas have volunteered for the HDO. Delapaz has done so since 1996 or 1997, Sarkauskas, since 2001.

At times, the City assigns current employees to fill open positions above their official titled positions for a limited time. For example, an MTD might be assigned

[634 F.3d 898]

to be an acting foreman of MTDs. That practice is known as “acting up.” In 2001, then-DSS Commissioner Sanchez assigned Sarkauskas to be an acting foreman in the Bureau of Sanitation, one of seven bureaus within the DSS. In 2002, Sanchez made Delapaz acting General Foreman of the Bureau of Street Operations, another DSS bureau. Later, Sanchez transferred Sarkauskas to the Bureau of Street Operations, where he worked directly under Delapaz as an acting foreman.

In June 2005, Picardi became DSS Commissioner, and Richardson was named Deputy Commissioner of the Bureau of Street Operations. Picardi testified that, as DSS Commissioner, he had the authority to assign employees to “act up” in title and to return employees from acting positions to their titled positions. According to Picardi, shortly after he became Commissioner, he ordered all acting employees returned to their permanent positions because of “budgetary and operational necessity.” Richardson testified that in June 2005 Picardi directed him to inform all Bureau of Street Operations employees who were acting up that they would be returned to their titled positions. Picardi testified that he made an exception to that sweeping order for purposes of snow removal, authorizing Richardson to assign MTDs and MTD foremen to “act up” as necessary to clear snow. Picardi further testified that he delegated his authority regarding “acting up” decisions to the Deputy Commissioners, including Richardson.

In the summer of 2005, Richardson told Delapaz he would no longer be acting up, and would return to his position as MTD foreman. According to Delapaz, during that conversation Richardson said, “You know, Pablo, you are no longer the General Foreman. As a matter of fact, you are in charge of nothing, and your guy is gone.” Delapaz testified that he did not know whether Richardson was aware that he volunteered for the HDO, and that Richardson did not indicate who he meant by “your guy.” Two weeks later, at Richardson's direction, Delapaz informed Sarkauskas that he would no longer be an acting foreman. Sarkauskas testified that all ten of the acting MTD foremen in the Bureau of Street Operations were returned to their titled positions as MTDs at that time. Sarkauskas further testified that not all of those individuals were affiliated with the HDO.

The following fall, Richardson assigned Rodney Sernek to act as a general foreman during the hours needed for snow removal only. Sernek had made contributions to and done campaign work for Alderman Richard Mell, despite the fact that he did not live in the Alderman's ward. Delapaz contends that Sernek “replaced” him as quid pro quo for Sernek's support of Mell. Sarkauskas testified that after he was returned to his titled position, Daniel Gasdziak was made an acting foreman, and that Gasdziak held that position for a year and a half. According to Richardson, he did not assign Gasdziak to act up...