Franklin v. City of Evanston, 03-2127.

• Decision Date: 27 September 2004
• Docket Number: No. 03-2127.,03-2127.
• Citation: 384 F.3d 838
• Parties: Edward FRANKLIN, Plaintiff-Appellant, v. CITY OF EVANSTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

384 F.3d 838

Edward FRANKLIN, Plaintiff-Appellant, v. CITY OF EVANSTON, Defendant-Appellee.

No. 03-2127.

United States Court of Appeals, Seventh Circuit.

Argued February 19, 2004.

Decided September 27, 2004.

Appeal from the United States District Court for the Northern District of Illinois, Joan Humphrey Lefkow, J.

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Annemarie E. Kill (Argued), Avery Camerlingo Kill, Chicago, IL, for Plaintiff-Appellant.

Jack M. Siegel, Iain D. Johnson (Argued), Holland & Knight, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, POSNER and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

Edward Franklin, an employee of the City of Evanston (the City), was arrested for possession of a small amount of marijuana. Learning of Franklin's arrest in the local paper, the City instituted disciplinary proceedings against him while his criminal case was pending. Franklin unsuccessfully requested that the disciplinary proceedings be continued for a few months until his criminal case was resolved. The City pressed ahead with its disciplinary hearings, questioning Franklin about the criminal charge without warning him, as we have long held to be required by due process considerations, that he would be granted immunity from prosecution based on his answers and that a failure to answer would therefore be viewed negatively. At oral argument, the City admitted that its failure to provide Franklin with the required warnings was pursuant to its policy based on an extremely narrow interpretation of our case law, under which warnings would be required only if the City explicitly required an employee to answer questions on pain of losing his or her employment. However, because the City's admitted policy effectively does not allow employees in Franklin's situation an opportunity to tell their side of the story without penalty, we find that the City violated Franklin's right to procedural due process under 42 U.S.C. § 1983. For the reasons set out in this opinion, the district court's grant of summary judgment to the City on this issue is therefore reversed.

I.

From 1975 until December 17, 1997, Franklin, an African-American, worked for the Division of Streets and Sanitation of the Public Works Department of the City of Evanston. At the time of his termination, Franklin was employed by the City as a Driver/Loader. On November 7, 1997, while off-duty, Franklin was arrested by Evanston police and charged with possession of a small amount of cannabis (marijuana), a misdemeanor offense. The EVANSTON REVIEW, a local paper, published his arrest in its "The Police Blotter" section, where it came to the attention of one of Franklin's coworkers. The coworker showed the article to Franklin's immediate supervisor, Zeltee Edwards, the Superintendent of the Division of Streets and Sanitation. Edwards confirmed with the Evanston Police Department that Franklin had been arrested.

On November 13, 1997, Edwards brought Franklin into a brief meeting to discuss the charges. When asked to respond to the allegations, Franklin refused, stating that he could not say anything because he was facing a criminal charge. Franklin indicated that the information in the police report and the newspaper was all he knew. (R. 34, ex. 7.) The City suspended Franklin without pay, pending an investigation.

On November 26, 1997, a "due cause" meeting was held to determine the maximum level of discipline Franklin could receive. Franklin was not present at this meeting. Judith Witt, the Director of Human Resources for the City, was on the committee that authorized Franklin's termination, though the final decision as to what level of discipline to impose was left up to Edwards. The authorization to terminate Franklin was based on Franklin's alleged violation of the 1989 Work Rules imposed by the 1995 Collective Bargaining Agreement (CBA) between the City and the union of which Franklin was a member.¹

Under the Evanston City Code, after a due cause meeting, an employee is entitled to a pre-disciplinary meeting, to which he may be accompanied by a union representative. On December 12, 1997, the City held such a meeting with Franklin and his union representative. Franklin was again asked at this meeting to respond to the criminal charge pending against him. He neither admitted nor denied possessing the marijuana because he did not want to jeopardize his criminal defense. Instead, he requested postponement of the meeting until after his criminal case — which had been continued to February 5, 1998 — was resolved. The City denied his request, and Edwards decided that Franklin should be terminated. On December 17, 1997, Franklin's employment with the City was terminated for violating the 1989 version of Work Rule 23.1(e), which prohibited the possession of illegal drugs.

Franklin was the first City employee to be discharged for a violation of Rule 23.1(e). (R.34, ex. 9.) He points to a Caucasian employee, Timothy Hartigan, who had been arrested for driving under the influence (DUI) in 1996 but was not discharged. However, the City notes that three African-American employees were also subsequently arrested for DUI and were not discharged.

Franklin's union filed an official grievance on his behalf and presented it to the City on December 31, 1997. (R. 34, ex. 13.) At a January 26, 1998 hearing, the union argued that the City should have waited until after Franklin's criminal charges had been resolved before disciplining him. Franklin's grievance was denied based on the City's determination that his refusal to respond to the criminal charges and his alleged admission to police that he had possessed the marijuana validated the termination.² On February 5, 1998, Franklin's criminal case was nolle prossed, and the criminal charge against him was dismissed.

Franklin filed suit against the City, seeking damages for the violation of his rights under 42 U.S.C. § 1983 and § 1981. Both parties subsequently filed cross motions for summary judgment. On November 20, 2002, the district court, relying on our decision in Atwell v. Lisle Park Dist., 286 F.3d 987 (7th Cir.2002), granted summary judgment to Franklin on his § 1983 claim for violation of his right to procedural due process. The district court found that the City had failed to give Franklin a meaningful opportunity to respond in the disciplinary proceedings since criminal charges were pending and Franklin was compelled to respond (by the fear of losing his job) without any guarantee of immunity. (11/20/02 Order.) Although the district court determined that the City had no express policy of requiring an employee to forego his Fifth Amendment rights on pain of losing his job, it found that Witt was a final policymaker who had the authority to set policy for Evanston on issues regarding drug and alcohol use and terminations and who ratified the decision to terminate Franklin, concluding that the City was therefore liable under § 1983. However, the district court granted the City's motion for summary judgment on the other two aspects of Franklin's § 1983 claim, which were based on deprivation of liberty arising from a state statute and on deprivation of equal protection due to the alleged disparate impact of using arrest records in terminating employees. The district court also granted the City's motion for summary judgment as to Franklin's § 1981 disparate treatment and disparate impact claims.

The City subsequently filed a motion to reconsider, arguing that Atwell should not apply retroactively and that Witt was not a final policymaker, so the City should not be held liable even if Franklin's rights were violated. (Mot. to Reconsider, R. 47.) On March 31, 2003, the district court reversed its grant of summary judgment to Franklin on his § 1983 procedural due process claim and instead granted summary judgment to the City, accepting the City's "long overdue" fleshing out of its argument that Witt was not a final policymaker. (3/31/03 Order). Franklin now appeals the district court's grant of the City's motion to reconsider as well as the district court's grant of summary judgment against him on all of his § 1983 and § 1981 claims.

II.

We review the district court's grant of summary judgment de novo. Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir.2001). This standard applies when cross motions for summary judgment are filed. Metro. Life Ins. Co. v. Smith, 297 F.3d 558, 561 (7th Cir.2002). To succeed on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In making this determination, "we draw all reasonable inferences from the evidence in the light most favorable to the nonmoving party." Williamson v. Ind. Univ., 345 F.3d 459, 462 (7th Cir.2003).

A.

A municipality is liable under § 1983 when a deprivation of constitutional rights is caused by a municipal policy or custom. Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Such liability may be demonstrated in three ways: (1) by an express policy that, when enforced, causes a constitutional deprivation; (2) by a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law; or (3) by a showing that the constitutional injury was caused by a person with final policymaking authority. Baskin v. City of Des Plaines, 138 F.3d 701, 704-05 (7th Cir.1998).

Franklin argued to the district court that the City violated § 1983 for four reasons: (1) it denied him procedural due process; (2) it violated his liberty interest in his reputation; (3) it violated a liberty interest arising from Illinois state law; and (4) it denied him equal protection of the laws because Evanston's...