Gbur v. City of Harvey, Ill.

Decision Date09 March 2012
Docket NumberNo. 07 C 1923.,07 C 1923.
Citation835 F.Supp.2d 600
PartiesAlex GBUR, Plaintiff, v. CITY OF HARVEY, ILLINOIS, an Illinois municipal corporation, Eric Kellogg, individually and in his official capacity as mayor, Andrew Joshua, individually and in his official capacity as chief of police, Defendants.
CourtU.S. District Court — Northern District of Illinois


Thomas Steven Radja, Jr., Collins & Radja, Hoffman Estates, IL, for Plaintiff.

Julie Ann Hofherr Bruch, Jane Marie May, Benjamin Matthew Jacobi, O'Halloran, Kosoff, Helander & Geitner, P.C., Northbrook, IL, for Defendants.


JEFFREY COLE, United States Magistrate Judge.

Alex Gbur, a white male, was a policeman for the south suburban City of Harvey, beginning in 2001. In April 2003, Harvey elected an African–American mayor—the previous mayor had been white—and Mr. Gbur feels it was no coincidence that his career took a turn for the worse around that time. He was disciplined on a number of occasions, and his employment was finally terminated on March 21, 2007. He filed this lawsuit against the City of Harvey, Mayor Eric Kellogg, and the police chief, Andrew Joshua, who is also African–American and was appointed to his position by the mayor shortly after the election.

Under Count I of his second amended complaint, Mr. Gbur charges the defendants with “race discrimination in violation of Title VII.” Mr. Gbur alleges that he was suspended without pay and subsequently discharged because he is white, while similarly situated African–American officers were treated more favorably when they committed similar or more severe misconduct. ( Second Amended Complaint, ¶¶ 13–21). Mr. Gbur also claims the defendants: terminated white officers from their employment; rehired African–American police officers who had been discharged or resigned in lieu of discharge for disciplinary reasons; demoted white officers and promoted less qualified African–American officers in their place; disciplined white officers more harshly than African–American officers; and permitted a hostile work environment that subjected white officers to racial epithets and unsafe work assignments. ( Second Amended Complaint, ¶ 21).1

Mr. Gbur charges that defendants with First Amendment violations pursuant to 42 U.S.C. § 1983.” He says that when he filed a charge of discrimination with the Equal Employment Opportunity Commission in March 2006, he was treated differently and suffered adverse job actions. ( Second Amended Complaint, ¶¶ 28–29).

He also claims that when he testified regarding his experiences during a Department of Justice investigation into charges of discrimination in Harvey's police department, he suffered retaliation in the form of threats of termination, denial of vacation days, provision of unsafe equipment, and unsafe work assignments. ( Second Amended Complaint, ¶¶ 30–33).

Mr. Gbur adds that, after he supported a rival candidate for mayor against defendant Eric Kellogg, the incumbent, he suffered retaliation, including: threats of termination, denial of vacation days, provision of unsafe equipment, and unsafe work assignments, termination, and not being invited to union meetings with the mayor. ( Second Amended Complaint, ¶¶ 34–35). He also claims to have been shot at in an attempted homicide by a relative of Mayor Kellogg, who was later apprehended by the Illinois State Police. ( Second Amended Complaint, ¶¶ 36–38). Mr. Gbur states that the mayor and the chief of police are policymakers for the City of Harvey, and that it is a custom and practice of the city to retaliate against those who publicly express opposition to the city regarding matters of public concern.

The defendants have moved for summary judgment. They argue that this court does not have jurisdiction over Mr. Gbur's Title VII and § 1983 claims pursuant to the RookerFeldman doctrine because he challenged his termination in state court proceedings. ( Defendants' Memorandum, at 3–4). They also argue that, for the same reason, res judicata precludes Mr. Gbur's claims of discrimination and retaliation regarding his suspension and subsequent termination, and the investigation into his conduct that precipitated his suspension and termination. ( Defendants' Memorandum, at 4–8). The defendants also contend that Mr. Gbur failed to exhaust his administration remedies as to his claims that he was subjected to a hostile work environment and the discriminatory rehiring of terminated African–American police officers. ( Defendants' Memorandum, at 2–3). In addition, they contend that Mr. Gbur cannot show that his termination was discriminatory, ( Defendants' Memorandum, at 8–14), that Mr. Gbur has no cognizable First Amendment claim, ( Id., at 15–18), and that he cannot establish a claim against the city under Monell. ( Id., at 18).

A.Summary Judgment

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed.R.Civ.P. 56(c); Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Once the moving party has made a properly supported motion for summary judgment, the “opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B.Local Rule 56.1

As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. Local Rule 56.1 requires a party seeking summary judgment to include with its motion “a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law.” Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). Each paragraph must refer to the “affidavits, parts of the record, and other supporting materials” that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir.2005) The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both “a response to each numbered paragraph in the moving party's statement,” Local Rule 56.1(b)(3)(B), and a separate statement “consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment,” Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.2009); Bay Area Business Council, Inc., 423 F.3d at 633.

If the moving party fails to comply with the rule, the motion can be denied without further consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n. 1 (7th Cir.2003). If the responding parting fails to comply, its additional facts may be ignored, and the properly supported facts asserted in the moving party's submission are deemed admitted. Local Rule 56.1(b)(3)(C); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir.2008); Cracco, 559 F.3d at 632;Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006). District courts are ‘entitled to expect strict compliance’ with Rule 56.1, and do not abuse their discretion when they opt to disregard facts presented in a manner that does follow the rule's instructions Cracco, 559 F.3d at 632;Ciomber, 527 F.3d at 643;Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). The court is not required to hunt for evidence in the record that supports a party's case if a party fails to point it out; that is counsel's task. See Bay Area Business Council., 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission).

The defendants have pointed out what they perceive as problems with some of the evidence Mr. Gbur has cited to in support of his Local Rule 56.1 facts. The evidence a party relies upon to stave off summary judgment must be admissible evidence. Sow v. Fortville Police Dept., 636 F.3d 293, 301 (7th Cir.2011); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009); Galdikas v. Fagan, 342 F.3d 684, 695 (7th Cir.2003) (parties cannot rely on inadmissible hearsay in summary judgment opinions). A fair portion of Mr. Gbur's evidence is not. There is hearsay—newspaper articles, bits of testimony, and affidavits, for example—that Mr. Gbur has improperly relied upon to prove the truth of the matters asserted. SeeFed.R.Evid. 801(c); Chi. Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 654 (7th Cir.2001) (“The evidence consists of a newspaper article, which is inadmissible hearsay ...”); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.1997) (newspaper article inadmissible hearsay in summary judgment proceedings). And there is some unauthenticated evidence, such as a police manual, disciplinary reports, and a collective bargaining agreement. SeeFed.R.Evid. 901; Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir.2006); Scott v. Edinburg, 346 F.3d 752, 760 n. 7 (7th Cir.2003); Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.2001). These problems are addressed, as necessary, throughout this opinion.


Mr. Gbur began his career as a patrol officer in September of 2001. ( Defendants' ...

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