Gorman v. Robinson

• Decision Date: 09 October 1992
• Docket Number: No. 91-2157,91-2157
• Citation: 977 F.2d 350
• Parties: Michael M. GORMAN, Plaintiff-Appellee, v. Renault ROBINSON, George C. Cramer, and William T. Salem, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 350

977 F.2d 350

Michael M. GORMAN, Plaintiff-Appellee, v. Renault ROBINSON, George C. Cramer, and William T. Salem Defendants-Appellants.

No. 91-2157.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1992.

Decided Oct. 9, 1992.

Edward R. Theobald (argued), Russell J. Luchtenburg, Chicago, Ill., for plaintiff-appellee.

Phillip H. Snelling, ACC (argued), Johnson, Schaaf, Jones & Snelling, Thomas E. Johnson, Anthony J. Fusco, Jr., Wilbert U. Allen, F. Willis Caruso, Marilyn T. Kuhr, Chicago Housing Authority, Chicago, Ill., for defendants-appellants.

Before CUDAHY, POSNER and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Plaintiff Michael Gorman brought this civil rights lawsuit against the defendants after they discharged him from his position at the Chicago Housing Authority ("CHA"). Gorman had worked at the CHA from 1965 until his discharge in 1986 and for most of that time he had acted as the CHA's Assistant Purchasing Agent. Gorman's complaint against the defendants alleges that they violated his rights of freedom of speech and due process by discharging him for his cooperation with FBI investigations of employee corruption at the CHA. The defendants have maintained that they discharged Gorman because he was not performing his job satisfactorily.

In a motion for summary judgment, the defendants argued that the doctrine of qualified immunity shielded them from suit. They argued that they could not have reasonably known in 1986 that Gorman's communications with the FBI were protected by the First Amendment and that a review of the undisputed facts would demonstrate that Gorman was discharged because of his poor performance. As for Gorman's due process claim, the defendants maintained that Gorman could not demonstrate a property interest in his position or that he received constitutionally deficient process upon termination. The district court denied the defendants' motion for summary judgment because it concluded that there were genuine issues of material fact, which would require a trial. The defendants then brought this interlocutory appeal pursuant to 28 U.S.C. § 1291 in which they renew their arguments that they are entitled to qualified immunity. Before we address their arguments, we will briefly review the facts.

I.

In 1965, the CHA hired Gorman as a civil engineer. By 1968, Gorman had been promoted to Assistant Purchasing Agent, a position in which he served until 1983 when his superior became ill and he became the Acting Purchasing Agent. At that time, he reported directly to Andrew Mooney, the CHA's Executive Director and a member of the CHA Board. In 1984, Zirl Smith replaced Mooney as CHA's Executive Director.

In 1982, the FBI began investigating substantial thefts of CHA property and was considering the possibility that CHA employees were responsible. Gorman, whose brother was an FBI agent, assisted the investigation by informing the FBI of unusual ordering patterns of paint and tiles from the CHA's Central Maintenance Department. Gorman also claims that he informed FBI agents that certain CHA employees were receiving kickbacks. In 1985, Gorman testified as a witness for the United States in a criminal trial concerning the thefts which resulted in the conviction of several CHA employees. Gorman claims that he continued to assist the FBI investigation until 1986.

In 1984, Gorman began having problems with his superiors. He alleges that defendant Renault Robinson, who was then the Chairman of the CHA Board, began to encourage Smith, the CHA's Executive Director, to fire him. For the first time in his career, Gorman also began to receive unsatisfactory evaluations concerning his work performance. Prior to that time all of his evaluations had been satisfactory. ¹

At Robinson's direction, the CHA in 1984 had created a new position entitled Deputy Executive Director for Finance and Administration which was to supervise the Purchasing Department. Robinson appointed defendant George Cramer to serve in this position and Cramer was to report directly to Robinson.

In 1985, the CHA changed the name of the Purchasing Department to Procurement and Inventory Control. Although Gorman's title changed from Acting Purchasing Agent to Acting Director of Procurement and Inventory Control, his job duties and responsibilities remained the same. In September, Gorman received a satisfactory performance evaluation and a pay increase. Gorman alleges that despite the positive review Robinson continued to encourage Smith to fire him.

In April 1986, the CHA began seeking applicants for the position of Director of Procurement and Inventory Control. Cramer had amended the job description of that position to include a preference for an MBA or CPA degree. Gorman, who had neither degree, applied for the position but was not interviewed. Instead, the CHA hired defendant William Salem and Gorman remained in the position of Assistant Director.

Gorman alleges that after Salem assumed the Director's position, Salem asked him about his cooperation with the FBI. Gorman told Salem that he had assisted the FBI in its investigation of CHA corruption, but he also informed Salem he was not at liberty to discuss the nature and status of the investigation.

Shortly after his meeting with Salem, Gorman began receiving memos from Salem which questioned the quality of his work. Salem also met with Gorman to discuss the alleged problems with Gorman's work. Salem eventually placed Gorman on probationary status.

On December 1, 1986, CHA Executive Director Smith requested that Gorman be transferred to his department. Smith hoped to assign Gorman to the new position of Contract Administrator in the Executive Director's Office. In this capacity, Gorman was to oversee contract procedures as well as to act as a liaison with the FBI.

That same day, Defendants Salem and Cramer prepared a memo critical of Gorman's job performance and ordered his immediate suspension pending termination. Accordingly, they did not transfer Gorman to the office of the Executive Director. On December 2, 1986, Salem called Gorman into his office, read him a memo which stated that he had been suspended pending final action. At this meeting, the CHA's Director of Human Resources told Gorman that he had a right to a hearing within 10 days if he so requested, at which time he could respond to the suspension before he was terminated.

Smith was not pleased with Cramer and Salem. On December 2, 1986, Smith wrote to Cramer and demanded that Cramer explain why Gorman had been suspended. Smith labeled Cramer's actions as "capricious and punitive." Cramer did not respond.

On December 10, Gorman requested a pre-termination hearing concerning his suspension. Thirteen days later, Gorman received a formal termination notice which advised him that he could contact the CHA's Director of Human Resources to schedule a date on which he could review his personnel file and set a date for his termination hearing. No hearing was ever held.

II.

The doctrine of qualified immunity shields government officials performing discretionary functions from liability for civil damages. Conner v. Reinhard, 847 F.2d 384, 387 (7th Cir.), cert. denied, 488 U.S. 856, 109 S.Ct. 147, 102 L.Ed.2d 118 (1988). That doctrine is based upon the recognition that permitting damage suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Conner, 847 F.2d at 387. However, courts have also recognized that an action for damages may provide a citizen with his only means of vindication when an official has violated his constitutional rights. Conner, 47 F.2d at 387. As a result, it is well settled that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

To determine whether the constitutional right alleged to have been violated was clearly established, "it must be identified in a particularized sense with respect to the circumstances of the alleged violation." Warlick v. Cross, 969 F.2d 303, 309 (7th Cir.1992); Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3039. As the Supreme Court in Anderson admonished:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.

Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (citation omitted) (emphasis added); see also Conner, 847 F.2d at 388. Again, we inquire " 'whether the law was clear in relation to the specific facts confronting the public official when [he or she] acted.' " Warlick, 969 F.2d at 309 (quoting Green v. Carlson, 826 F.2d 647, 649 (7th Cir.1987)).

The Supreme Court has made clear that qualified immunity is an immunity from suit rather than a defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 529, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). In Mitchell, the court held that "a district court's denial of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291." Id. at 530, 105 S.Ct. at 2817 (emphasis added).

We review the district court's denial of summary judgment de novo to determine whether we can decide each immunity question without resolving any disputed question of fact. Hansen v. Bennett, 948 F.2d 397, 399 (7th Cir.1991), ...