Maher v. City of Chicago

• Decision Date: 03 January 2006
• Docket Number: No. 03 C 3421.,03 C 3421.
• Parties: Jerome MAHER, Plaintiff, v. CITY OF CHICAGO, Defendant.
• Court: U.S. District Court — Northern District of Illinois

406 F.Supp.2d 1006

Jerome MAHER, Plaintiff, v. CITY OF CHICAGO, Defendant.

No. 03 C 3421.

United States District Court, N.D. Illinois, Eastern Division.

January 3, 2006.

COPYRIGHT MATERIAL OMITTED

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Robert William Fioretti, Law Offices of Robert W. Fioretti, Lonny Ben Ogus, Attorney

at Law, Thomas Michael Ryan, Johnson & Bell, Ltd., Chicago, IL, for Plaintiff.

Naomi Ann Avendano, Mara Stacy Georges, City of Chicago, Law Department Corporation Counsel, Selvyn William Fletcher, Grippo & Elden, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

COLE, United States Magistrate Judge.

I. BACKGROUND OF THE LITIGATION

This is a suit under the Veterans' Reemployment Rights Act of 1974 ("VRRA") and the Uniformed Services Employment and Reemployment Rights Act ("USERRA")(Count I) — the two federal statutes that protect the reemployment rights of veterans — and Illinois' Public Employee Armed Services Rights Act (Count II). Count I seeks to portray the plaintiff as having suffered more than a decade of calculated, consistent harassment by the defendant because of his participation in the Naval Reserves — first, in the Gulf War and later in Bosnia — all of which created a hostile work environment. (Pl.Mem in Opposition to Motion for Summary Judgment at 9).

Hostile environment claims are different in kind from discreet acts. Their very nature involves repeated conduct, and they are based on the cumulative effect of individual acts. See Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609, 615 (1st Cir. 1996)(there was a "trialworthy issue of material fact as to whether the cumulative effect of these adverse employment actions was enough `like demotion' to be actionable under VRRA"). Cf., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Lucas v. Chicago Transit Authority, 367 F.3d 714, 724 (7th Cir.2004). It is the plaintiff's further contention that following his return from the first Gulf War in 1991, he was not restored to the position of Assistant Commissioner in the City's Aviation Department, and that following his return from service in Bosnia in 1996, he was demoted. These purported demotions are the obverse side of the argument that he was improperly passed over for promotion in favor of those with lesser merit. All this occurred, Mr. Maher contends, as a consequence of his military service.

The story begins with his hiring in 1990 by the Aviation Department of the City of Chicago and chronicles his claimed mistreatment by the City over the next decade in a single, undifferentiated count, rather than in multiple counts, corresponding to what arguably could be pled as separate violations. See Rule 10(b), Federal Rules of Civil Procedure. ("Each claim founded upon a separate transaction or occurrence ... shall be stated in a separate count ... whenever a separation facilitates the clear presentation of the matters set forth"). The City, raising no objection to this mode of pleading, has moved for summary judgment on Counts I and II. At bottom, it argues that there is no genuine disputed issue of material fact on the questions of whether the plaintiff suffered an adverse employment action, was denied reemployment to his former position upon his returns from military service, or was demoted. Finally, the City argues that plaintiff is guilty of laches, requiring entry of judgment in its favor.

II.

THE STATUTORY FRAMEWORK: THE VETERANS' EMPLOYMENT RIGHTS STATUTES

The amended complaint is brought under the "Veterans' Re-Employment Rights Laws," [sic] as codified at 38 U.S.C. §§ 4301-4333.¹ (Amended Complaint, Count I). The plaintiff's citation actually encompasses two statutes, the Veterans' Reemployment Rights Act of 1974 ("VRRA") and the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). Both statutes were enacted for the purpose of prohibiting discrimination motivated by participation in military service and provide that individuals inducted into the military shall be reemployed in their former positions within a certain period of time. Bowlds v. General Motors Mfg. Div. of General Motors Corp., 411 F.3d 808, 810 (7th Cir. 2005).²

The VRRA was enacted pursuant to the Vietnam Veterans' Readjustment Assistance Act of 1974. Lapine v. Town of Wellesley, 304 F.3d 90, 93 (1st Cir.2002). Given its salutary purposes, it is to be liberally construed. Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977). It provides, in pertinent part, that "[a]ny person [employed by a state or private employer] shall not be denied... retention in employment, or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces." 38 U.S.C. § 2021(b)(3). The legislative history of § 2021(b)(3) reflects that the VRRA "was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status." Monroe v. Standard Oil Co., 452 U.S. 549, 559, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981) (Emphasis supplied). See also Diaz-Gandia, 90 F.3d at 613.

In 1991, Congress enacted USERRA pursuant to the War Powers Clause to encourage non-career military service, to minimize disruptions in the lives and communities of those who serve in the uniformed services, and to prohibit discrimination against persons because of their service in the uniformed services. 38 U.S.C. § 4301(a). See Bowlds, 411 F.3d at 810; Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840, 843-44 (7th Cir. 2005). Like the VRRA, USERRA is to be broadly construed in favor of its military beneficiaries. TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); McGuire v. UPS, 152 F.3d 673, 676 (7th Cir.1998).

Section 4311(a) of the USERRA provides in substance that a person who has performed service in the military shall not be denied initial employment, reemployment, retention in employment, or any promotion or any benefit of employment on the basis of that service. Section 4311(b) prohibits an employer from discriminating in employment or taking any adverse employment action against a person because such person has taken an action to enforce a protection accorded under the Act. USERRA also empowers the Attorney General, acting on a plaintiff's behalf, to sue where an employer has failed or refused or is about to fail or refuse to comply with the Act. 38 U.S.C. §§ 4322-23.

At least for purposes of this case, the USERRA's principal innovation is that Congress replaced the "sole cause" standard of the VRRA with a far more relaxed standard under which an employee need only show that his membership in the uniformed services "is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service." 38 U.S.C. § 4311(c)(1) (Emphasis supplied). See also id. at 4311(c)(2); Miller v. City of Indianapolis, 281 F.3d 648, 650 (7th Cir.2002).³

The USERRA applies only to causes of action that accrued "on or after the first day after the sixty-day period beginning on October 13, 1994." USERRA, Pub.L. No. 103-353 § 8(a); Bowlds, 411 F.3d at 811. Congress did not direct the courts to apply the USERRA retroactively, and the Supreme Court has held that courts should be extremely hesitant to apply a statute retroactively, where Congress has not expressly mandated such an extension. See generally, Hughes Aircraft v. United States, 520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997). Consequently, the Seventh Circuit, like its sister circuits, has held that the USERRA cannot be applied retroactively. See Bowlds, 411 F.3d at 811; Lapine, 304 F.3d at 93; Fernandez v. Dep't of the Army, 234 F.3d 553, 557 (Fed.Cir.2000); Newport v. Ford Motor Co., 91 F.3d 1164, 1167 (8th Cir. 1996).⁴

Thus, the "sole cause" standard under the VRRA applies to claims accruing before December 14, 1994, while the "a motivating factor" standard of the USERRA applies to claims accruing thereafter. Since the amended complaint claims spans the period from February 1991 through March 1998, some claims fall under VRRA, and some fall under USERRA.

III.

SUMMARY JUDGMENT PRINCIPLES AND "SELF-SERVING" EVIDENCE

A. General Principles

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are facts that "might affect the outcome of the suit" under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bowlds, 411 F.3d at 810. A dispute over material facts is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Ballance v. City of Springfield, Illinois Police Dept., 424 F.3d 614 (7th Cir.2005).

The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. But there is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 324, 106 S.Ct. 2548. The burden on the moving party may be discharged by showing — that is,...