Marshall v. Allen

Decision Date25 February 1993
Docket NumberNo. 91-1933,91-1933
Citation984 F.2d 787
Parties60 Fair Empl.Prac.Cas. (BNA) 1106, 60 Empl. Prac. Dec. P 42,051, 8 IER Cases 338 Cornelius MARSHALL, Plaintiff-Appellee, v. Wilbert ALLEN, Richard Anderson, and Anthony J. Fusco, Jr., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Mary Stowell, Linda Friedman (argued), Richard C. Leng, Leng, Stowell, Friedman & Vernon, Chicago, IL, for plaintiff-appellee.

Thomas E. Johnson, Phillip H. Snelling, Asst. Corp. Counsel (argued), Johnson, Jones & Snelling, Chicago, IL, for defendants-appellants.

Before FLAUM and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

This case presents an interlocutory appeal from the district court's order denying summary judgment on a claim of qualified immunity. This court has jurisdiction to hear this claim under Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), which 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 (1988). Accord Gorman v. Robinson, 977 F.2d 350, 354-55 (7th Cir.1992); Elliott v. Thomas, 937 F.2d 338, 340-41 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 973, 117 L.Ed.2d 138 (1992). The district court concluded that genuine issues of material fact existed as to whether the defendants--the Chicago Housing Authority (CHA) and three supervisory attorneys in its Legal Department, Wilbert Allen, Richard Anderson, and Anthony Fusco--fired Cornelius Marshall from his job as an attorney in retaliation for actions that were protected by the First Amendment. 1 The court also held that, when Mr. Marshall was discharged in June 1988, the law was sufficiently clear to establish that the defendants' alleged conduct violated Mr. Marshall's First Amendment rights. Consequently, the district court denied defendants' claim that they were entitled to qualified immunity. Messrs. Allen, Anderson, and Fusco appeal and, for the following reasons, we affirm.

I BACKGROUND
A. Facts

The parties rigorously dispute many of the facts in this case. However, the sole issue before this court is whether the defendants are entitled to summary judgment on the issue of qualified immunity. As will be discussed more fully below, our review is limited to this question. Consequently, many of the factual disputes that the parties raise are immaterial to the resolution of this issue and need not be addressed by this court. 2 A brief summary follows of From April 1983 until his discharge in June 1988, Cornelius Marshall was an attorney in the CHA's Legal Department. In June 1988, defendant Wilbert Allen was the CHA's Acting General Counsel; Anthony Fusco served as Deputy General Counsel for Contracts and Complex Litigation; and Richard Anderson was Acting First Deputy General Counsel. These are supervisory positions in the department's organizational scheme.

the facts relevant to the defendants' claim of qualified immunity.

In 1986, four women attorneys, Countess Cary, Irene Lyons, Ann Breen Greco, and Sue Ann Rosen, began to voice complaints about unequal pay and working conditions in the Legal Department. In February 1987, these women (known collectively as "the Cary plaintiffs") filed charges with the EEOC. They alleged that the CHA, James Thomas (then the CHA's General Counsel), and Wilbert Allen had violated Title VII and the Equal Pay Act by engaging in gender discrimination in establishing salaries, promotions, work assignments, training opportunities, and "professional courtesies." R. 45 at Ex. 19. In August 1987, these charges ripened into a law suit in federal court. Carey v. Chicago Hous. Auth., No. 87 C 6998 (N.D.Ill. filed August 7, 1987).

In February 1987, after the Cary plaintiffs had filed charges with the EEOC, James Thomas, as General Counsel, issued a memo advising the Legal Department's staff that the Cary plaintiffs could not represent the CHA on any employment-related matters or on any matters in which their attorney, who also represented other clients with interests adverse to the CHA, was involved. The memo also directed the staff not to discuss employment-related cases with the Cary plaintiffs and to consult with supervisors if any question about such disclosures should arise. It concluded by stating that this new policy was not intended to reflect on the integrity of the Cary plaintiffs and was not meant to disrupt non-employment relations. The defendants claim that this memo built a "Chinese Wall" around the Cary plaintiffs in order to comply with the Code of Professional Responsibility. Mr. Marshall asserts that its effect was to signal other members of the Legal Department's staff that they were to "keep a distance" from the four women. Appellee's Br. at 11.

Mr. Marshall alleges that, in the wake of the "Chinese Wall" memo, the Cary plaintiffs were ostracized by Legal Department staff members, who feared for their jobs. He also asserts that Messrs. Allen, Fusco, and Anderson turned their attention to firing the Cary plaintiffs. The defendants do not agree with these claims. Nonetheless, it is undisputed that the Cary plaintiffs were suspended from the CHA on January 29, 1988, and that they were discharged on March 4 of that same year. Following the suspensions, several women's interest organizations held a press conference in support of the four attorneys. The suspensions and the firings also prompted numerous stories in Chicago newspapers.

Mr. Marshall was discharged on June 20, 1988. The stated reason for his dismissal was poor job performance, although he claims that the real cause was his support for the Cary plaintiffs in their dispute with the CHA. As evidence of this support, Mr. Marshall cites a number of instances in which he allegedly spoke in favor of the Cary plaintiffs and their claims, or otherwise assisted them. These include: (1) a December 1986 statement to James Thomas suggesting that the Cary plaintiffs should be given a forum in which to air their grievances; (2) a December 1987 statement in a private meeting with Mr. Fusco disputing Mr. Fusco's assessment of the legal skills of two of the Cary plaintiffs; (3) statements made to the CHA's outside counsel on the day of his discharge indicating his belief that the Cary plaintiffs' claims had merit; and (4) the fact that he shared information with the Cary plaintiffs

                about a promotion he received, which presumably helped them prepare their case against the CHA.   In addition, Mr. Marshall asserts that he continued to associate with the Cary plaintiffs after the "Chinese Wall" memo had been issued and they allegedly had been stigmatized, and that, during this period, he made favorable comments about them to co-workers.   He also claims that he was identified as a supporter of the Cary plaintiffs in pleadings and depositions generated during the course of the Cary litigation.   On May 27, 1988, shortly after he had learned that Messrs. Fusco and Allen were recommending his termination, Mr. Marshall filed a charge with the EEOC, alleging retaliation.   As noted above, he was officially terminated on June 20
                
B. District Court Proceedings

On June 20, 1989, Mr. Marshall filed a five-count complaint against the CHA and Messrs. Allen, Anderson, and Fusco in the United States District Court for the Northern District of Illinois. Count I alleged that his discharge had been in retaliation for his support of the Cary plaintiffs, and in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) (1988), and the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3) (1988). Count II brought a claim under 42 U.S.C. § 1983 (1988), alleging that his discharge violated his First Amendment rights of free speech and free association. Count III claimed that Mr. Marshall had been deprived of a property interest in his employment without due process of law. Counts IV and V alleged state law breach of contract and intentional infliction of emotional distress. After the close of discovery, all defendants moved for summary judgment on all counts. In addition, Messrs. Allen, Anderson, and Fusco sought qualified immunity on the federal law claims. The district court granted summary judgment in favor of all defendants on the due process count and on the state law breach of contract and tort counts. However, it denied summary judgment on Count I, the Title VII and Fair Labor Standards Act claims, on the ground that Mr. Marshall had submitted sufficient facts to support a claim of retaliation. The court likewise denied summary judgment on Count II, the First Amendment claims, concluding, with regard to the free speech claim, that Mr. Marshall "has presented sufficient facts to raise a factual dispute as to whether the matters he spoke out on were of public concern. Factual disputes also exist as to whether [he] was fired for this speech." Mem.Op. at 5 (footnote omitted).

Messrs. Allen, Anderson, and Fusco's claims for qualified immunity were likewise denied. The district court held that this court's decision in Auriemma v. Rice, 910 F.2d 1449 (7th Cir.1990) (en banc), cert. denied, --- U.S. ----, 111 S.Ct. 2796, 115 L.Ed.2d 970 (1991), demonstrated that, at the time of the supposed retaliation, it was clearly established that Mr. Marshall's alleged speech was protected by the First Amendment. In addition, the court determined that the defendants had waived any affirmative defense to Mr. Marshall's free association claim by not adequately addressing it in their pleadings. The court also concluded that the law was clear in 1988 that supervisors could be liable for retaliation under Title VII and the Fair Labor Standards Act.

II

ANALYSIS

A. Appellate Jurisdiction

Mr. Marshall asserts that, as a threshold matter, this court has no jurisdiction over this case because the...

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