Nowak v. Szwedo, 88 C 5766.
| Decision Date | 11 January 1989 |
| Docket Number | No. 88 C 5766.,88 C 5766. |
| Citation | 704 F. Supp. 153 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | Herbert NOWAK, Plaintiff, v. Frank SZWEDO and Richard Julien, Defendants. |
Plaintiff Herbert Nowak brings suit against Defendants Frank Szwedo and Richard Julien under 42 U.S.C. § 1983 for alleged violations of his rights under the First and Fourteenth Amendments. Defendants have moved to strike and dismiss the complaint. For the reasons set forth below, the motion is granted in part and denied in part.
The complaint alleges the following. Plaintiff is a paramedic with the Chicago Fire Department. Defendant Szwedo is Director of the Inspections and Auditing Division ("IAD") of the Fire Department, and Defendant Julien is Assistant Director of IAD. In February 1983 Plaintiff became active in the mayoral campaign of the late Harold Washington. Szwedo and Julien were active supporters of then-mayor Jane Byrne. In April 1983 Plaintiff co-authored and submitted to the mayor's office recommendations entitled respectively "Elimination of Monetary Waste in the CFD" and "Elimination of Monetary Waste in CFD's Emergency Medical Service." In June 1983, Plaintiff co-authored and submitted to the mayor's office additional reports entitled respectively "Continued Recommendations for the Elimination of Monetary Waste and Inefficiency in the CFD" and "Summary of the CFD Paramedic Lawsuit."
As a result of Plaintiff's recommendations regarding the elimination of waste in the running of the CFD, Defendants began to harass Plaintiff.1 The harassing incidents are as follows.
1. On October 26, 1983, Defendants confronted Plaintiff in the file room of the Quinn Fire Academy. In discussing Plaintiff's job performance, they characterized his attitude with obscenities and attacked him personally. They told Plaintiff to "clean up his act" and "do more than he was doing to protect his position," and engaged in verbal outbursts. Julien told Plaintiff that
2. On February 16, 1984 Julien interrogated Plaintiff regarding the length of time Plaintiff was spending in the IAD office.
3. On July 13, 1984, Szwedo accosted Plaintiff and threatened him with ejection from the IAD office. Szwedo told Plaintiff that he had good information that Plaintiff was trying to "overthrow his position" as Director and that he had a "bad attitude." He also informed Plaintiff that he should seriously consider which ambulance he wanted to be assigned to, but that he would not necessarily get that assignment.
4. In the spring of 1985, Plaintiff was assigned to conduct surveillance on a retired fireman who was allegedly shaking down storefronts in Chicago. Plaintiff thought that this investigation was outside the realm of IAD, but was told by Defendants to do his job.
5. On April 22, 1986 Szwedo told Plaintiff to call a detective regarding a particular investigation. When Plaintiff forgot to call the detective, Szwedo "went into a tirade and chased Plaintiff around his office yelling at him." On April 23, Szwedo confronted Plaintiff regarding the events of the previous day. Szwedo told Plaintiff that Plaintiff showed nothing but contempt for Szwedo and Szwedo's position, and told Plaintiff to do his work but nothing else. Szwedo also stated that he knew Plaintiff had wanted to strike him the day before. (In fact, Plaintiff was told by Carol Falcon, who witnessed the confrontation, that she thought Szwedo was going to strike Plaintiff). Szwedo offered to send Plaintiff into the field and stated that a report would be placed in Plaintiff's file, yet "again stated" that he had no complaints about Plaintiff's work. Szwedo did not issue a Disciplinary Register Number in the report, "which is outside the disciplinary process of the CFD."
6. On July 11, 1986, Plaintiff was informed that a special investigation had been initiated against him as a result of requested overtime for being detailed to Grant Hospital. Plaintiff was told by Julien that he did not need overtime forms, yet Julien questioned the correctness and reasonableness of the overtime when Plaintiff submitted his request.
7. On an unspecified date, Plaintiff investigated a case in which an ambulance arrived too late to save a patient, and found that the ambulance had gotten lost on the way to the call. Emergency Medical Services did not approve the case against the ambulance. When Plaintiff suggested a possible cover-up to Defendants, they ignored Plaintiff's concern and told him that "That's the way it is."
8. At unspecified times, Plaintiff offered opinions contrary to those of Defendants at office meetings. His opinions were met with scorn. As a result, "Plaintiff would not contribute to office meetings and would also not be invited to such meetings by Defendants."
9. In October 1986, Plaintiff was assigned to the 4th District, where the number of calls is greater, the neighborhood tougher, the working conditions worse than in other districts, and which is likely to have personnel who would "frown upon" a former IAD investigator. Plaintiff was assigned to this district despite Szwedo's promises that Plaintiff could pick his assignment when he left IAD. Plaintiff also failed to receive a raise which he had been promised. While in the 4th District, Plaintiff did not have an assignment and was exposed to a different firehouse and different personnel every day.
Plaintiff asserts that the actions of Defendants were taken in retaliation for his submitting written recommendations regarding waste in the CFD, and were undertaken in their capacities as City of Chicago officials and under color of law. Plaintiff contends that as a result of these actions, he has lost income, been held up to public ridicule and ostracized by his fellow employees, has suffered severe mental and emotional distress, and has been foreclosed from pursuing career opportunities with the CFD. Plaintiff seeks $1,000,000 in damages and an injunction prohibiting further harassment.
Defendants seek dismissal of the complaint on the following grounds: 1) failure to state a claim upon which relief may be granted, 2) qualified immunity, and 3) statute of limitations. We shall now examine each of these grounds.2
Defendants assert that F.R.Civ.P. 12(b)(6) demands dismissal of this action because the alleged harassment was too trivial in nature and in any event occurred too long after Plaintiff's exercise of his free speech rights to be causally related to that exercise. We reject both these arguments.
Id. at 625. The court went on to explain that a campaign which is "trivial in detail may be substantial in gross," and found that the question of whether such a campaign rises to the level of actionability under Section 1983 is a question of fact. Id. We find, similarly, that the question whether the series of comparatively low-level harassing events detailed in Plaintiff's complaint rises to an actionable level is not appropriately determined at the pleading stage. Moreover, we also believe that the issue of causality is one of fact which must await resolution on summary judgment or at trial. Accordingly, we shall not dismiss the complaint on grounds of failure to state a claim.
Having determined that the complaint states a claim upon which relief may be granted, we now move to a consideration of whether Defendants are nevertheless immune from civil damages under the doctrine of qualified immunity. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." A right is clearly established when "the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). As explained by the Seventh Circuit:
The right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.... The test for immunity should be whether the law was clear in relation to the specific facts confronting the public official when he acted.
Conner v. Reinhard, 847 F.2d 384, 388 (7th Cir.1988) (citations omitted). More specifically, this circuit requires caselaw which "clearly and consistently recognized the constitutional right." Id. (citation omitted). The cases need not involve the exact same fact pattern as the...
To continue reading
Request your trial
-
Lucien v. Jockisch
...N.E.2d 1082, 1089 (1997) (cause of action for torts accrues at the time the plaintiff suffers the injury); see also Nowak v. Szwedo, 704 F.Supp. 153, 157 (N.D.Ill.1989) (measuring the limitations period from the date of the retaliatory transfer). Lucien's complaint, which was received by th......