Pollard v. City of Chicago

• Citation: 643 F. Supp. 1244
• Decision Date: 25 July 1986
• Docket Number: No. 85 C 0009.,85 C 0009.
• Parties: Henry POLLARD and Ella Marie Pollard, Plaintiffs, v. CITY OF CHICAGO, Lester Dickinson, John D'Amico and Jerry Dalton, individually and officially, Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

643 F. Supp. 1244

Henry POLLARD and Ella Marie Pollard, Plaintiffs, v. CITY OF CHICAGO, Lester Dickinson, John D'Amico and Jerry Dalton, individually and officially, Defendants.

No. 85 C 0009.

United States District Court, N.D. Illinois, E.D.

July 25, 1986.

COPYRIGHT MATERIAL OMITTED

John L. Gubbins, Chicago, Ill., for plaintiffs.

Anne M. Burke, Algis Baliunas, Darka Papushkewych, Michael Small, James D. Montgomery, Chicago, Ill., for defendants.

ORDER

NORGLE, District Judge.

The Court's last encounter with this lawsuit resulted in dismissal of Plaintiff's, Henry Pollard ("POLLARD"), federal and pendent state claims. See Order, # 85 C 9 (August 7, 1985). Pollard has since filed an amended Complaint. The Defendants, City of Chicago ("CITY"), Lester Dickinson ("DICKINSON"), John D'Amico ("D'AMICO") and Jerry Dalton ("DALTON"), filed a motion to dismiss the first amended Complaint. For the following reasons Defendants' motion is granted in part and denied in part.

The amended Complaint contains the following allegations:¹ Pollard began working for the City of Chicago in 1971. Along the way he advanced to the position of motor truck driver for the Department of Streets and Sanitation ("DEPARTMENT"). During Pollard's term of employment, Dickinson was the Commissioner of the Department, D'Amico was the Commissioner of the Bureau of Forestry (a division of Department) and Dalton was the General Superintendent of the Bureau.²

On July 20, 1983, Pollard complained to D'Amico about the duties a pregnant employee was required to perform at a Department facility. Pollard also alleged that the woman, a black, was the victim of harassment and humiliation by white males at the facility. D'Amico was informed of Pollard's expressions of concern for the physical and emotional effects of such treatment on the woman.

Some six days later Pollard had the first of two meetings with Dickinson. Plaintiff repeated the concerns he had voiced to D'Amico with the addition of a photographic display and some charges that certain employees had abused their positions. Pollard charged that 1) supervisors made false mileage claims, 2) some employees were splitting logs on Department property with Department equipment and the split logs were sold for the personal gain of certain supervisors, 3) Department funds were misused to purchase personal items for certain supervisors and 4) other work was performed for the personal benefit of certain supervisors. Amended Complt at 3, ¶ 11.

The next day Plaintiff was summoned to D'Amico's office. D'Amico told him to "forget" about all the matters he had raised before Dickinson. He also told Plaintiff to destroy the pictorial display. Plaintiff waited approximately one month before filing an official complaint with the Office of Municipal Investigations ("OMI").³ Plaintiff presented his evidence to an OMI investigator, and alleges OMI never contacted Plaintiff about the matter. Perhaps in response to OMI's inactivity, Plaintiff set out to collect additional evidence to substantiate his charges.⁴

On September 14, 1983, Plaintiff observed Dalton exiting the Calumet Park Municipal Building. Plaintiff began taking photographs and Dalton rushed at Plaintiff, threatened him and pounded on the side of Plaintiff's car. When a policeman arrived, Dalton stated the "damn nigger is harassing me." Despite Dalton's charge, Plaintiff was told he was free to go. Five days later, however, Chicago Police Officers appeared at Plaintiff's Chicago residence and arrested him for the Calumet Park incident. Plaintiff was informed that Dalton had filed a complaint for "threatening a public official and ... aggravated assault." Amended Complt at 4, ¶ 15. Pollard was arrested, taken to the station house and released on bond.⁵ Pollard cites Dalton's complaint as one in a series of harassments he has suffered on and off the job "by agents and employees of the City of Chicago."⁶ Amended Complt. at 4, ¶ 18. The additional harassments suffered by Pollard are: a) phony complaints about the quality of his work, b) verbal abuse from Dalton⁷ and c) anonymous phone calls of a threatening nature received at his home.⁸

The amended Complaint contains additional harassing or retaliatory actions taken by the Defendants against Pollard. For example, on September, 1983 Pollard was transferred from his mail driver position to that of line truck driver. Pollard alleges Dalton performed the transfer to harass and retaliate against him. D'Amico and Dickinson are alleged to have acquiesced in the transfer with the same motivation. Similarly, Pollard alleges Dalton also engineered his two day suspension on a trumped-up charge;⁹ again D'Amico and Dickinson acquiesced in Dalton's action. In April, 1984 Pollard was transferred a second time by Dalton; and in July, 1984 a third time. In each of these instances Pollard alleges Dalton was motivated by an intention to harass or retaliate against Plaintiff and that D'Amico and Dickinson acquiesced in the transfers.

In Count I Pollard claims the three transfers initiated by Dalton and joined in by D'Amico and Dickinson were intended to harass and retaliate against Plaintiff for his exercise of first amendment rights. Additionally, Count I claims Dalton further deprived Plaintiff of his first amendment rights by initiating a) two criminal actions and b) an OMI investigation. Count II incorporates all of Court I but alleges Dalton imposed additional terms and conditions on Plaintiff's employment because of Plaintiff's race (black).¹⁰ Additionally, Pollard alleges his transfer from the mail driver position by Dalton was motivated by racial discrimination in violation of the fourteenth amendment and § 1983.¹¹

Count III alleges a violation of § 1981 and is premised on Dalton's filing of criminal complaints against Pollard. Pollard alleges Dalton's decision to file the complaints was premised on race. Count IV is a § 1983 claim directed at City. That count alleges Dalton, D'Amico and Dickinson are City policy makers. Accordingly, Defendants' official action in transferring Plaintiff without reason or cause was a taking of property without due process of law as protected by the fourteenth amendment due process clause. Counts V through VII are pendent state law claims: Count V, abuse of process; Count VI, intentional infliction of severe emotional distress; Count VII, intentional infliction of severe emotional distress (to Mrs. Pollard).

A. Count I: First Amendment Claims

Pollard alleges two general topics of protected speech for which he suffered harassment and retaliation: 1) the treatment received by a pregnant black employee and 2) charges that various supervisors abused their positions. Pollard's claims are subject to the two-step analysis stated in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Thus, the Court must determine if 1) Pollard spoke on matters of public concern and, if so, 2) whether the interest of a public employee (Pollard) in commenting upon matters of public concern outweighs the interests of the Department as an employer in promoting effective and efficient public service. Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1256 (CA7 1985); Knapp v. Whitaker, 757 F.2d 827, 838-39 (CA7 1985).

Whether a public employee's speech addresses a matter of public concern depends upon the content, form and context of the speech. Connick, 103 S.Ct. at 1690-91. But it is generally the content of the speech which is the most important factor. Yoggerst v. Hedges, 739 F.2d 293, 296 (CA7 1985). The content of the first topic of speech identified by Pollard concerns the treatment of a pregnant black employee.

Pollard told D'Amico the woman was required to open and close a heavy gate at a Department facility. He also told D'Amico and Dickinson that the woman was the victim of harassment and humiliation by white male employees. Pollard insists such speech is a matter of public concern because it "invokes overtones of racial and sexual discrimination." Pltf's Response at 5. To an extent, Pollard is right.

Pollard's comments regarding the woman's gate duties reveal no more than his personal disagreement with the decision to assign the woman to that post. In similar cases such speech has been characterized as a matter of personal, rather than public, concern. See Knapp, 757 F.2d at 840 (teacher's speech on classroom assignments and evaluations matters of personal concern). The same, however, cannot be said of Pollard's comments regarding incidents of sexual and racial harassment by white males.

There can be little doubt that incidents of racial and sexual discrimination are matters of social concern to the community. See Connick, 103 S.Ct. at 1691 n. 8. The values inherent in civil rights and employment discrimination legislation speak of our society's resolve to address the evils of discrimination. See, e.g., 42 U.S.C. § 2000e et seq. (proscribing employment discrimination on basis of race, color, religion, sex and national origin); 29 U.S.C. § 206(d) (proscribing discrimination in rates of pay based on gender); 29 U.S.C. § 621 et seq. (proscribing discrimination based on age); 42 U.S.C. § 1981 (proscribing discrimination based on race); 42 U.S.C. § 1982 (proscribing violations of federal rights generally). Thus, unlike Pollard's comments regarding the woman's duties (where no discrimination is apparent), speech identifying potentially actionable discrimination by government employees constitutes a matter of public concern. Neither the context nor the form of Pollard's speech contradicts the Court's finding.

The second topic of speech identified by Pollard is also a matter of public concern. Pollard alleges he spoke to Dickinson of supervisors in the Department who abused their positions. Pollard spoke of 1) false mileage reports, 2) misuse of City equipment, 3) misuse of City funds and 4) an unusual log selling venture. These matters clearly implicate the public...