Randle v. City of Chicago

• Decision Date: 28 August 1979
• Docket Number: No. 79 C 392.,79 C 392.
• Citation: 527 F. Supp. 1
• Parties: Samuel RANDLE, Plaintiff, v. The CITY OF CHICAGO, a Body Politic, Richard G. Albrecht, Commissioner of the Chicago Fire Department, and William E. Cahill, Chairman of the Department of Personnel, Defendants.
• Court: U.S. District Court — Northern District of Illinois

527 F. Supp. 1

Samuel RANDLE, Plaintiff, v.The CITY OF CHICAGO, a Body Politic, Richard G. Albrecht, Commissioner of the Chicago Fire Department, and William E. Cahill, Chairman of the Department of Personnel, Defendants.

No. 79 C 392.

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

August 28, 1979.

Stephen B. Horwitz, Jacobs, Burns, Sugarman & Orlove, Chicago, Ill., for plaintiff.

Joseph Gagliardo, Asst. Corp.Counsel, Chicago, Ill., for defendants.

ROSZKOWSKI, District Judge.

After careful consideration of the briefs filed in this case and the Report and Recommendation of the Magistrate, the court hereby adopts the Report and Recommendation of the Magistrate.Accordingly, plaintiff's motion to strikedefendants' affidavits is denied.It is further ordered that defendants' motion to strike and dismiss the complaint is construed as a Motion for Summary Judgment and it is denied as it relates to issues of intentional racial discrimination and it is granted as it relates to due process issues.

MAGISTRATE'S REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO STRIKE AND DISMISS COMPLAINT

JOHN W. COOLEY, Magistrate.

Defendants have filed a Motion to Strike and Dismiss the Complaint for Declaratory, Injunctive and Monetary Relief.The motion has been fully briefed and plaintiff has moved to strike certain affidavits attached to defendants' reply memorandum.For reasons stated in the accompanying supporting memorandum;

IT IS RECOMMENDED that plaintiff's Motion to StrikeDefendants' Affidavits be DENIED.

IT IS FURTHER RECOMMENDED that the court construe Defendants' Motion to Strike and Dismiss the Complaint as a Motion for Summary Judgment and that it be DENIED as it relates to issues of intentional racial discrimination and GRANTED as it relates to due process issues.

IT IS FURTHER RECOMMENDED that the district court give some consideration to suggesting to the Executive Committee that this case be reassigned to the Honorable Frank J. McGarr, as an issue has been raised as to whether defendants' actions, as alleged in this Complaint, amount to a contempt or a circumvention of Judge McGarr's September 12, 1978 Supplemental Order on Firefighter Hiring entered in Case No. 73 C 661.

MAGISTRATE'S MEMORANDUM IN SUPPORT OF REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO STRIKE AND DISMISS COMPLAINT

Defendants have filed a Motion to Strike and Dismiss the Complaint for Declaratory, Injunctive and Monetary Relief.The motion has been fully briefed and plaintiff has moved to strike certain affidavits attached to defendants' reply memorandum.For the reasons stated infra, it is recommended that plaintiff's Motion to StrikeDefendants' Affidavits be denied, that the district court construe defendants' Motion to Strike and Dismiss the Complaint as a Motion for Summary Judgment and deny it in part and grant it, in part, and that consideration be given to suggesting to the Executive Committee that this case be reassigned to Judge McGarr as related to Case No. 73 C 661.

2.Nature and Scope of Consideration of Defendants' Motion

As plaintiff correctly observes, defendants' motion to strike and dismiss the Complaint, which is supported by facts outside the pleadings, must be treated as a motion for summary judgment under Fed.R.Civ.P. 56.SeeRule 12(b)(6), Fed.R.Civ.P.;Smith v. Blackledge,451 F.2d 1201(4th Cir.1971);General Dynamics Corp. v. U.S.,558 F.2d 985(Ct.Cl.1977).Treated as such, parties must be given a "reasonable opportunity to present all material made pertinent to such a motion by Rule 56."Fed.R.Civ.P. 12(b)(6).

Summary judgment under Rule 56,Federal Rules of Civil Procedure, is an extreme remedy which should be sparingly employed.City National Bank of Fort Smith, Arkansas v. Vanderboom,422 F.2d 221, 223(8th Cir.), cert. denied,399 U.S. 905, 90 S.Ct. 2196, 26 L.Ed.2d 560(1970);Homan Mfg. Co. v. Long,242 F.2d 645(7th Cir.1957).It should be entered only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."Rule 56, Fed.R.Civ.P.The court may rely only on facts in such exhibits which would be admissible in evidence.¹Fed.R.Civ.P. 56(e).

The basic mission of the summary judgment procedure is to allow a court to pierce the pleadings and assess proof in order to see whether there is a genuine need for a trial.Gauck v. Meleski,346 F.2d 433(5th Cir.1965).Issue finding and not issue resolution is the court's task under such procedure.Hackensack Water Co. v. Village of Nyack,289 F.Supp. 671(S.D.N.Y.1968).In performing its task, the court must draw inferences from underlying facts contained in such materials as affidavits, exhibits, and depositions, in a light most favorable to the non-movant.Technograph Printed Circuits, Limited v. Methode Electronics, Inc.,356 F.2d 442, 446-47(7th Cir.), cert. denied,384 U.S. 950, 86 S.Ct. 1570, 16 L.Ed.2d 547(1966).The non-movant's allegations must be taken as true, to the extent that they are consistent with its evidence before the court.SeeGoodman v. Mead Johnson Co.,534 F.2d 566(3d Cir.1976), cert. denied,429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748(1977).It is the court's duty to resolve all doubts as to the existence of a genuine issue as to a material fact against the moving party.Technograph Printed Circuits, Limited v. Methode Electronics, Inc., supra.In keeping with this function and duty, the court will set forth in paragraphs infra: (1) a comprehensive statement of the plaintiff's case with all inferences from the court file drawn in a light most favorable to him; (2) an analysis of the question of whether genuine issues of material fact do exist; (3) conclusions; and (4) recommendations.

2.Statement of Case Viewed in Light Most Favorable to Plaintiff

a. Firefighter Hiring Order

On September 12, 1978, Judge McGarr entered a "Memorandum of Opinion and Supplemental Order on Firefighter Hiring" in Case No. 73 C 661.²That order permitted the City of Chicago to fill 280 vacancies which existed for the position of Firefighter in the Chicago Fire Department upon the condition that 120 of those vacancies be allotted to Black and Spanish-surnamed applicants who had qualified by achieving passing scores on previously administered examination.Under the terms of the order, the vacancies had to "be filled by persons on the 1975 Firefighter Eligibility List," and after filling the vacancies, the "list...was not to be further used without leave of Court."Order ofSeptember 12, 1978, page 3, para. 1.

b. Selection of Plaintiff As a Result of Order

Plaintiff, Samuel Randle, a Black citizen of the United States, applied for a position as a Firefighter with the Chicago Fire Department, in June, 1974.In completing the application, plaintiff was required to respond to the question of whether he had ever been arrested and convicted of a felony.Plaintiff responded that he had been arrested in January, 1974 for aggravated assault, but that the charges were dropped and he was not convicted of any offense.

Subsequently, plaintiff took the written and physical components of the 1974 Firefighter Exam, administered by the Department of Personnel(or its predecessor) and the Fire Department.He achieved passing scores in both phases of the 1974 Firefighter Exam and his name was placed on the 1975 Firefighter Eligibility List.

Approximately four years later, on September 19, 1978, as a consequence of Judge McGarr's September 12, 1978 Firefighter hiring order, the Department of Personnel of the City of Chicago sent plaintiff notification that he was being considered for employment as a Firefighter.The notification read in pertinent part:

Your name has been reached on the Eligible List for Firefighter...Preliminary information regarding this vacancy is as follows:

LOCATION: Fire Academy

HOURS: Shift Work

SALARY: $1,159.00 per month

...You will be scheduled for and required to pass a rigid medical examination prior to appointment to the position of firefighter.Do not resign your present job until the physical examination has been completed and you are notified to report for training.

(Complaint, Ex. A).The notification did not advise plaintiff that a background investigation had yet to be conducted.Thereafter, plaintiff passed the "rigid medical examination," attended the Fire Academy and completed training for the position of Firefighter.He graduated from the Academy, was certified as a Firefighter, and was assigned to Engine Company 44, located at Lake and Kedzie in Chicago.

c. Hearing on Plaintiff's "Arrests"(1)Notice of Hearing

Two months after the entry of Judge McGarr's order, and after plaintiff had become a "certified" Firefighter, the Department of Personnel issued a notice to plaintiff which read in pertinent part:

This is to inform you that on the basis of an investigation into your background, evidence exists that may terminate you from your position with the Chicago Fire Department, namely:

Arrests, 1974, 1977

If you wish to contest this evidence, you must appear at the Department of Personnel...onNovember 28, 1978 at 10:00 a. m. ...You must notify the Department of Personnel within three days of your hearing date to get a continuance.Your failure to do this will result in your dismissal from the Chicago Fire Department.

(Complaint, Ex. C)(Emphasis added).

(2)Hearing

On the morning of November 28, 1978, plaintiff reported to the office of the Department of Personnel as instructed.While sitting in the reception area, awaiting for his case to be called, the Assistant CorporationCounsel who was to handle the inquiry into his arrests told plaintiff that he had nothing to worry about and that he would just be asking a few routine questions about plaintiff's arrest record.No mention was made that there would be any...