Tomczak v. City of Chicago, s. 84-1490

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation765 F.2d 633
Docket Number84-1713 and 84-1894,Nos. 84-1490,s. 84-1490
PartiesDonald C. TOMCZAK, Plaintiff-Appellee, v. The CITY OF CHICAGO, an Illinois Municipal Corporation, Defendant-Appellant.
Decision Date17 June 1985

Patrick T. Murphy, Chicago, Ill., for plaintiff-appellee.

Jerold S. Solovy, Jenner & Block, Chicago, Ill., for defendant-appellant.

Before FLAUM, Circuit Judge, PELL and WISDOM, * Senior Circuit Judges.

PELL, Senior Circuit Judge.

Defendant below, the City of Chicago, appeals from the district court judgment in favor of plaintiff, Donald C. Tomczak, holding that appellant had violated the Shakman decree, which controls the use of political patronage in appellant's employment practices. Appellant raises three issues on appeal. The first issue is whether the district court erred in holding that the position occupied by appellee was not exempt from the strictures of Shakman. Second, even if the position is subject to Shakman, appellant maintains that the district court was clearly erroneous in finding that appellee's discharge was politically motivated and not for just cause. Finally, appellant objects to the remedy ordered by the district court.


In 1970, this court reversed the district court's dismissal of Shakman's complaint and held that the complaint stated a justiciable cause of action and contained factual averments sufficient to survive a motion to dismiss. Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1383, 28 L.Ed.2d 650 (1971). The complaint alleged that it was unconstitutional for public officials or political bodies to discharge or threaten to discharge employees under their control who refused to contribute money and work time to candidates supported by those officials or political entities.

A consent decree, entered in May 1972, attempted to eliminate, for employees of local governmental entities, any coercion or employment discrimination based upon political considerations. The decree enjoined the Shakman defendants from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time a governmental employee, upon or because of any political reason or factor." Reproduced in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315, 1358 (N.D.Ill.1979). The district court retained jurisdiction of the case to enable the parties to enforce compliance with the decree and to resolve a number of still-disputed issues, including whether

[c]ertain governmental employment positions ... by their nature involve policy-making to such a degree or are so confidential in nature as to require that discharge from such positions should be exempt from inquiry under this Judgment. Jurisdiction is maintained to litigate the question of which governmental employment positions under such defendants' jurisdiction are so exempt for the foregoing reasons.

Id. at 1358-59.

Shortly thereafter, various defendants, who had refused to enter into the decree, filed motions to dismiss. The district court granted the motions concerning those portions of the complaint that challenged the hiring and firing of patronage employees based solely upon the political affiliation of the employee. Shakman v. Democratic Organization of Cook County, 356 F.Supp. 1241, 1244-49 (N.D.Ill.1972). The district court reasoned that a newly elected or appointed official could replace employees of his predecessor based solely upon political affiliation, as long as he did not use hiring and firing practices to coerce political work or contributions. The United States Supreme Court subsequently has held that employees in nonpolicymaking and nonconfidential positions who are victims of patronage dismissals state a cause of action under the First and Fourteenth Amendments. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion); id. at 374-75, 96 S.Ct. at 2690 (Stewart, J., concurring).

In 1979, the district court again addressed the patronage practices, particularly in hiring decisions, of those defendants who had not entered the 1972 consent decree. Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D.Ill.1979). The court held that "the challenged patronage practices give the defendants an actual, significant advantage in elections" and, therefore, infringe the First and Fourteenth Amendment rights of the plaintiff candidates and voters. Id. at 1345. The court further held "that the non-consenting defendants have independently infringed the plaintiffs' constitutional rights through their use of patronage hiring, firing, and promotion practices, as well as through their conspiracy with the consenting defendants to practice and further patronage hiring practices." Id. at 1349 (footnote omitted). In a footnote however, the court added the following caveat:

It is the court's understanding that the plaintiffs are not challenging the defendants' use of political considerations in their employment decisions concerning policymaking officials, see Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Newcomb v. Brennan, 558 F.2d 825 (7th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (1977). The court's decision today does not affect government employees who are in that category.

Id. at 1353 n. 46.

In a later decision, the district court adjudged "the hiring aspects of the Shakman case." Shakman v. Democratic Organization of Cook County, 569 F.Supp. 177, 178 (N.D.Ill.1983). The court noted that the 1983 judgment attempted "to eliminate political considerations in the hiring of government employees." Id. The judgment included the following paragraph labeled "Exempt Positions":

Defendant Public Employers may, from time to time, apply to the Court for a determination that political party affiliation or activity are appropriate requirements for the effective performance of certain Governmental Employment positions and therefore hiring for or discharge from such positions should be exempt from inquiry under this Judgment and the Consent Judgment.

Id. at 182. In an appendix added to the opinion two months after the judgment, the district court, by motion of the City of Chicago and with the consent of the Shakman plaintiffs, supplanted the earlier judgment with respect to the city and its mayor. The substantive provisions of the amended judgment were substantially similar to the earlier judgment, except for portions related to the exempt positions. The new judgment exempted approximately 1,200 city employees from the application of the Shakman decree. Included in the exempt list, known as Schedule G, were approximately thirty-three positions in the Department of Water, including the Assistant Commissioners of the Department, the First Deputy Commissioner of Water, and the Deputy Commissioner of Water Services. The district court also retained jurisdiction of the case

to consider petitions requesting, for good cause, that particular positions listed in Part G should be deleted from the Schedule and to give such other relief as may be appropriate....

No action taken with respect to any position while it remains on the Schedule shall be considered contempt of this Court under the 1972 Consent Judgment.

Id. at 207.

A. The Termination.

Plaintiff began to work for the City of Chicago in 1958 and gradually worked his way up from a laborer's position to that of First Deputy Commissioner of the Department of Water. On November 16, 1983, plaintiff was terminated from his position as First Deputy Commissioner. Plaintiff then filed suit in the district court pursuant to the Shakman decree. He alleged that political motivations led to his dismissal in violation of the decree and that the district court had improperly included his position in Schedule G.

With respect to the allegedly politically motivated dismissal, the parties introduced a wide variety of evidence. Plaintiff attempted to establish that his relationship with John Corey, his superior and the Commissioner of the Department of Water, had always been professional and cordial until, without forewarning, Corey dismissed plaintiff. Plaintiff maintained that the mayor of the City of Chicago, or his associates, determined that plaintiff should be dismissed so that the mayor could replace him with someone who had political allegiance to the new administration. The evidence demonstrated that, less than one month after Corey sent a memorandum to the city's Bureau of Budget requesting that plaintiff's salary level be maintained, Corey terminated plaintiff, with blind copies of the termination letter sent to the corporate counsel, the mayor's chief assistant, and the mayor's press secretary.

A key witness at the trial was Thomas Bower, an engineer and Assistant Commissioner in the Department, acknowledged by both sides to be a professional employee without political allegiance to any faction of the city's fragmented Democratic party. Bower testified that he never had heard Corey criticize plaintiff and that the two men had "a very good working relationship." Although Bower often acted as a liaison between Corey and plaintiff, there were also direct phone calls and at least one face-to-face meeting between the two each week. Bower could not believe that Corey would have terminated plaintiff for political reasons.

Corey, in his trial testimony, attributed the dismissal to a failure of communication and to a verbal confrontation that he had had with plaintiff in 1979, when plaintiff was the Deputy Commissioner in the Department. According to Corey, the two men later met with then Mayor Byrne, who reprimanded plaintiff, which Corey thought was an inadequate response. Plaintiff denied that the meeting ever took place. Later,...

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