Waters v. City of Chicago

• Decision Date: 02 September 2009
• Docket Number: No. 08-1583.,No. 08-2493.,08-1583.,08-2493.
• Citation: 580 F.3d 575
• Parties: Daniel B. WATERS, Plaintiff-Appellee, v. CITY OF CHICAGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

580 F.3d 575

Daniel B. WATERS, Plaintiff-Appellee, v. CITY OF CHICAGO, Defendant-Appellant.

No. 08-1583.

No. 08-2493.

United States Court of Appeals, Seventh Circuit.

Argued February 27, 2009.

Decided September 2, 2009.

Mary Robinson (argued), Downers Grove, IL, Daniel O'Brien, Burke & O'Brien, Chicago, IL, for Plaintiff-Appellee.

Daniel B. Waters, Chicago, IL, pro se.

Kerrie Maloney Laytin (argued), Myriam Z. Kasper, Office of the Corporation Counsel, Appeals Div., Chicago, IL, for Defendant-Appellant.

Before MANION, ROVNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Daniel B. Waters worked as a painter for the City of Chicago (City) from 1994 until his termination in 2000. In 2002, he sued the City and four of his superiors in their individual and official capacities under 42 U.S.C. § 1983, alleging retaliation in violation of his First Amendment rights. This appeal requires us to decide whether the district court erred in denying the City's motion for judgment as a matter of law and whether it erred in awarding Waters attorneys' fees and costs. We conclude that the district court should have granted the motion for judgment as a matter of law, and we reverse its judgments.

I. Background

Daniel Waters was employed as a painter with the City's Department of Transportation (CDOT), Bureau of Bridges from July 1994 until August 2000. (He previously had worked for the City as a painter from 1990 to 1991.) In 1994 Waters' general foreman, Kirk Woelfe, asked him to campaign in the Tenth Ward. Waters did so. Then in early 2000, he was again asked to campaign. This time he refused. Waters alleged that his refusal constituted an exercise of his free speech and freedom of association rights protected by the First Amendment.

Waters also alleged that he exercised his freedom of speech and association rights by contacting the media on two occasions while employed with CDOT. First, in 1998 or 1999, he contacted Walter Jacobson from the local Fox TV station about a bridge Waters believed was in disrepair and a danger to the public. Waters took a reporter and photographer to the bridge to look at the workmanship. Afterwards Stan-Lee Kaderbek, the deputy commissioner of CDOT's Bureau of Bridges, and Mark Fornaciari, general foreman, general trades under Kaderbek, came to the job site after midnight. According to Waters, it was very unusual for them to be at the job site. They confronted Waters. Kaderbek looked him straight in the eye and said, "Hi Dan," in a very pronounced manner. After this occurrence Waters noticed changes in his job — he was given assignments far away from home, his working conditions were poor, and he was subjected to verbal abuse and what he perceived as efforts to provoke him.

Waters contacted the media a second time in late March 2000 when he contacted John Kass from the Chicago Tribune. Waters believed the City was doing expensive improvements to the property where its iron shop was located to benefit the company that owned the property. He took Kass to the iron shop and showed him around. Art Korzniewski, an assistant to Kaderbek, observed Waters doing so. Later that day Dean Maltes, acting foreman, told Waters, "Boy, you are in trouble now." And Michael Clatch, one of five foremen for the painters, testified that after Kass's visit to the iron shop, Woelfe told him, "Dan's in trouble now." Clatch also testified that nothing happened in the Bureau of Bridges without Kaderbek's input.

At that time, Waters had been assigned to the iron shop approximately one and one-half to two years. However, just a few days after Kass's visit and after Waters had refused to campaign in the Tenth Ward, Waters was transferred out of the iron shop. He was transferred to the Springfield Pumping Station where Anthony Tripoli, acting foreman, became his supervisor. Waters had worked with Tripoli six times before. Waters described their working relationship as unpleasant. He claimed that Tripoli tried to provoke him, said mean things to him, and gave him difficult jobs. Waters explained that Tripoli knew that Waters had pain in his knees and gave him assignments where he would have to paint on his knees.

One of Waters' coworkers testified that within a week of Kass's visit, he heard Fornaciari tell a general foreman, "We're going to fire that crybaby son of a bitch." However, Waters' name was not mentioned. Clatch testified that Tripoli told him that Kaderbek had promised to make Tripoli a permanent foreman if Tripoli got rid of Waters. This didn't pan out for Tripoli. He never became a permanent foreman. In fact, after Waters' termination, Tripoli's "acting foreman" title was taken away from him.

On April 5, 2000, only days after Waters' reassignment to the pumping station, Waters and Tripoli were involved in an incident. Waters confronted Tripoli and three other painters who were in the break room, even though the official break time was over. He questioned why they were still there and whether the break rules applied to him only. There was some yelling and, at one point, Waters dropped onto a bench. Because of his size, he pushed up against Jimmy Stratton, one of the other painters there. As a result of this incident, Tripoli filed a violence in the workplace incident report against Waters, claiming that he used direct or indirect verbal threats, physical abuse or the use of force, and threatening, intimidating, coercive behavior. The three other painters' versions of what happened seemed to corroborate Tripoli's account. Waters claimed that he did not touch or verbally intimidate anyone during the argument.

A pre-disciplinary hearing was set for May 15, 2000. Waters didn't attend — he called in sick that day because he wasn't feeling well and his wife was having labor contractions and wanted to go to the hospital. The hearing was rescheduled for May 17. It was not uncommon for an employee to avoid a pre-disciplinary hearing; such hearings were regularly rescheduled due to an employee's absence.

However, on the morning of the 15th, Waters telephoned Tripoli to ask him if he had a criminal record. Waters had heard from other painters that Tripoli had a record. Waters wanted to confirm if Tripoli did in an effort to bolster his own credibility as compared to Tripoli's regarding the April 5 incident. The afternoon of the 15th while on his way to the hospital, Waters stopped at the pumping station to obtain Tripoli's license plate number to give to a private investigator and to encourage one of the witnesses of the April 5 incident to "back off his charges or at least tell the truth." Waters talked with some coworkers outside the door of the pumping station, but didn't go in. However, Tripoli came to the door, yelled at Waters, and told him to leave. Someone called the police. When they arrived, Waters was detained for a brief period. He was not arrested and no charges were filed against him.

As a result of the morning call and the afternoon incident, Tripoli made two more violence in the workplace incident reports against Waters. Tripoli claimed that the phone call was threatening. He alleged that Waters made threatening remarks in the parking lot to Tripoli and Stratton (who had been involved in the April 5 incident). Tripoli also alleged that Waters was intimidating because of his size. Stratton likewise reported that Waters had been intimidating and threatening.

Kaderbek had had enough of Waters. Later that day, on May 15, Kaderbek wrote a memorandum to Cheri Heramb CDOT's deputy commissioner of personnel, and Florence Hooker, director of administration. The memo requested that charges be drafted to show cause for Waters' termination based on a continuing pattern of verbal and physical threats. Kaderbek copied the memo to CDOT Commissioner Judith Rice. Kaderbek was responsible for discipline within the Bureau of Bridges but did not have the authority to terminate an employee. He could only recommend termination; Commissioner Rice had the authority to terminate.

Donald O'Malley, the CDOT violence in the workplace liaison between the CDOT and the Department of Personnel, emailed Kaderbek that it was premature to request that charges be drafted regarding the May 15 incidents. Indeed, it was contrary to the City's disciplinary procedures. O'Malley advised Kaderbek that they needed to contact Waters and have him fill out an attachment to the incident reports or interview him to get his account of the May 15 events.

Waters completed an attachment to both May 15 incident reports, providing his account of what had happened. Waters said that his telephone call was nonthreatening and that he was simply inquiring whether Tripoli had a criminal background. Regarding the events in the parking lot, Waters claimed that Tripoli and Stratton had threatened him and that Tripoli prevented him from leaving the parking lot. Waters also claimed that Tripoli had intimidated and threatened to get him fired. Waters denied that he had ever threatened Tripoli.

O'Malley reviewed the reports and attachments completed by the participants and witnesses and, on June 5, 2000, he completed his own report on the two May 15 incidents.¹ His responsibility was to determine whether the allegations in the incident report and attachments, if believed, fell within the definition of violence in the workplace. O'Malley concluded that in both incidents Waters was attempting to intimidate Tripoli and other participants. O'Malley also found that on May 15 Waters was attempting to retaliate against Tripoli for filing the April 5 incident report. O'Malley submitted his report to Kaderbek.

On June 23, 2000, Kaderbek issued a memorandum similar to his May 15 memo, again requesting that charges be drafted showing cause for Waters' termination.

The procedures for addressing termination recommendations apparently were followed in Waters' case. The City's Law Department drafted a statement of charges based on the reports without...