McDONOUGH v. CITY OF CHICAGO

10.) Briatta argues there is no competent evidence that he verbally harassed McDonough. Briatta asserts that McDonough only alleged harassment on "general terms," and takes issue with the fact that McDonough was unable to recall exact dates and times of verbal harassment. (Briatta's Mem. in Supp. of Summ. J., Dkt. No. 232, at 8.) According to Briatta, "[t]he only conversations where McDonough comes close to establishing a foundation were those that McDonough alleges occurred when he was working on Briatta's crew on particular jobs," but that all of those conversations occurred before May 16, 2004. (Briatta's Reply, Dkt. No. 287, at 13.) Briatta also claims there is no causal link between McDonough's protected speech and the alleged teasing (Briatta's Reply, Dkt. No. 287, at 13), and that the alleged teasing was too trivial to be actionable under § 1983. (Briatta's Mem. in Supp. of Summ. J., Dkt. No. 232, at 8, 11-13; Briatta's Reply, Dkt. No. 287, at 14-15.) Briatta's last argument is that he would not have been acting under "color of state law" at the time of the purported harassment, because McDonough cannot establish that he was working under Briatta's supervision at the relevant times, and any such teasing would not have related to Briatta's duties. (Briatta's Mem. in Supp. of Summ. J., Dkt. No. 232, at 8, 9; Briatta's Reply, Dkt. No. 287, at 13-14.)

McDonough has supported his claims of harassment by Briatta with sufficient details and evidence to survive the motion for summary judgment on this point. With respect to timing, McDonough asserts that he was "constantly harassed" "on a regular basis" until October 2004. (Pl.'s Add'l SOF, Dkt. No. 252, ¶ 47.) This includes time after May 16, 2004, such that the harassment claim would not be time-barred. As previously mentioned, "McDonough admits that he was not on Briatta's crew after May 16, 2004" (Pl.'s Resp., Dkt. No. 251, at 19, n. 7), but McDonough did not necessarily have to be assigned to Briatta's crew in order for harassment to occur between May 16, 2004 and October 2004. McDonough's descriptions also imply that the harassment was so constant that providing a list of dates would not be practicable or necessary. Furthermore, given that Briatta allegedly called McDonough a "rat" on a frequent basis, it would be reasonable for a jury to conclude that the cause of Briatta's purported harassment was the fact that McDonough had engaged in protected speech. Additionally, as discussed earlier, whether the harassment complained of was trivial or substantial is a disputed fact that is material to McDonough's claim, and a question for the jury. Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).

With respect to the issue of whether Briatta was acting under color of state law, it is true that "[n]ot every action by a state official or employee is to be deemed as occurring `under color' of state law." Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001) (quoting Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989)). "[A]cts by a state officer are not made under color of state law unless they are related in some way to the performance of the duties of the state office." Honaker, 256 F.3d at 485 (citations omitted). In this case, Briatta had served as McDonough's supervisor, and a reasonable jury could conclude that Briatta had authority over the circumstances and conditions of McDonough's employment. See, e.g., Valentine v. City of Chicago, 452 F.3d 670, 683 (7th Cir. 2006). Furthermore, a reasonable jury could conclude that the alleged harassment related directly to Briatta's responsibilities as supervisor, as some of Briatta's alleged statements suggested that he planned or threatened to take action affecting McDonough's employment, including statements and threats about McDonough not receiving overtime, getting fired, and not being assigned to Briatta's crew. (Pl.'s Add'l SOF, Dkt. No. 252, ¶¶ 35, 47.)

Even though the court has concluded that the denial of overtime hours was not actionable, testimony regarding overtime may still be considered potentially relevant support for McDonough's other claims.

Continuing with the allegations of verbal harassment, McDonough argues, albeit in a footnote, that Tierney and Talley also "yelled and screamed at [him] on occasion." (Pl.'s Resp., Dkt. No. 251, at 23, n. 10.) McDonough claims that Tierney harassed him "by screaming and yelling at him, slamming doors on him, and calling him a `motherfucker,'" (Pl.'s Add'l SOF, Dkt. No. 252, ¶ 49), and that Tierney "also refused to do anything about Briatta's harassment" (Pl.'s Resp., Dkt. No. 251, at 23, n. 10; Pl.'s Add'l SOF, Dkt. No. 252, ¶ 50). Randazzo testified that Talley showed up and started "hollering or screaming" at McDonough at some of the job sites, conduct which Randazzo described as "verbal harassing." (Pl.'s Ex. W, Dkt. No. 271, 112:12-113:15.) These allegations do not rise to the same level as the allegations set forth against Briatta, as the "yelling" or "screaming" described was not particularly pervasive or severe. Furthermore, unlike the case with Briatta, none of the content of Tierney and Talley's alleged comments infers a causal link between McDonough's protected speech and the supposed harassment. Therefore, McDonough's claims based on verbal harassment by Tierney and Talley cannot survive summary judgment.

In addition to the verbal harassment, McDonough claims he was "constantly moved from crew to crew," which was "harmful and less desirable because (1) he would be moved off of a crew just before the crew was to get overtime; (2) he never knew what crew he would be on until the beginning of his shift; and (3) it made it less likely that he would get promotions or `acting up' pay." (Pl.'s Resp., Dkt. No. 251, at 25; Pl.'s Add'l SOF, Dkt. No. 252, ¶ 51.) McDonough states that Tierney and Briatta were responsible for moving him from crew to crew. (Pl.'s Resp., Dkt. No. 251, at 25; Pl.'s Add'l SOF, Dkt. No. 252, ¶¶ 50-53.) Without more concrete information regarding which moves were caused by which defendant, the timing of those moves, and the circumstances of those moves, McDonough simply has not presented enough evidence for this particular claim to survive a motion for summary judgment.

In summary, in considering McDonough's First Amendment claims based on alleged harassment and crew transfers, summary judgment is denied with respect to the purported harassment committed by Briatta, and summary judgment is granted with respect to the purported harassment committed by Tierney and Talley, as well as the crew transfers allegedly caused by Tierney and Briatta.

4. Discipline

McDonough cites three instances of being disciplined: (1) he was given "a written reprimand on April 16, 2003; (2) he was given a one-day suspension on January 27, 2004; and (3) he was given a three-day suspension in March 2004." (Pl.'s Resp., Dkt. No. 251, at 25.) Each of these events occurred prior to May 16, 2004. They are therefore all time-barred, and summary judgment must be granted for Defendants with respect to McDonough's First Amendment claims based on these disciplinary actions.

In addition to these time-barred instances of discipline, McDonough alleges that "Tierney purposefully lost between two to ten grievances and letters that McDonough gave him." ( Id. at 27.) It is not clear when these grievances may have been lost, what they were in relation to, or how the losses may have been caused by McDonough's protected speech. McDonough's First Amendment claim cannot be supported on the basis of these supposedly lost grievances.

5. IGO Investigation and Termination

Career employees of the City are required to be "actual residents" of the City of Chicago. (Defs.' Joint SOF, Dkt. No. 237, ¶ 93.) Non-compliance with this requirement is grounds for a City employee's termination of employment. ( Id.) On May 30, 2003 and August 15, 2003, the IGO opened two separate investigative files, Nos. 03-0943 and 03-1424, after receiving two separate anonymous tips that McDonough did not live at the Chicago address he had provided to the City (on West Catalpa Avenue). ( Id. ¶¶ 93-94.) In addition to those anonymous tips, at some point in 2003 or 2004, someone left an anonymous handwritten note on Tierney's desk indicating that McDonough lived at a particular address outside of the city, information which Tierney relayed to Rice, then Commissioner of the Water Department, who in turn shared the information with Vroustouris, then Inspector General. ( Id. ¶ 95.) Beginning in August 2003 and for several months thereafter, IGO investigators performed numerous surveillances of two addresses: the West Catalpa Avenue address in Chicago, and an Everett Street address in Des Plaines, where McDonough was alleged to live with his wife and children. ( Id. ¶ 96.) After fifteen surveillances of the West Catalpa Avenue address and eighteen surveillances of the Everett Street address, investigators never observed McDonough or a vehicle owned by him at the West Catalpa Avenue address, but they observed McDonough coming or going from the Everett Street address during each instance of surveillance of that location. ( Id. ¶ 96.)

McDonough had meetings scheduled with IGO representatives on October 6, 14, and 18, 2004, though each of those meetings was rescheduled based on McDonough's requests to have union representation and/or an attorney present. ( Id. ¶¶ 97-100.) McDonough appeared on October 20, 2004 with his union representative, but after being told that he could not use a tape-recorder to record the proceedings (where a court reporter was already present), he left the meeting. ( Id. ¶ 101.) McDonough and his union representative appeared again on October 27, 2004, at which time McDonough answered some questions, but refused to provide answers to other questions, responded with "no comment," or claimed not to remember the information. ( Id. ¶¶ 102-03.) Also on October 27, 2004, the City placed McDonough on paid administrative leave, pending the outcome of the IGO's investigation. ( Id. ¶ 105.) After completing its investigation, the IGO concluded McDonough had violated the City's residency requirement by residing in Des Plaines, and that McDonough had violated various personnel rules by providing false answers and failing to cooperate with the investigation, among other things. ( Id. ¶ 106.) "Vroustouris issued a memo on February 1, 2005 to the Mayor's Office and other appropriate City departments stating these conclusions and recommending that McDonough be discharged for the violations." ( Id.) The Law Department then prepared a Statement of Charges against McDonough, which was provided, read, and explained to McDonough in March 2005. ( Id. ¶ 108.) On March 28, 2005, McDonough wrote a two-page letter to Rice, in which McDonough objected to the charges and complained about preferential treatment allegedly given to "people with clout." ( Id. ¶¶ 109-10.) Rice then followed the Law Department's recommendation favoring termination of McDonough's employment, and made the decision to terminate McDonough's employment. ( Id. ¶ 111.) This decision was communicated to McDonough via a letter dated April 1, 2005. ( Id.)

The next day, April 2, 2005, the Chicago Sun-Times ran an article stating that "McDonough contended the city fired him for talking to the Sun-Times and federal prosecutors about waste and corruption in the Hired Truck program." ( Id. ¶ 112.) This was the first time that McDonough's name appeared in the press in connection with the Hired Trucks scandal. ( Id.)

McDonough appealed his termination to the City's Personnel Board. ( Id. ¶ 113.) After eleven nonconsecutive days of hearings between June and October of 2005, Hearing Officer Carl McCormick found in favor of McDonough on the residency charge, concluding that the surveillance of the residence on West Catalpa Avenue was "fatally flawed" and "not reliable," and that McDonough may have entered the residence on West Catalpa Avenue through the back door on some or all of the instances when IGO investigators were observing that address. ( Id. ¶¶ 113, 118; Defs.' Joint Materials in Supp. of Summ. J., Dkt. No. 236, Ex. 60 at 1444.) McCormick also concluded that the City had proved by a preponderance of the evidence that McDonough failed to cooperate with the IGO's investigation, and found that the evidence did not support any finding that the investigation or termination of McDonough was retaliatory. (Defs.' Joint SOF, Dkt. No. 237, ¶¶ 119, 121.) McCormick recommended that McDonough receive a six-month suspension without pay, but that his discharge be rescinded and he receive back pay for the balance of the nine-and-a-half months since his termination, and the Personnel Board adopted these recommendations on January 24, 2006. ( Id. ¶ 122.)

The City Defendants contend that McDonough is barred from raising this claim on the basis of collateral estoppel, since the issue of retaliation was addressed before the Hearing Officer. (City Defs.' Mem. in Supp. of Summ. J., Dkt. No. 235, at 32-34; City Defs.' Reply, Dkt. No. 291, at 15-17.) In order for a prior ruling to have collateral estoppel effect,

four elements must be met: "(1) the issue sought to be precluded must be the same as that involved in the prior litigation, (2) the issue must have been actually litigated, (3) the determination of the issue must have been essential to the final judgment, and (4) the party against whom estoppel is invoked must be fully represented in the prior action."

H-D Michigan, Inc. v. Top Quality Service, Inc., 496 F.3d 755, 760 (7th Cir. 2007) (citations omitted). McDonough contends that collateral estoppel does not apply because the first and third elements are missing. (Pl.'s Resp., Dkt. No. 251, at 28.) The City Defendants assert that those elements have been satisfied. Specifically addressing the third element, the City Defendants explain,

In short, the Hearing Officer considered and rejected McDonough's retaliation arguments because McDonough interposed them as a defense to the claim that he failed to cooperate with the IGO. The Hearing Officer could not have made his ultimate ruling that McDonough unreasonably failed to cooperate without first addressing McDonough's argument that his failure to cooperate was excusable because the investigation was retaliatory. Accordingly, the resolution of the retaliation issue was essential to the final judgment in the prior action. . . .

(City Defs.' Reply, Dkt. No. 291, at 18) (emphasis in original).

It is undisputed that the Hearing Officer addressed McDonough's retaliation argument, stating that "[t]he evidence does not support the conclusion of finding of retaliation." (Defs.' Joint Materials in Supp. of Summ. J., Dkt. No. 236, Ex. 60.) However, it is not clear that this issue was essential to the final judgment that McDonough failed to cooperate with the IGO investigation. It is possible that the Hearing Officer could have concluded that McDonough failed to cooperate with the investigation, even if that investigation was found to be retaliatory. A finding of a retaliatory motive does not necessarily mean that McDonough's failure to cooperate was reasonable or excusable. Therefore, the doctrine of collateral estoppel does not apply, and this court continues with its analysis of McDonough's First Amendment claim based on the residency investigation and McDonough's subsequent termination.

McDonough contends that Briatta, Tierney, Rice, and Vroustouris each had a role in this process, and the court separately examines each of these defendants.

a. Briatta

With respect to Briatta, McDonough claims that Briatta told Randazzo he wanted to get McDonough fired. (Pl.'s Resp., Dkt. No. 251, at 28 (citing Pl.'s Add'l SOF, Dkt. No. 252, ¶ 56).) However, wanting McDonough fired and causing McDonough to be fired are separate things. McDonough admits that Briatta had no part in causing the IGO surveillance and had no part in the decision to place McDonough on paid leave for the winter of 2004/2005. (Pl.'s Resp. to Briatta's SOF, Dkt. No. 249, ¶¶ 25, 26.) McDonough has presented no evidence to suggest that Briatta participated in or caused the investigation or termination, therefore McDonough's First Amendment claim against Briatta cannot be based on this series of events.

b. Tierney

McDonough has alleged that Tierney "ordered [him] to participate in the pretextual investigation of the purported residence violations." (Am. Compl., Dkt. No. 188, ¶ 39(c).) Tierney claims that he "merely received a memorandum from the Assistant Commissioner requiring Tierney to direct McDonough to report to the [IGO]." (Tierney's Mem. in Supp. of Summ. J., Dkt. No. 239, at 11; Defs.' Joint SOF, Dkt. No. 237, ¶ 153.) The other role that Tierney played in this process was that he received an anonymous handwritten note regarding McDonough's residency, and he relayed this information to Rice, who then shared the information with Vroustouris. (Defs.' Joint SOF, Dkt. No. 237, ¶ 95.) McDonough points out that Tierney never bothered to ask McDonough about the note or McDonough's residence, but simply passed the information along, which McDonald contends Tierney would not have done but for McDonough's protected speech. (Pl.'s Resp., Dkt. No. 251, at 30-31.) In support of his position, McDonough points to Randazzo's testimony that Tierney asked Randazzo to monitor McDonough because he wanted to "get" him. (Pl.'s Ex. W, Dkt. No. 271, 130:2-134:10.)

Even accepting that Tierney wanted McDonough fired, the court again notes that wanting someone fired and causing them to be fired are not the same. Tierney did not make the decision to investigate McDonough, he did not participate in the investigation, and he did not participate in the decision to discharge McDonough. In sharing the anonymous note and instructing McDonough to participate in the investigation, Tierney did not cause or initiate anything, but simply acted as a conduit for the information. To contend that Tierney should have simply ignored, hidden, or disregarded the anonymous note would be unreasonable. Based on the evidence provided, Tierney's involvement in this process was simply too limited for a reasonable jury to conclude that he caused the investigation and termination, let alone that he did so to retaliate against McDonough for protected speech.

c. Rice

McDonough also claims that Rice retaliated against him for engaging in constitutionally-protected speech by initiating the IGO investigation and by approving McDonough's subsequent termination. It is undisputed that Rice relayed the information contained in the anonymous handwritten note from Tierney to Vroustouris, and that Rice was the individual who ultimately made the decision to terminate McDonough's employment following the conclusion of the IGO investigation. (Defs.' Joint SOF, Dkt. No. 237 ¶¶ 95, 111.)

McDonough stresses that, like Tierney, Rice never bothered to ask McDonough about the note or his residence before reporting the information contained in the anonymous handwritten note to Vroustouris. (Pl.'s Resp., Dkt. No. 251, at 30.) It is McDonough's contention that Rice only reported this information because he was targeting McDonough for his protected speech, as evidenced by the fact that Rice never reported any wrongdoing concerning the Hired Trucks issue or Donald Tomczak to the IGO, despite his knowledge of these problems. ( Id. at 30-31 (citing Pl.'s Add'l SOF, Dkt. No. 252, ¶ 60).) It is undisputed that Rice suspected McDonough was "Deep Water," even before his identity was revealed in the Chicago Sun-Times on April 2, 2005. (Defs.' Joint Resp. to Pl.'s Add'l SOF, Dkt. No. 292, ¶ 63.)

Rice denies any implication that he knew about the Hired Trucks issue or wrongdoing by Tomczak (Defs.' Joint Resp. to Pl.'s Add'l SOF, Dkt. No. 292, ¶ 60); however, the court views this disputed question of fact in the light most favorable to McDonough and accepts that Rice did know about the Hired Trucks issue during the relevant time period. ( See also Pl.'s Add'l SOF, Dkt. No. 252, ¶ 6.)

One problem with this line of argument is that it is lacking foundation in the record. McDonough cites the testimony of an unidentified individual (presumably Vroustouris) at a September 7, 2005 hearing before the City's Personnel Board, in which the witness states that he or she does not recall whether Rice brought the Hired Trucks issue to the witness's attention in April 2003. (Pl.'s Add'l SOF, Dkt. No. 252, ¶ 60 (citing Pl.'s Ex. C at 1064).) The City Defendants have objected to this testimony as lacking in foundation and personal knowledge. (Defs.' Joint Resp. to Pl.'s Add'l SOF, Dkt. No. 292, ¶ 60.) Without more identifying information about this witness, the court finds there is insufficient evidence in the record to allow a fact-finder to draw a reasonable inference that Rice failed to report McDonough's complaints about the Hired Trucks to the IGO.

Moreover, even accepting that Rice did not report McDonough's complaints about the Hired Trucks to the IGO, this does not necessarily or reasonably suggest that Rice's handling of the anonymous tip was motivated by a retaliatory animus. There is no evidence in the record about the manner in which Rice would normally treat an anonymous tip regarding a possible violation of the residency requirement. In other words, the jury could only speculate that Rice treated the anonymous tip about McDonough differently than he would have treated any other anonymous tip about a residency violation, and that he did so because of McDonough's protected speech. Because the court's "favor toward the nonmoving party does not extend to drawing `[i]nferences that are supported by only speculation or conjecture,'" Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010) (citations omitted), the court finds there is insufficient evidence to support McDonough's claim that Rice reported the anonymous tip to Vroustouris only because of his desire to retaliate against McDonough for his protected speech.

Similarly, McDonough has produced no evidence to contradict the evidence that Rice made the decision to terminate McDonough's employment "because of the Law Department's recommendation favoring termination" and "cannot remember a time during his tenure as Commissioner when he went against a Law Department recommendation." (Defs.' Joint SOF, Dkt. No. 237, ¶ 111 (citing Defs.' Joint Materials in Supp. of Summ. J., Dkt. No. 236, Ex. 4 at 204:16-207:6).) In short, McDonough has not provided sufficient evidence for a reasonable jury to infer that the aforementioned conduct would not have occurred but for McDonough's protected speech.

d. Vroustouris

In his position as the Inspector General, Vroustouris was responsible for opening the investigations into McDonough's residency in May 2003 and August 2003, and was ultimately responsible for the surveillance of the West Catalpa address in Chicago and the Everett Street address in Des Plaines, the October 2004 interview of McDonough, and his recommendation to the Mayor's Office and other appropriate City departments that McDonough be discharged for violating the residency requirement and for failing to cooperate with the IGO investigation.

McDonough points to instances of supposedly suspicious timing to support a causal link between McDonough's complaints and Vroustouris' conduct. McDonough states that "[o]n August 15, 2003, ten days after McDonough talked to Mark Brown of the Sun-Times about Hired Trucks, Vroustouris created another case initiation report concerning McDonough's residency, even though the first investigation had been closed for lack of evidence." (Pl.'s Resp., Dkt. No. 251, at 30.) However, regardless of when McDonough may have talked to the press, there is no evidence showing when Vroustouris actually became aware that this communication had occurred. Given the rational explanation that the second investigation was opened in response to an anonymous tip received on August 15, 2003 ( see Defs.' Joint Materials in Supp. of Summ. J., Dkt. No. 236, Ex. 59), this 10-day period does not rise to the level of suspicious.

McDonough's second point regarding allegedly suspicious timing is that "[j]ust two weeks prior to the day that McDonough was placed on administrative leave (October 27, 2004), McDonough made two complaints about Hired Trucks to Vroustouris. . . ." (Pl.'s Resp., Dkt. No. 251, at 31) (citations omitted). However, the decision to place McDonough on administrative leave was the direct result of McDonough's residency interview with the IGO, which was originally scheduled to take place on October 6, 2004, more than two weeks prior to the date McDonough was placed on administrative leave. In other words, McDonough made these two Hired Truck complaints after the residency interview was to take place, so the Hired Truck complaints could not have been said to have caused the residency interview or the resultant administrative leave.

In addition to timing, McDonough argues that Vroustouris took exceptional interest in McDonough's case, claiming,

In contrast to the hundreds of hours that Vroustouris and his investigators spent on McDonough's residency case, Vroustouris never did anything to investigate any Hired Truck complaints. In fact, every time he got a complaint, he created a report and did nothing, or he simply referred the matter back to the department (Water, Transportation) that the complaint was about in the first place.

( Id. at 30) (citations omitted). The City Defendants assert that there was nothing unusual about McDonough's residency investigation:

McDonough was one of 283 individuals against whom residency complaints were made to the IGO from 2002 to 2004. Of the resulting investigations by IGO, 22 of these 283 individuals either resigned or retired after being surveilled and interviewed by the IGO or were discharged or resigned after being presented with charges seeking their termination.

(Defs.' Joint SOF, Dkt. No. 237, ¶ 104 (citing Defs.' Joint Materials in Supp. of Summ. J., Dkt. No. 236, Ex. 63).) McDonough objects to the description that the hours spent on the McDonough investigation were "comparable" to other cases, and points out that the IGO spent more hours on McDonough's case than on 15 of the aforementioned 22 cases. (Pl.'s Resp. to Defs.' Joint SOF, Dkt. No. 250, ¶ 104.) According to the report provided, the number of hours spent on any individual case ranged from 68 to 437. (Defs.' Joint Materials in Supp. of Summ. J., Dkt. No. 236, Ex. 63.) The 285 hours spent on McDonough's case falls roughly within the middle of this range. Moreover, there is no requirement that the hours spent on McDonough's case be exactly the mean, mode, or median of the given set. The IGO investigation was instigated by three anonymous tips, which the IGO thereafter investigated. The evidence presented is not sufficient for a reasonable jury to conclude that Vroustouris or anyone in his office treated McDonough's case any differently than any other case, or that such treatment was motivated by a desire to retaliate against McDonough for his protected speech.

In addition to trying to draw inferences from investigations that were allegedly different from his, McDonough also looks to evidence regarding investigations that he claims were similar to his. McDonough points to the testimony of Michael Fedanzo to support the assertion that the "IGO and City have used residency investigations to retaliate against other City workers who were outspoken about governmental waste and corruption." (Pl.'s Add'l SOF, Dkt. 252, ¶ 75 (citing Pl.'s Ex. KK, Dkt. No. 276).) Fedanzo claims to have worked as a consultant on several other cases involving residency investigations, and he stated, "The City of Chicago went after people, for lack of a better term, who were targeted as troublemakers." (Pl.'s Ex. KK, Dkt. No. 276, 34:17-24, 37:15-17.) Defendants object to this testimony, arguing, "Fedanzo is not qualified to give expert testimony, his testimony was based entirely on speculation, hearsay, and his unfounded personal opinions, and he admitted to having a severe personal bias against Vroustouris and the IGO." (Defs.' Joint Resp. to Pl.'s Add'l SOF, Dkt. No. 292, ¶ 75.) This court does not have any information, other than Fedanzo's testimony, regarding these other cases in which the City allegedly used residency investigations to go after whistleblowers, so it is unclear whether Fedanzo's generalization is entirely accurate, or to what extent those cases may or may not mirror McDonough's. However, even assuming that there were cases in the past in which the City targeted employees who complained about waste and corruption, there is still a lack of evidence that there was any such targeting or unfair treatment in McDonough's case. As previously mentioned, McDonough is no longer pursuing his Monell claim against the City, thus limiting the relevance of any evidence of a pattern or practice of retaliation.

To conclude, summary judgment must be granted for Defendants with respect to McDonough's First Amendment claim to the extent that the claim is based on the IGO residency investigation and subsequent termination of McDonough's employment.

6. Adverse Conditions of Reinstatement

The final retaliatory action claimed by McDonough is that, after reinstatement, he was assigned to the Central District, which was farther from his home on Catalpa than the North District, where he had previously been assigned. (Pl.'s Resp., Dkt. No. 251, at 32.) McDonough names Talley and Murphy as the parties responsible for this assignment. ( Id. at 32.)

The City Defendants explain the reason for McDonough's assignment to the Central District as follows:

Before McDonough returned to work in 2006, Murphy asked Talley where Talley's Bureau was most in need of a plumber. Talley replied that it was the Central District; Central's leaders had been asking Talley for more plumbers for some time. At the time Murphy asked this question and Talley answered it, Talley did not know that Murphy's question had any relationship to McDonough. Murphy then decided to reinstate McDonough to Central based on its greater need for plumbers.

(City Defs.' Mem. in Supp. of Summ. J., Dkt. No. 235, at 35-36 (citations omitted).) Attempting to rebut this explanation, McDonough states that there was a need for plumbers in the North District, as evidenced by the fact that there were open jobs in all three districts, including the North District. (Pl.'s Resp., Dkt. No. 251, at 33; Pl.'s Add'l SOF, Dkt. No. 252, ¶ 90.)

The City Defendants did not assert that there was no need for plumbers in the North District, but simply that the greatest need for plumbers existed in the Central District. To provide additional evidence showing that the North District's need for plumbers was not that great, Talley states that from February 2006 to June 2008, he did not transfer any plumber to the North District because of staffing needs, and that the only plumber that was transferred (sometime in 2006) was transferred as part of a settlement with the union, not as a result of staffing needs. (Defs.' Joint SOF, Dkt. No. 237, ¶ 130.) McDonough admits this fact. (Pl.'s Resp. to Defs.' Joint SOF, Dkt. No. 250, ¶ 130.)

The City Defendants' explanation for McDonough's assignment to the Central District is rational and supported by the record, and McDonough has not provided sufficient evidence to allow a reasonable jury to conclude that the actual reason for the Central District assignment was retaliation for McDonough's protected speech.

D. Qualified Immunity

Tierney, Rice, Murphy, Vroustouris, and Talley all argue that they are entitled to qualified immunity, because it cannot be shown that their conduct was objectively unreasonable in light of then-prevailing law. (City Defs.' Mem. in Supp. of Summ. J., Dkt. No. 235, at 42-44; City Defs.' Reply, Dkt. No. 291, at 26-27; Tierney's Mem. in Supp. of Summ. J., Dkt. No. 239, at 15; Tierney's Reply, Dkt. No. 288, at 15.) See Anderson v. Creighton, 483 U.S. 635, 639 (1987) ("whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action"). Because this court has concluded that summary judgment is appropriately granted in favor of each of these individual defendants on McDonough's First Amendment claim, the court need not address the issue of qualified immunity with respect to these defendants.

Briatta, the only defendant remaining for McDonough's First Amendment claim, did not address the issue of qualified immunity in his filings. Accordingly, the court finds that Briatta has waived this defense. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) ("if [defendants] felt entitled to terminate the proceedings because of qualified immunity, they were required to bring that issue to the district court's attention").

III. Count IV — Violation of Shakman Consent Decree

Count IV of McDonough's Amended Complaint alleges a violation of the Shakman Consent Decree. (Am. Compl., Dkt. No. 188, ¶¶ 61-72.) The 1972 Consent Decree entered in the Shakman case (69 CV 2145) prohibits the City from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." O'Sullivan v. City of Chicago, 396 F. 843, 848 (7th Cir. 2005). "Once a plaintiff shows this, the burden shifts to the defendant to show it would have made the same decision notwithstanding the protected conduct." Shanahan v. City of Chicago, 82 F.3d 776, 780 (7th Cir. 1996) (citing Garrett v. Barnes, 961 F.2d 629, 632 (7th Cir. 1992)).

McDonough focuses on one category of allegedly retaliatory conduct addressed above, asserting that "the City and Tomczak based or affected the promotions that he applied for upon a political reason or factor." (Pl.'s Resp., Dkt. No. 251, at 34.) A list of the relevant promotions is provided earlier in this opinion.

The City Defendants argue that the applicable statute of limitations excludes all but one of the promotion claims. (City Defs.' Mem. in Supp. of Summ. J., Dkt. No. 235, at 50; City Defs.' Reply, Dkt. No. 291, at 27.) The Seventh Circuit has held that "the 180-day period of limitations established by Title VII applies to contempt proceedings under the Shakman decree." Smith v. City of Chicago, 769, F.2d 408, 413 (7th Cir. 1985). Accordingly, the City Defendants argue, any claims based on conduct that occurred prior to November 16, 2005 are time-barred. As previously discussed, McDonough has not persuaded this court that the continuing violation doctrine should apply, therefore the only promotion on which McDonough can base his Shakman claim is his April 24, 2006 bid for the position of Assistant Superintendent, a position which was never filled. (Defs.' Joint SOF, Dkt. No. 237, ¶ 75.)

Because there is no evidence that the City considered any political factors in the decision not to promote McDonough to this position, to leave this position open, and to eventually eliminate this position, judgment must be entered for the City with respect to Count IV.

IV. Count V — Illinois False Claims Act Retaliation

Count V of McDonough's Amended Complaint alleges a claim for retaliation under the Illinois False Claims Act. (Am. Compl., Dkt. No. 188, ¶¶ 73-76.) This claim is brought against the City. ( Id.) The Illinois False Claims Act prohibits an employer from retaliating against an employee for having engaged in whistleblowing activities. 740 ILCS 175/4(g).

Once more, the City Defendants argue that McDonough's claim is at least partially barred by the statute of limitations. Citing to 745 ILCS § 10/8-101(a), the City Defendants point out that the applicable statute of limitations is one year, thus precluding this claim to the extent that it is based on conduct occurring prior to May 16, 2005. (City Defs.' Mem. in Supp. of Summ. J., Dkt No. 235, at 53.) Again, McDonough responds by arguing that the continuing violation doctrine applies, but the court rejects this argument for the reasons previously stated. To the extent the claim is based on conduct prior to May 16, 2005, it is time-barred.

With respect to conduct that occurred within the statute of limitations period, we look to the elements of this claim. In order to prevail, McDonough must show that "(1) his actions were taken `in furtherance of' an [Illinois False Claims Act] enforcement action and were therefore protected by the statute; (2) that the employer had knowledge that he was engaged in this protected conduct; and (3) that the [adverse employment action] was motivated, at least in part, by the protected conduct." Brandon v. Anesthesia Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 944 (7th Cir. 2002).

In examining Count I, the court concluded that the only allegedly retaliatory conduct that a reasonable jury could conclude was caused by McDonough's protected speech is the alleged harassment committed by Briatta. McDonough asserts that this harassment occurred on a regular basis until October 2004. (Pl.'s Add'l SOF, Dkt. No. 252, ¶ 47.) As the end date of the alleged harassment precedes the applicable statute of limitations date (May 16, 2005), this conduct cannot support McDonough's claim under the Illinois False Claims Act.

CONCLUSION

For the foregoing reasons, the court rules on the pending motions as follows. The City Defendants' motion for summary judgment [234] and defendant Tierney's motion for summary judgment [238] are each granted in their entirety. Defendant Briatta's motion for summary judgment [230] is granted in all parts except it is denied with respect to Count I, the First Amendment claim, to the extent that the claim relates to alleged harassment of plaintiff committed by defendant Briatta. The parties are encouraged to discuss settlement. The case is set for report on status at 9:00 a.m. on October 12, 2010.