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Police Cadet's Claim Fails for Lack of Evidence that Allegedly Discriminatory Decision Was Made by Policymaker or the Result of Discriminatory Policy or Custom

Thursday, October 27, 2011

Palka v. City of Chicago, Nos. 09-CV-2042, 09-CV-3796, 2011 BL 268396 (7th Cir. Oct. 18, 2011) The U.S. Court of Appeals for the Seventh Circuit held that Peter Palka's action against the City of Chicago, alleging discrimination based on Peter's ethnic origin under 42 U.S.C. § 1983, could not survive summary judgment because Palka failed to adduce any evidence that the decision to terminate him from the Chicago Police Academy was made by a municipal policymaker with final authority or that the City maintained a policy or custom of discrimination. The Court also found that the action filed by Peter and his father, Tadeuz Palka, a Cook County Deputy Sheriff, against the City and Cook County alleging discrimination based on their ethnic origin in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., was barred on res judicata grounds because it was based on the same set of operative facts as Peter's prior action against the City and Tadeusz prior § 1983 action against the County alleging constitutional due process claims.

Son Expelled from Police Academy; Father Accused of Misconduct

Peter was terminated from the Chicago Police Academy in February 2007 because he violated departmental rules and repeatedly failed the firearms exam. Alleging that Peter was discriminated against because he was Polish, Tadeusz asked Matthew Tobias, the head of the Police Academy, to reinstate his son. Tobias refused. In May 2007, an unidentified caller with an Eastern European accent called the school that Tobias's children attended and asked disturbing questions about the children. Suspecting that Tadeusz had made the call, Tobias requested that the Cook County Sheriff began a formal investigation. Tadeusz took early retirement shortly before a disciplinary hearing on the matter was scheduled to proceed.

Seventh Circuit Affirmed Dismissal of Tadeusz's Prior Action against City and County

Tadeusz then sued Cook County, the City of Chicago, and others asserting various constitutional claims under § 1983. The Seventh Circuit affirmed the dismissal of that suit on the pleadings. See Palka v. Shelton, 623 F.3d 447 7th Cir. 2010) (Palka I), discussed in Bloomberg Law Reports, Labor & Employment, Vol. 4, No. 42 (Oct. 18, 2010).

District Court Dismissed Peter's Action against City and Tobias

Shortly after Tadeusz filed his complaint in Palka I, Peter filed a § 1983 suit against the City and Tobias, alleging discrimination on the basis of his Polish ethnicity. The district court held that the City could not be held liable because Peter failed to adduce any evidence that Tobias was a municipal policymaker with final authority or that the City maintained a policy or custom of discrimination, as required for municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Accordingly, the district court allowed only the claims against Tobias to proceed. Palka v. City of Chicago, No. 07-CV-5211, 2008 BL 173949 (N.D. Ill. Aug. 20, 2008). After a magistrate judge held that Peter could not seek reinstatement as a remedy because Tobias was sued in his individual capacity, Peter moved for voluntary dismissal under Federal Rule of Civil Procedure 41(a). The district court dismissed the claim against Tobias without prejudice.

District Court Dismissed Palkas' Title VII Suit on Res Judicata Grounds

While Tadeusz's appeal of the dismissal of his § 1983 case was in its early stages and Peter's § 1983 case was still pending in district court, Tadeusz and Peter received a right to sue letter from the Equal Employment Opportunity Commission (EEOC) in connection with their discrimination claims against their former employers. The Palkas then jointly filed a third suit against the City and County alleging national origin discrimination in violation of Title VII based on the same facts as their individual § 1983 suits. The district court dismissed the Title VII action on res judicata grounds.

Peter's § 1983 Discrimination Claims Not Supported by Required Evidence

The Court first considered whether it had jurisdiction to hear Peter's appeal of the dismissal of his § 1983 claim against the City and the magistrate judge's order excluding reinstatement as a remedy against Tobias in the same action. As a preliminary matter, the Seventh Circuit noted that Peter's claim against Tobias, which was dismissed without prejudice, was now time barred. Thus, while the Court was barred from reviewing the magistrate judge's interlocutory order excluding reinstatement as a remedy for Peter's claim against Tobias, the fact that Peter could not refile his claim against Tobias meant that the dismissal of Peter's claims against the City was "final" and that the Court had jurisdiction over Peter's appeal of the order dismissing his § 1983 claim against the City. Turning to the merits, the Court noted that, for the City to be liable, Peter had to establish that Tobias was the final policymaking authority or was acting under a City policy, practice, or custom. In support of his claim, Peter relied on his own testimony that Tobias discriminated against him, a similar allegation by Wojciech Czarniecki, another Polish officer who was terminated by Tobias, and statistics regarding recruits Tobias terminated. The Court rejected the statistical evidence as "worthless"' because it was simply data regarding the gender and race of Police Academy recruits without any context. Further, the Court noted that a different Seventh Circuit panel had affirmed the dismissal of Czarniecki's discrimination claim against the City. See Czarniecki v. City of Chicago, 633 F.3d 545 (7th Cir. 2011), discussed in Bloomberg Law Reports, Labor & Employment, Vol. 5, No. 5 (Jan. 31, 2011). In any event, the Court observed, two alleged instances of discrimination did not constitute a widespread pattern or practice sufficient to subject the City to liability. Moreover, the Court determined that Peter's contention that Tobias was a final policymaker was contradicted by evidence that Tobias's decisions were subject to review and implementation by a higher authority. Although Peter also alleged that the City could be held liable because the supervisors who approved Tobias's decision shared his discriminatory animus, the Court found that Peter offered no evidence in support of the claim. Thus, the Court held that the district court properly entered summary judgment for the City.

Title VII Claims Barred on Res Judicata Grounds

Turning to the district court's dismissal of the Palkas' Title VII action on res judicata grounds, the Ninth Circuit explained that for res judicata to apply, there had to be: (1) an identity of parties; (2) a final judgment on the merits; and (3) an identity of the cause of action (as determined by comparing the suits' operative facts). The Court found that identity of the parties existed because Peter sued the City in both his cases, and Tadeusz sued the County in both his actions. Moreover, the Seventh Circuit determined that there was an identity of the causes of action because the Title VII claims were premised on the Palkas' termination by their respective municipal employers — the same transactions at issue in their § 1983 cases. Further, the Court concluded that there was a final judgment on the merits in the § 1983 cases because, although Peter's claim against Tobias was dismissed without prejudice, his claim against the City was decided in the City's favor on the merits, and Tadeusz's earlier claim against the County was dismissed with prejudice. The Palkas argued that they could not have raised their Title VII claims in their prior actions because they were waiting for right-to-sue letters from the EEOC. The Seventh Circuit, however, has flatly rejected this argument. See Czarniecki, 633 F.3d at 550-51. Concluding that this was a "quintessential example of claim splitting in duplicative lawsuits," the Court held that the district court properly entered judgment for the City and County on res judicata grounds.

Options to Preserve Title VII Claims

The Court identified five options that the Palkas could have pursued to try to preserve their Title VII claims, including seeking a stay of their § 1983 actions while awaiting their right-to-sue letters or asking the EEOC to accelerate the administrative process, but concluded that their failure to pursue any of their options doomed those claims. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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