DELAPAZ v. RICHARDSON (February 14, 2011)

Pablo Delapaz and Michael Sarkauskas are both employees of the City of Chicago's Department of Streets and Sanitation (DSS). They are also both supporters of the Hispanic Democratic Organization. In 2001 in 2002, DSS Commissioner Al Sánchez appointed both men to temporary acting foremen positions in the Department. Michael Picardi replaced Sanchez as Commissioner several years later. Delapaz and Sarkauskas still occupied their temporary positions. Shortly after Picardi became Commissioner, he ordered the elimination of all acting foreman positions and the return of those employees to their prior positions. When Deputy Commissioner Richardson advised Delapaz that he would have to return to his prior position, he also remarked: "Your guy is gone." Both Delapaz and Sarkauskas assumed their prior positions in the summer of 2005, as did all the other acting foremen. Later that year, the Richardson appointed another man as an acting Foreman for snow removal purposes. That man was a contributor and volunteer for Chicago Alderman Richard Mell. Delapaz and Sarkauskas filed suit against Deputy Commissioner Richardson under § 1983, alleging that he violated their First Amendment rights of free association by demoting them because of their HDO affiliation. Judge Marovich (N.D. Ill.) granted summary judgment to Richardson. Delapaz and Sarkauskas appeal.

In their opinion, Circuit Judges Flaum and Evans and District Judge McCuskey affirmed. The Court agreed that a public employee’s firing or demotion because of his or her political affiliation is a First Amendment violation. But to state a claim against a particular defendant, a plaintiff must establish that the defendant participated or caused the deprivation. In their summary judgment response pursuant to local rule, plaintiffs admitted that Picardi ordered the demotions, not Richardson. Courts are entitled to rely on these admissions. In light of the admission, the plaintiffs cannot establish Richardson's liability. The Court did cite another reason why they could not prevail: they waived the Richardson liability argument by not addressing it in their response brief in the district court. And the Court cited yet a third reason why they could not prevail: the merits. The only evidence the plaintiffs presented that Richardson even knew of their HDO affiliation is the "your guy" remark he made to Delapaz, an apparent reference to Sanchez. But they presented no evidence that Sanchez was even affiliated with HDO or, if he was, that Richardson knew about it. And they presented no evidence at all that Richardson knew of Sarkauskas’ HDO affiliation -- only that the timing of his demotion (two weeks after Delapaz) was suspicious. Without a triable issue of fact on whether he knew of their party affiliation, Richardson is entitled to summary judgment.