Opinion
No. 99 C 2706
November 7, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Sharon Deshazer has filed a three-count amended complaint against defendants Stephanie Wright-Griggs ("Wright-Griggs"), Chief Operating Officer of Provident Hospital ("Provident"), and Cook County of Illinois, alleging that defendants violated plaintiffs due process rights under 42 U.S.C. § 1983 and breached her implied employment contract under Illinois law. Central to plaintiffs three claims is her assertion that Provident's "Disciplinary Action Policy and Procedure" ("the Policy") created an implied employment contract. Assuming this, plaintiff asserts in Count I that Wright-Griggs violated plaintiffs substantive and procedural due process rights by terminating plaintiff in violation of the Policy. In Count II, plaintiff seeks to hold Cook County liable for that alleged deprivation of rights, claiming that the county's policy and custom were the "moving force" behind plaintiffs termination in violation of the Policy. Finally, in Count III plaintiff alleges breach of contract against Cook County for discharging plaintiff in violation of the substantive and procedural rights guaranteed in the Policy.
Defendants have filed a motion for summary judgment arguing that the Policy does not amount to an implied employment contract. Thus, plaintiff was an at-will employee, and any violation of the Policy committed by defendants did not constitute breach of contract and did not violate plaintiffs due process rights, thereby negating all three of plaintiffs claims. For the reasons set forth below, defendants' motion is denied.
FACTS
The following facts are undisputed unless otherwise noted. Certain facts will be discussed in more detail in the body of the opinion.
Plaintiff was hired by Provident on February 1, 1993, as the Manager of Quality Service, and she was promoted to the position of Associate Administrator of Quality Assurance approximately one year later. In this position, plaintiff was generally responsible for insuring that Provident met regulatory goals and standards. Specifically, plaintiff was responsible for the quality program, coordinating the activities for infection control, risk management, medical affairs and organizational review. Plaintiff understood her position within the hospital to be that of a manager at a fairly senior level. Plaintiff was not given an employment contract when she was hired by Provident.
The Policy at issue in this case was distributed to all Provident employees and became effective March 31, 1993. The Policy was crafted by Robert Triplett ("Triplett"), Associate Administrator of Human Resources, from the "Human Relations Reference Guide for Supervisors" ("Supervisor's Guide"), and it was among as many as 150 policies included in Provident's "Policies and Procedures Manual." Triplett gave plaintiff a copy of the Policy, but there was no discussion of the Policy at the time. Plaintiff assumed (and was not informed otherwise during her employment) that the Policy applied to everybody at Provident. The only time plaintiff had occasion to apply the Policy during her tenure at Provident was in 1995 or 1996, when she sought the temporary suspension of a subordinate employee. At that time, plaintiff was told by the Assistant Director of Personnel that she needed to follow the Policy in disciplining her subordinate.
Policy was never superceded, supplanted, revoked, modified, or otherwise changed or replaced prior to plaintiff's discharge.
Sometime in early 1993, each Provident employee was given a copy of the Employee Handbook ("Handbook"), which became effective April 19, 1993. The Handbook was disseminated separately from the Policy and makes no reference to the Policy. Likewise, the Policy makes no reference to the Handbook and the Policy is not taken from, a quotation of, or otherwise a reproduction of, any portion of the Handbook.
The content of both the Policy and the Handbook will be discussed below in detail.
Prior to Wright-Griggs becoming Chief Operating Officer of Provident, Shirley Bomar-Cole ("Bomar-Cole") served in that position. In 1996, Bomar-Cole retained two outside consulting groups to assess Provident's status in preparation for a Joint Commission survey. Both consulting groups indicated that there was an opportunity for growth in several areas, including plaintiffs department. They identified plaintiffs department as having a problem in both the "plan and . . . the leadership." The second consultant, Gerri Smothers ("Smothers"), was later commissioned by the hospital to write an in-depth evaluation of plaintiffs department, which was subsequently reviewed with plaintiff. Bomar-Cole expressed to plaintiff that she believed plaintiffs focus should be more on prevention and education and less on audits and document review after the fact. In early 1997, Bomar-Cole met with plaintiff and explained that there had been no real improvement in her department over the past 16 months. In May 1997, Bomar-Cole left Provident and Wright-Griggs arrived.
The Joint Commission is a private agency which aceredits hospitals nationwide, allowing them to receive Medicare funding and negotiate contracts with HMO's for inpatient care and outpatient services.
Soon after joining Provident, Wright-Griggs hired Smothers' company to do another review of plaintiffs department, which was completed in late 1997 or early 1998. Among Smothers' recommendations following that review was that there should be a change of leadership in plaintiffs department. Wright-Griggs discussed Smothers' report with plaintiff in early 1998 and told plaintiff that there had not been much progress in her department. Between May 28, 1998, and September 2, 1998, Wright-Griggs filled out four "Disciplinary Action Forms" regarding plaintiff, but three of those forms were not signed by Wright-Griggs or plaintiff. Wright-Griggs never informed plaintiff that she was in danger of being discharged.
The Policy states that these forms are "to be completed for all steps of [d]isciplinary [a]ction." The Policy further requires that each form include a statement of the infraction and previous disciplinary action, as well as a warning of the consequences that would result if the employee commits the same, similar or other infraction in the future. Further, according to the Policy, whenever a Disciplinary Action Form is completed, it is to be given to the employee by her immediate supervisor in a conference discussing the disciplinary action taken, and both the employee and the supervisor are to sign the form (the employee may refuse to sign the form, in which case the supervisor is to note that refusal on the form).
On September 30, 1998, Wright-Griggs completed a performance evaluation of plaintiff. In that evaluation, plaintiffs scores placed her just above the minimum passing score. On October 2, 1998, Wright-Griggs sent a memorandum to plaintiff stating simply, "October 2, 1998, will be your last day of work at Provident Hospital of Cook County." Plaintiff is the only employee Wright-Griggs has terminated from Provident. Wright-Griggs has since testified that she terminated plaintiff because plaintiff's department had not improved, her behavior and attitude were not professional, she was not a team player, she failed to timely follow up on reports and the submission of information, and because Smothers had recommended a change of leadership in plaintiffs department. Wright-Griggs admitted that she did not follow the terms of the Policy when discharging plaintiff because Wright-Griggs believed that she had discretion to determine to whom the Policy applied.
After her discharge, plaintiff wrote to Robert Furniss ("Furniss"), the Manager of Labor Relations for the Bureau of Administration of Cook County, to request a grievance hearing to appeal her discharge. Furniss informed plaintiff that, as an Associate Administrator, she had a "Shakman-exempt" position that is not covered by the County's grievance procedure.
Shakman-exempt employees are those city government employees who hold high executive or policy-making positions and are subject to removal from those positions for political reasons. Grant v. Chicago Park Dist., 66 F.3d 328, 1995 WL 555020, *4 n. 4, 1995 U.S. App. LEXIS 26060, *8 n. 4 (7th Cir. 1995); see also Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987).
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Unterreiner v. Volkswagen of America. Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee. Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252.
DISCUSSION
I. Count III: Breach of Contract Claim against Cook County
Because this motion, like this case, hinges in large part on the question of whether the Policy constituted an implied employment contract, the court looks first to Illinois law to settle this issue as a matter of law. See Border v. City of Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996); Boulay v. Impell Corp., 939 F.2d 480, 482 (7th Cir. 1991). Under Illinois law, employment relationships of indefinite duration are presumed to be at will unless the facts suggest a contractual relationship. See Dulado v. St. Mary of Nazareth Hospital Center, 115 Ill.2d 482. 318 (Ill. 1987). Plaintiff does not dispute that she was hired as an at will employee. Instead, plaintiff urges the court to apply the Illinois Supreme Court's reasoning in Dulado and find that the Policy gave plaintiff enforceable contract rights. Id at 489 ("an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present"). The requirements for contract formation set forth in Dulado are as follows:
Plaintiff also does not dispute that her position is designated as Shakman-exempt. Defendants assert that because plaintiffs position is Shakman-exempt, she cannot be deemed to have an implied employment contract with Provident. The court disagrees, finding that plaintiffs Shakman-exempt position status merely means that she was hired as an at-will employee and that she could be lawfully terminated for political reasons. See Grant, 66 F.3d 328, 1995 WL 555020 at *4 n. 4, 1995 U.S. App. LEXIS 26060 at *8 n. 4. Because there is no indication that plaintiff was terminated for political reasons, the court concludes that the Shakman-exempt status of plaintiff's position has no bearing on her ability to benefit from an employment contract.
First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer was made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. Id.
A. The First Dulado Requirement
The court begins by determining whether the language of the Policy contains a promise clear enough that plaintiff would reasonably believe that an offer was made. First, the Policy clearly states that it applies to all employees at Provident. The Policy begins: "THIS POLICY SHALL APPLY TO ALL EMPLOYEES UNDER THE JURISDICTION OF THE PRESIDENT OF THE COOK COUNTY BOARD OF COMMISSIONERS." Defendants admit that, at the time of her discharge, plaintiff was indeed an employee under the jurisdiction of the President of the Cook County Board of Commissioners. Second, the Policy covers disciplinary actions, including discharge. The "purpose" of the Policy is defined as follows: "To provide a mechanism whereby disciplinary action will be initiated, including discharge, in a series of progressive steps, depending upon the severity of the rules infraction." Third, the language of the Policy clearly promises that employees can be disciplined only for just cause. The Policy states that "[a]ll discipline shall be given only for just cause," and also that "[s]uspension for more than thirty days or discharge is invoked for just cause. . . ." Fourth, while it is true that the Policy gives Provident management authority to determine what level of disciplinary action is "appropriate to the infraction," the procedural requirements to be followed with each type of disciplinary action are unequivocal. The Policy states that the "Disciplinary Action Form is to be completed for all steps of disciplinary action" and that, once a supervisor, division head or department head recommends discharge, that decision is "subject to review and approval by the Hospital Director/Designee and President of the County Board." The individual conducting the review is further required to hold a conference with the employee and then, within 14 days, approve and direct either that the employee be suspended, terminated, subjected to some lesser disciplinary action, or not subjected to any disciplinary action at all. Finally, the Policy states that "[d]isciplinary [a]ction may only be appealed in accordance with the Grievance Procedure."
The four levels set forth in the Policy are: (1) verbal reprimand; (2) written reprimand; (3) suspension; and (4) discharge.
The Grievance Procedure was distributed to all Provident employees and became effective on June 1, 1993. The Grievance Procedure states that:
THIS POLICY SHALL APPLY TO ALL EMPLOYEE[S] UNDER THE JURISDICTION OF THE PRESIDENT OF THE COOK COUNTY BOARD OF COMMISSIONERS. . . . THIS POLICY SHALL APPLY TO ALL EMPLOYEES WITHOUT DISCRIMINATION AS TO AGE, SEX, MARITAL STATUS, RACE, CREED, COLOR, NATIONAL ORIGIN, PHYSICAL HANDICAP OR POLITICAL AFFILIATION. . . . ALL EMPLOYEE[S] SHALL HAVE A RIGHT TO FILE A GRIEVANCE AND SHALL BE ASSURED FREEDOM FROM COERCION, RESTRAINT, OR REPRISAL.
These clear substantive and procedural rights are not altered by any disclaimers to the contrary in the Policy See Dulado, 115 Ill.2d at 491 (noting that "the handbook contains no disclaimers to negate the promises made"); See also Robinson v. Christopher Greater Area Rural Health Planning Corp., 207 Ill. App.3d 1030, 1037 (5th Dist. 1991) (finding disclaimer stating that, defendant "assumes no contractual liability to any employee via the job description or this [handbook]," was sufficient to negate plaintiffs claim that the terms of the handbook created an implied employment contract). Likewise, no such disclaimers appear in the Supervisor's Guide from which the Policy was derived. Defendants argue that language in the Handbook sufficiently disclaims the promises made in the Policy. The court disagrees.
Instead, the Supervisor's Guide stresses the importance of finding just cause and administering progressive discipline. The section titled "Determination of Disciplinary Measures" begins:
Just cause for disciplinary action has been defined by the courts as some substantial shortcomings which renders continuance of an employee in a position of employment in some way detrimental to the discipline and efficiency of the employer. When such a situation exists, review the following checklist to insure that there is indeed just cause and substantial evidence to support the action[.]
(This paragraph is followed by an extensive list of questions, all of which must be answered affirmatively to support a finding of just cause.) Likewise, the use of progressive discipline is encouraged. "In any organization there exist situations where an employee does or fails to do something that justifies immediate discharge. In most cases, however, to discharge an individual requires a record of the employee being progressively disciplined which has proven unsuccessful in changing their unacceptable work attitudes, habits, or performance."
On the bottom of the table of contents page of the Handbook, the following words appear: "THIS EMPLOYEE HANDBOOK IS NOT TO BE CONSTRUED AS A CONTRACT!" In addition, the introduction to the Handbook provides: "The information contained within this document is intended to provide you with general information which serves as a guide, not to be interpreted as a specific policy. . . . Provident . . . reserves the right to change, suspend or cancel, with or without notice, any policy or benefit discussed in this handbook. In addition, the provisions of this handbook do not establish contractual rights between Provident . . . and/or its employees."
To begin, the Handbook was not disseminated with the Policy and did not go into effect at the same time as the Policy. Also, the Handbook makes no direct reference to the Policy, and vice versa. More importantly, the Handbook disclaimer language does not say that it applies to any other policies disseminated to Provident employees. Instead, the disclaimers in the Handbook limit their application to, "this handbook, `this employee handbook," or "this document" Finally, the Policy is not taken from, a quotation of, or otherwise a reproduction of, any portion of the Handbook. Consequently, the court finds that although the disclaimers in the Handbook might be sufficiently conspicuous to bar contractual claims regarding the content of that document, those disclaimers do not bar plaintiffs contractual claim regarding the content of the Policy. The most that can be said about defendants' position (that the disclaimers in the Handbook apply to the Policy) is that, for the reasons explained above, the Handbook disclaimers are ambiguous. As the Dulado court noted, "Ambiguous contractual language is generally construed against the drafter of the language." 115 Ill.2d at 493 (citations omitted).
While there is a section titled "Disciplinary Action" in the Handbook, that section is simply a summary of some of the terms of the Policy. The entire "Disciplinary Action" section of the Handbook reads:
The intent of disciplinary action is to ensure through a progressive process that the employee has knowledge of the specific rule, policy, or performance expectations and is given every opportunity to correct the problem. The sequence of disciplinary actions generally will follow from verbal reprimand to written warning to termination. Where suspension is thought to be an appropriate measure of disciplinary action. (See Rule and Regulations Governing Employee Conduct.)
Thus, at best this section of the Handbook indirectly refers to the Policy.
Therefore, under the first requirement of Dulado, the court finds that the language of the Policy contains a promise clear enough such that plaintiff reasonably believed an offer was made. Compare Nickum v. Village of Saybrook, 972 F. Supp. 1160, 1165 (C.D. Ill. 1997) (finding use of "must" and "will" in policy language to be sufficiently positive and mandatory) See Doe v. First Nat'l Bank, 865 F.2d 864, 872 (7th Cir. 1989) (finding informational memorandum that did not include a description of specific disciplinary procedures to be insufficient to create an implied employment contract). Specifically, the court finds that the terms of the Policy, as reasonably interpreted by plaintiff, are: (1) plaintiff could be discharged only for just cause; (2) a "Disciplinary Action Form" would be completed for such discharge and reviewed by the Hospital Director/Designee and President of the County Board; (3) the individual conducting that review would hold a conference with plaintiff and announce a decision regarding her discharge within 14 days; and (4) plaintiff would have the right to appeal that decision in accordance with Provident's grievance procedure.
B. The Second Dulado Requirement
Next, the court determines whether the Policy was disseminated to plaintiff in such a manner that plaintiff was aware of its contents and reasonably believed the Policy to be an offer. The undisputed facts show that the Policy was disseminated to all employees of Provident. Plaintiff was given a copy of the Policy by its drafter and, in the only instance in which she used the Policy during her employment, plaintiff was told that the Policy must be followed. Moreover, defendants have offered no evidence showing that plaintiff was not covered by the Policy, and they have admitted that no one at Provident ever indicated to plaintiff that the Policy did not apply to her. Thus, the court finds that plaintiff reasonably believed the Policy to be an offer.
In so deciding, the court rejects defendants' assertion that, because the Policy was crafted from the "Disciplinary Action Policy and Procedure" section of the Supervisor's Guide, plaintiff could not reasonably conclude that the Policy applied to her (i.e., the Policy was meant to be applied only to non-supervisors since it was crafted from a guide created and intended for the sole use of supervisors). This argument has no merit, however, since it is contradicted by the clear language of the Policy, which states that the Policy applies to all Provident employees.
The court also rejects defendants' argument that plaintiff was not reasonable in concluding that the Policy applied to her discharge because, "plaintiffs termination was performance related and, therefore, not disciplinary in nature." The court finds this argument disingenuous; it is unsupported by the three volumes of documents submitted by defendants along with this motion and it is contradicted by the language of the Policy, which defines "[n]egligence in performance of duties" as one of the "Major Cause" bases for discharge. Surely negligence on the job is "performance related." Wright-Griggs even admitted that the reasons she terminated plaintiff could be considered collectively as negligence in the performance of her duties. Thus, the court finds that the Policy covers plaintiffs discharge even if it was for "performance related" issues, as defendants claim.
C. The Third Dulado Requirement
Finally, the court determines whether plaintiff accepted the offer set forth in the Policy by continuing her employment at Provident after learning of the Policy. The undisputed facts show that she did.
Thus, under Dulado, the traditional requirements for contract formation are present in the instant case. The Policy contains enforceable contract rights and plaintiff has established a genuine issue of material fact as to whether defendants breached those contractual rights. Although defendants have offered evidence supporting Wright-Griggs' reasons for terminating plaintiff, a reasonable jury could find that Wright-Griggs' did not have just cause to discharge plaintiff based on the fact that Wright-Griggs' final evaluation of plaintiffs performance placed her above the minimum passing score. In addition, the record does not indicate that Wright-Griggs filled out a "Disciplinary Action Form" when she recommended plaintiffs discharge, as required by the Policy. Consequently, the record does not establish that any such form was reviewed by the Hospital Director/Designee and President of the County Board, that plaintiff was ever asked to attend a conference with the reviewing individual, or that the reviewing individual later announced a decision regarding plaintiffs discharge, all as required by the Policy. Finally, the undisputed facts show that plaintiff was denied the right to appeal her discharge, in violation of the Policy.
Thus, plaintiff has established that a genuine issue of material fact exists as to Count III, her breach of contract claim against Cook County, and defendants' motion for summary judgment of that count is denied.
II. Count I: Due Process Claim against Wright-Griggs
In the first count of the complaint, plaintiff alleges that the language of the Policy created a property right in her position at Provident and that her due process rights were violated when she was discharged in violation of the Policy. Not all contract rights in employment rise to the level of property rights. See Nickum, 972 F. Supp. at 1166 (citing Campbell v. City of Champaign, 940 F.2d 1111, 1113 (7th Cir. 1991)). "A contract which merely creates a right to specified procedures does not create an entitlement upon which a claim of deprivation of property without due process of law can be founded." Id. Thus, the Policy forming the employment contract in the instant case is a constitutionally protected property interest only if it goes beyond mere procedural guarantees to provide some substantive criteria limiting Provident's discretion in discharging plaintiff. See id. (citing Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir. 1989)).
The Policy in the instant case meets that requirement because it guarantees that employees are subject to disciplinary action only for just cause. Compare Nickum, 972 F. Supp. at 1167 (concluding that the language of the employment contract in that case "places a substantive limitation on the [defendant's] discretion in that it defines the type of cause for which [an employee] is subject to discipline") and Border, 75 F.3d at 274 (finding no employment contract where the language of the handbook "contains no promise of continuing employment and no assurance that employees will be dismissed only for `just cause.'"); see also Panozzo v. Rhoads, 905 F.2d 135, 138 (7th Cir. 1990) (finding that municipal policy which required certain procedures and cause prior to termination created a cognizable property interest). Thus, the court finds that plaintiff had a property interest in her job as a result of the terms of the Policy.
To prevail on this claim, then, plaintiff must show that she was deprived of her protected property interest without adequate due process of law by individuals acting under color of state law. See Panozzo, 905 F.2d at 137. The Supreme Court has made clear that due process requires tenured public employees to be given "oral or written notice of the charges against [them], an explanation of the employer's evidence, and an opportunity to present [the other) side of the story." Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546 (1985). The facts indicate that plaintiff was informed of her discharge by Wright-Griggs via a memorandum that did not include the grounds upon which Wright-Griggs decided to discharge plaintiff. Likewise, it is clear that plaintiff was never given the right to present her side of the story following her discharge. Thus, plaintiff has established a genuine issue of material fact as to whether she was denied due process when she was discharged from Provident by Wright-Griggs. Consequently, defendant's motion for summary judgment on Count I is denied.
III. Count II: Due Process Claim against Cook County
Plaintiff further claims that Cook County should be held liable for the deprivation of her due process rights. The Supreme Court declared in Monell v. Department of Social Servs. 436 U.S. 658 (1978), that a municipality may not be held liable under § 1983 solely because it employs tortfeasors. Instead, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983."Id. at
694. The Seventh Circuit has stated that, "[f]or liability to attach against a municipality under [§] 1983, a plaintiff must show that `deliberate action attributable to the municipality directly caused a deprivation of federal rights.'" Frake v. City of Chicago, 210 F.3d 779, 781 (7th Cir. 2000) (quoting Board of the County Comm'rs v. Brown, 520 U.S. 397, 415 (1997)). "A plaintiff must show that municipal policymakers made a `deliberate choice' among various alternatives and that the injury was caused by the (resulting] policy." Frake, 210 F.3d at 781 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To be a "policymaker," the decision-maker must possess "final authority to establish municipal policy with respect to the action ordered." Dertz v. City of Chicago, 912 F. Supp. 319, 329 (N.D. Ill. 1995) (citations omitted).
The court finds that there is a genuine issue of material fact as to whether municipal policymakers made a deliberate choice in not applying the Policy to plaintiffs discharge and ensuing appeal. Wright-Griggs testified that she believed she had the discretion to determine when the Policy applied to particular employees. Defendants argue that the Policy did not apply to any management-level employees since it was crafted from a section of the Supervisor's Guide. Wright-Griggs and Triplett both testified that they believed the Policy did not apply to management-level employees. Defendants also argue that the Policy did not apply to plaintiff because her position was Shakman-exempt. Furniss denied plaintiffs request to appeal her discharge, claiming that the grievance procedures do not apply to employees in Shakman-exempt positions. Based on all of this, a reasonable jury could find that the county's policy and custom were the "moving force" behind plaintiffs termination in violation of the Policy. Thus, defendants' motion for summary judgment of Count II is denied.
Defendants concede that Wright-Griggs is an authorized policymaker under Monell and its progeny but they deny that Furniss enjoys that same status. Based on the fact that Furniss, because of his position as Manager of Labor Relations, had the authority to deny plaintiff's request for an appeal of her discharge, the court finds that a reasonable jury could find that Furniss was an authorized policymaker.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is denied as to all three counts. This matter is set for a report on status on November 21, 2000 at 9:00 a.m.