05-3450 | Omnilex

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# UNPUBLISHED ORDER Not to be cited per Circuit Rule 53

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted August 17, 2006
Decided August 24, 2006

Before

Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge

No. 05-3450

QUINSHELA BROWN,

Appeal from the United States

Plaintiff-Appellant,

District Court for the Northern District of Illinois, Eastern Division

V. CHICAGO TRANSIT AUTHORITY

No. 01 C 9340

RETIREMENT PLAN,

Blanche M. Manning,

Defendant-Appellee.

Judge.

ORDER

Quinshela Brown, a former bus driver for the Chicago Transit Authority,
brought this action alleging that the CTA's Retirement Plan illegally reduced her
pension benefits after she filed several lawsuits against the CTA due to her
discharge. The district court initially dismissed Brown's suit in its entirety for

This successive appeal has been submitted to the same panel that heard
the original appeal. See Operating Procedure 6(b). After examination of the briefs
and the record, we have concluded that oral argument is unnecessary. Thus the
appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).

failure to state a claim. On appeal we concluded that Brown had adequately
pleaded a First Amendment retaliation claim against the Plan and remanded for
further proceedings. Brown v. Chi. Transit Auth. Pension Bd., 86 Fed. Appx. 196
(7th Cir. 2004) (unpublished order). In a well-reasoned decision, the district court
subsequently granted summary judgment in favor of the Plan.

On appeal Brown challenges the grant of summary judgment, renewing for
the most part the arguments she presented to the district court. But our de novo
review of the record reveals no err by the district court. See Pepper v. Vill. of Oak
Park, 430 F.3d 805, 808 (7th Cir. 2005) (instructing that we must review district
court's grant of summary judgment de novo, viewing all facts and inferences in non-
movant's favor). Accordingly, we AFFIRM for the reasons given by the district court
in its memorandum and order dated July 22, 2005.

# IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

QUINSHELA BROWN,
Plaintiff,

)

)
)
01 C 9340

)
CHICAGO TRANSIT AUTHORITY
RETIREMENT PLAN,
)
)
Defendant.

## MEMORANDUM AND ORDER

Plaintiff Quinshela Brown claims that defendant Chicago Transit Authority Retirement
Plan retaliated against her in violation of 42 U.S.C. § 1983 by illegally modifying her pension
benefits after she filed multiple lawsuits against her union and her former employer, the Chicago
Transit Authority, regarding her discharge. The CTA Retirement Plan seeks summary judgment
pursuant to Fed. R. Civ. P. 56. For the following reasons, the CTA Retirement Plan's motion is
granted.

### I. Background

The following facts are undisputed unless otherwise noted.

#### A. Brown's Employment History with the CTA

Quinshela Brown was born on December 11, 1945. The CTA initially hired her as a bus
operator on May 27, 1975. Between 1975 and 1981, pursuant to the terms of the Retirement Plan
for Chicago Transit Authority Employees ("the Plan"), Brown contributed a portion of her wages
toward her CTA pension. On March 17, 1981, Brown was separated from her employment with
the CTA. Brown subsequently instituted a grievance related to her separation. The parties
settled and the CTA reinstated Brown to her position as a bus operator on August 15, 1983. The

settlement agreement provided, in relevant part, that ". .. . the CTA will reinstate Quinshela
Brown to the position of bus operator with full seniority." Brown again separated
from her employment with the CTA on or about July 22, 1996.

### B. The CTA Retirement Plan

#### 1. Normal Retirement

Pursuant to § 9.1 of the Plan, "the normal retirement date shall be the first day of
the month following the employee's sixty-fifth (65th) birthday." When Brown separated from
the CTA on July 22, 1996, she was 50 years old so she did not qualify for "normal retirement"
under § 9.1 of the Plan.

#### 2. Early Retirement

Section 10 of the Plan addresses "early retirement" and provides that:

Any employee in good standing may retire voluntarily on or after January 1, 1984 and
after [s]he:

(a)
Has attained the age of fifty-five (55) years and shall have been employed for at
least (3) years of continuous service, or

(b)
Has completed twenty-five years or more of continuous service.

Whereupon said retired employee shall receive an old-age retirement allowance for life
reduced in accordance with Paragraph 10.2.

When Brown left the CTA on July 22, 1996, she had neither achieved the age of 55 nor
had she completed twenty-five years or more of continuous service with the CTA. Thus, she did
not qualify for "early retirement" as of July 22, 1996. See Plan at § 10.1.

#### 3. Deferred Vested Old-Age Retirement Allowance

CTA employees who are not eligible for "early retirement" or "normal retirement" may
nevertheless be eligible for a Deferred Vested Old-Age Retirement Allowance ("deferred
retirement") if they become separated from the service of the CTA (other than by death) on or
after January 1, 1974, have completed ten or more years of continuous service, and are not
otherwise eligible for a retirement allowance. Plan at § 11.1. To receive deferred retirement
benefits, an eligible employee must "elect not to receive the refund of [her] contributions [to the
Plan], with interest," must make this election "in writing on a properly executed form provided
for that purpose and filed with the Committee," and must file her application for deferred
retirement benefits not earlier than ninety days prior to the former employee's sixty-fifth
birthday. Plan at §§ 11.2 &11.4. Brown will become eligible for the deferred retirement benefit
on her sixty-fifth birthday (December 11, 2010).

#### 4. Refund of Pension Contributions

Pursuant to the Plan, former CTA employees may also request a total refund of all
pension contributions. Plan at § 15.2 ("Contributions made from and after the effective date of
the Plan by any employee who becomes separated from the service of the CTA . . . . shall be
refunded with interest at the rate hereinafter specified, less benefits received under the Plan").
An employee who elects to receive a whole or partial refund "shall be entitled to no further
rights, benefits or allowances" under the Plan unless she "returns to work after service . . . . or is
reinstated .... and remits to the CTA for payment into the Fund the amount previously refunded
to [her]." Id. If that occurs, she "shall have the same rights under the Plan that [s]he would have
had if [s]he had not received the refund." Id.

#### 5. Continuous Service Provision

The Plan also provides that an employee who is terminated does not have a break in
service if she is reinstated within three years after the date of her termination "in the job
classification occupied at the date of such termination, with seniority rights." Plan at §3.7(3).
However, if an employee received a refund of her pension contributions and then was reinstated,
she must repay the amount previously refunded to her to have the same rights under the Plan that
she would have had if she had not received a refund. Plan at § 15.2(1).

#### C. Brown's Pension Benefits

Immediately after her termination in March of 1981 and pursuant to § 15.2 of the Plan,
Brown requested a refund of her pension contributions from May 27, 1975 to March 17, 1981,
and the Plan sent Brown a check in the amount of $5,134.04 (Brown's pension contributions plus
interest). Brown did not refund the $5,134.04 to the Plan after her reinstatement on August 15,
1983.1

According to the Plan, on November 3, 1983, it mailed Brown a letter confirming that
after her reinstatement, she had not filed any paperwork indicating that she wanted to pay back
the retirement benefits that had been refunded to her. The Plan also asserts that the letter advised
Brown that she needed to pay back the withdrawn pension contributions within ninety days to
retain her original pension seniority date. On the other hand, Brown contends that she did not
receive the Plan's letter in 1983 and did not know about the 90-day deadline. She also claims

1
Brown has never sought a refund of the pension contributions from August 15, 1983 to
July 22, 1996 (i.e., from the date of her reinstatement to the date of her second separation from
the CTA).

that she saw the letter for the first time at some point between 2000 and 2002, when it was
produced in discovery.

The Plan contends that two days after it sent the November 3rd letter which Brown says
she did not receive, Brown signed a form acknowledging that she was unable to immediately
reimburse the refunded retirement benefits. The form also acknowledges Brown's receipt of a
copy of Section 15.2 of the Plan (which contains provisions regarding the impact of an
employee's failure to repay refunded benefits). Brown claims that she does not recall signing the
form and asserts that the first time she ever saw the form was at some point during the pendency
of an unrelated case she had filed against the CTA. At her deposition, Brown testified that her
name was written on the form, but that there was no reason for her to have signed any statement
regarding repayment of the pension contributions because the settlement agreement related to her
reinstatement restored her to full seniority without the need to repay the contributions.

The Plan contends that it sent a second letter to Brown on November 17, 1983, notifying
her that she had until November 23, 1983, to remit the pension refund back to the Plan to retain
her original seniority rights. At her deposition, Brown alleged that she was never informed that if
she failed to repay the $5,134.04 pension refund, her pension seniority date would be calculated
from August 15, 1983. She also reiterated her belief that the settlement agreement spoke for
itself and supported her position that she had full seniority regardless of whether she remitted the
refund or not.

The Plan also contends that it sent Brown a third letter on December 20, 1983, informing
Brown that her new pension seniority date was August 15, 1983. At her deposition, the Plan's
attorney showed this letter to Brown, who asserted that she was seeing it for the first time.

The Plan and Brown thus have a fundamental disagreement as to whether the Plan sent,
and Brown received, the three letters regarding the impact of Brown's failure to pay back her
pension refund on her pension seniority date. As noted above, Brown contends that she did not
receive the letters in a timely fashion. The Plan has submitted an affidavit from Tom Collins,
who is the current Deputy Director for the Plan. Collins was not employed by the Plan in 1983
and thus had no involvement with drafting or mailing any of the correspondence allegedly sent to
Brown. Collins has no independent knowledge of any of the letters besides the fact that they
exist in Brown's file.

Over the years, Brown filed a number of lawsuits against the CTA. In this action, Brown
claims that the Plan retaliated against her by modifying her pension benefits in response to the
filing of the actions against the CTA. In response, the Plan argues that it accurately calculated
Brown's pension and that she is not entitled to any benefits until she turns sixty-five.

## II. DISCUSSION

### A. Standard of Review on a Motion for Summary Judgment

Summary judgment is proper when the "pleadings, depositions, answer to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue of
any material fact." Federal Rules of Civil Procedure 56(c); Celotex Corp v. Catrett, 477 U.S.
317, 322 (1986). "The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor." Valenti v. Qualex, Inc., 970 F.2d 363, 365 (7th Cir.
1992). Further, a court should grant summary judgment only when the record shows that a
reasonable jury could not find for the nonmoving party. Id.

### B. Brown's First Amendment Claim Under § 1983

Brown argues that the Plan retaliated against her and thus violated her First Amendment
rights by illegally modifying her pension benefits after she filed several lawsuits against the CTA
regarding her discharge and the CTA's alleged discrimination against her based on her gender.
To establish a 42 U.S.C. § 1983 claim based on retaliation for exercising a First Amendment
right, Brown must prove that: (1) her speech was constitutionally protected, and (2) the Plan
retaliated against her because of that speech. Kyle v. Morton High School, 144 F.3d 448, 454
(7th Cir. 1998). Here, Brown cannot satisfy either prong.

To establish that her speech was constitutionally protected, Brown's speech must touch
on matters of public concern. See Lashbrook v. Oerkfitz, 65 F.3d 1339, 1350 (7th Cir. 1995). A
dispute between an employer and employee is not necessarily a matter of public concern,
especially where the employee's complaint is entirely personal in nature. Id. To determine if
speech is public or private, the court considers whether an employee is "complaining about
matters private to himself, such as whether he was being paid enough or was given deserved
promotions, as compared to an employee who is engaged in whistle blowing or otherwise going
public with matters in which the public might be expected to take an interest ." See Eberhardt v.
O'Malley, 17 F.3d 1023, 1026 (7th Cir. 1994).

Here, Brown has failed to point to any evidence showing that her previous lawsuits
addressed matters of public concern. In remanding this case, the Seventh Circuit noted that
Brown's "garden variety" employment suits did not merit first amendment protection. Brown v.
Chi. Transit Authority Pension Bd., No. 03-1079 (7th Cir. Jan. 12, 2004) (unpublished order). It
also observed, however, that Brown's sex discrimination suit might potentially be protected

Case 1:01-cv-09340 Document 111 Filed 07/22/2005 Page 8 of 12

speech. See id. Despite this broad hint, Brown's response to the Plan's summary judgment
motion wholly fails to point to any details regarding her sex discrimination suit or to discuss this
issue. The court thus finds that she has failed to create a triable question of fact as to whether her
sex discrimination case was protected speech.

Brown has also failed to show that the Plan took any adverse action with respect to her
retirement benefits, let alone that it took adverse action to retaliate against her because of her
speech. Brown argues that her pension seniority date should be set at May 27, 1975 (the date that
the CTA initially hired her). The record shows, however, that Brown's pension seniority date
was August 15, 1983 (the date of her reinstatement) because she failed to repay the contributions
that she had withdrawn prior to her reinstatement.

This is the case despite Brown's contention that under § 3.7(3), she was not required to
pay back the pension contributions in order to take advantage of the May 27, 1975, date. As
noted above, the Plan provides that if "an employee who received a refund returns to work after
service with the terms of Paragraph 3.7(2) or is reinstated within the terms of Paragraph 3.7(3)
and remits to the Authority for payment into the Fund the amount previously refunded to him . . .
shall have the same rights under the Plan that he would have had if he had not received the
refund." Plan at § 15.2(1).

Brown was reinstated under § 3.7(3) with "full seniority." See Plan at § 3.7(3) (an
employee who is terminated does not have a break in service if she is reinstated within three
years after the date of her termination "in the job classification occupied at the date of such
termination, with seniority rights"). Under § 15.2(1), an employee who is reinstated pursuant to
§ 3.7(3) must repay withdrawn pension contributions to retain the same rights under the Plan that

she would have had if she had not received a refund. Thus, Brown's reading of § 3.7(3) is
incorrect.

The court also notes that much of Brown's response memorandum is taken up by her
argument that the three letters sent by the Plan to Brown regarding the withdrawn contributions
are inadmissible. This argument is irrelevant as Brown has not pointed to any portion of the Plan
which states that the Plan's provisions regarding withdrawn contributions are only effective if the
Plan repeatedly reminds participants of the existence of those provisions.

In any event, Brown's claim that the letters are inadmissible hearsay because they are
supported by the testimony of Tim Collins, who did not write them, is wrong. Under the Federal
Rules of Evidence, documentation of events "made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of that regularly conducted
business activity" is admissible if a qualified witness testifies that the document was made in the
regular course of business. Fed. R. Evid. 803(6). A witness is "qualified" if he understands his
company's record-keeping system, regardless of whether he personally participated in the
document's creation. See United States v. Muhammad, 928 F.2d 1461, 1469 (7th Cir. 1991).

Collins' testimony was based upon documents in Brown's file, and the record shows that
these documents were "maintained in the ordinary course of business by the CTA Retirement
Plan." Collins Aff. at 11. The business records rule does not require the Plan to locate the
person who wrote and/or sent the letters to present the letters to the court. See United States v.
Muhammad, 928 F.2d at 1469. Moreover, Brown offers no concrete evidence suggesting that
the letters are untrustworthy. See Coates v. Johnson & Johnson, 756 F.2d 524, 549 (7th Cir.
1985) (the business records exception is intended to permit the admission of records maintained

in the regular course of business unless the source of information or the method of preparation
indicate a lack of trustworthiness).

Instead, she asserts that she does not recall seeing the letters before they were produced in
connection with litigation. Brown's inability to remember the letters is not enough to create a
disputed issue of material fact as to the letters' authenticity. See Fogle v. Williams
Chevrolet/GEO, Inc. an Bank One Wisconsin, No. 00 C 50227, 2002 WL 1433736 at *1 (N.D.
Ill. Jul. 2, 2002) (failure to recall signing a document does not invalidate the validity or effect of
the document); see also Rocket v. Marten Transport Ltd., No. 99 C 3957, 2001 WL 1155256 at
*6 (N.D. Ill. Sept. 28, 2001) (the plaintiff's inability to recall instances of misconduct did not
create a genuine issue of material fact sufficient to defeat a motion for summary judgment).
Accordingly, Collin's testimony is admissible.

The court also rejects Brown's contention that the settlement agreement executed when
she was reinstated in 1983 somehow obviated her need to comply with the Plan's provisions
regarding the repayment of withdrawn pension contributions. The Plan is unambiguous: Brown
was reinstated with full seniority under § 3.7(3), and under § 15.2(1), an employee who is
reinstated pursuant to § 3.7(3) must repay withdrawn pension contributions to retain the same
rights under the Plan that she would have had if she had not received a refund. Moreover, the
settlement agreement does not contain any language which supports Brown's position. In
addition, the November 4, 1983, notice bearing Brown's signature, which is properly before the
court, was executed after the Settlement Agreement and specifically acknowledges that Brown
was informed of her obligation to refund the Plan in the amount of $5,134.04 by November 13,
1983 to maintain her pension seniority date of May 27, 1975.

The only evidence that Brown has to the contrary is her own statement that an unspecified
person told her at an unspecified time and place unspecified words to the effect that she did not
have to repay the withdrawn pension contributions. To defeat a motion for summary judgment,
however, the nonmoving party must produce "evidence of evidentiary quality." Winskunas v.
Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Evidence satisfies this standard if it would be
admissible at trial. Id., citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A proper
foundation for a conversation must include information as to when and where the conversation
occurred, who was present, and who said what to whom. See, e.g., Houk v. Village of Oak Lawn,
No. 86 C 139, 1987 WL 7498 *2 (N.D. Ill. Feb. 26, 1987), citing Mauet, Fundamentals of Trial
Techniques 123 (1980). Because Brown's testimony does not meet this standard, it is
inadmissible and thus is irrelevant for summary judgment purposes.

### C. Punitive Damages

Brown admits that she is not currently entitled to either "normal" or "early" retirement
benefits, and thus concedes that she has not presently suffered any damages. She nevertheless
asserts that the Plan is liable for punitive damages based on its retaliatory calculation of her
future retirement benefits under § 3.7(3). It is true that punitive damages are recoverable under
§ 1983 even in the absence of actual damages if the defendant's conduct was "motivated by evil
intent or involv[ed] reckless or callous indifference to the federally-protected rights of others."
Siebert v. Severino, 256 F.3d 648, 655 (7th Cir. 2001) (internal citations omitted). The Plan
clearly did not act based on this type of animus given that it correctly calculated Brown's
benefits. Cf. Donahue v. Staunton, 471 F.2d 475, 483 (7th Cir. 1972) (awarding damages where

the plaintiff prevailed on the merits of her first amendment claim). Accordingly, Brown is not
entitled to punitive damages.

## III. Conclusion

For the foregoing reasons, the defendants' motion for summary judgment [101-1] is
granted. The clerk is directed to enter a Rule 58 judgment and to terminate this case.

DATE:

July 22, 2005

Blanche M Manning

Blanche M. Manning
United States District Judge

failure to state a claim. On appeal we concluded that Brown had adequately pleaded a… v. 01 C 9340 ) Chicago Transit Authority Retirement Plan

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