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LEHPAMER v. TROYER

February 4, 1985

GLEN LEHPAMER, PLAINTIFF,
v.
STANLEY D. TROYER, CHIEF OF THE POLICE DEPARTMENT OF THE VILLAGE OF DOWNERS GROVE, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Bua, District Judge.

ORDER

Before the Court is defendant's motion to dismiss plaintiff's amended complaint under § 1983 and the First and Fourteenth Amendments to the United States Constitution. For the reasons stated herein, defendant's motion to dismiss is granted.

I. FACTS

Plaintiff Glen Lehpamer is a police officer currently employed by the Village of Downers Grove Police Department. Defendant Stanley D. Troyer is the Chief of the Downers Grove Police Department. Since 1978, plaintiff has been subject to various evaluations by the police department. Plaintiff has spoken out against some poor evaluations, which were eventually upgraded. Plaintiff was suspended on July 17 and 18, 1982, in connection with an alleged shouting match with one of his supervisors relating to plaintiff's police performance. The suspension was subsequently reversed by the Downers Grove village manager.

In addition, plaintiff alleges that, due to the suspension's reversal, the defendant referred the plaintiff for psychological testing which resulted in a report dated August 2, 1982. Further psychological testing and evaluations were conducted on the plaintiff. However, plaintiff does not allege that these evaluations were used to discontinue the plaintiff in testing for sergeant's promotions. Plaintiff alleges only that the psychological testing was "prejudicial."

Plaintiff also alleges that he was denied light duty police assignments, necessitated by an off-duty related incident, because he had spoken out against his poor evaluations. In support of this allegation, he states that he informed his supervisors of back pain which prevented him from driving a squad car, but that his supervisors would not assign him to other duty. However, plaintiff does not allege that any light duty assignments were available, even though he states that it was the custom and practice of the police department to assign light duty to persons with off-duty injuries.

Finally, plaintiff alleges that he took a written examination for promotion to sergeant, but he did not get the promotion. The examination was allegedly graded "in-house" and not by an outside testing center. Therefore, plaintiff concludes that he was denied his sergeant's promotion on the basis of defendant's bias and prejudice toward him for speaking out against poor evaluations and in defense of his performance as a police officer.

From these allegations, plaintiff sets forth four grounds for denial of his civil rights: (1) violation of his First Amendment right to speak out regarding personnel practices; (2) violation of the due process clause of the Fourteenth Amendment; (3) violation of the liberty interest clause of the Fourteenth Amendment; and (4) violation of the equal protection clause of the Fourteenth Amendment.

II. DISCUSSION

A complaint should not be dismissed unless it appears beyond doubt that plaintiff could prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). As a corollary to this rule, a district court must take all well-pleaded facts in plaintiff's complaint as true.

1. Violation of First Amendment Rights

Plaintiff alleges numerous adverse actions which occur in retaliation for, and therefore as a consequence of, his complaints regarding poor job evaluations and the unwillingness of the defendant to assign plaintiff to light duty due to his off-duty injury. The bias allegedly directed toward plaintiff in connection with the sergeant's promotional examination is also related to plaintiff's complaints about his job evaluations. In addition, the prejudicial psychological testing arose out of plaintiff's complaints.

Defendant counters that there is no duty to provide plaintiff with light duty work and there was also none available. Regarding the psychological testing, defendant avers generally that acts in retaliation for an employee's comments do not violate or curtail the employee's First Amendment rights where his comments relate to purely personal matters, such as job evaluations and assignments. Finally, defendant argues that the sergeant's promotional examination is not of the type which is open to bias and prejudice in the grading process.

It is well established that an employee cannot be disciplined consistently with the due process clause in retaliation for the exercise of his First Amendment rights. Altman v. Hurst, 734 F.2d 1240, 1243 (7th Cir. 1984); see also Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). The Supreme Court, in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), recently announced a test to determine when the First Amendment protects the speech of public employees. It held there "that when a public employee speaks not as a citizen upon matters only of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is ...


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