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FALK v. COOK COUNTY SHERIFF'S OFFICE

October 26, 1995

ALBERT J. FALK, Plaintiff,
v.
COOK COUNTY SHERIFF'S OFFICE, MICHAEL SHEAHAN, ED CARIK, ROBERT GOLDSMITH, RICH WHITNEY, AND JOHN BYRNE, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff, Albert J. Falk, brings this five count action against defendants Cook County Sheriff's Office (the "Sheriff's Office"), Cook County Sheriff Michael Sheahan ("Sheahan"), Cook County Chief Deputy Sheriff Ed Carik ("Carik"), Director of the Internal Affairs Division of the Sheriff's Office Robert Goldsmith (Goldsmith"), former Deputy Director of the Electronic Monitoring Unit (the "EMU") Rich Whitney ("Whitney"), and Director of the EMU John Byrne ("Byrne"), alleging that defendants: (1) retaliated against plaintiff in violation of his First Amendment right to freedom of speech as secured by the due process clause of the Fourteenth Amendment, brought pursuant to 42 U.S.C. § 1983 ("§ 1983") (Count I); (2) conspired to deny plaintiff his First Amendment right of freedom of speech, brought pursuant to § 1983 (Count II); (3) deprived plaintiff of his right of freedom of speech under the Illinois Constitution, Article 1, Section 4 (Count III); (4) retaliated against plaintiff for reporting allegations of abusive behavior by EMU officers, in violation of the Illinois Whistle Blowers Act, 5 ILCS 395/1 (Count IV); and (5) should pay punitive damages for acting willfully, unlawfully, maliciously and in wanton disregard of the rights and feelings of plaintiff (Count V).

 The federal claims in Counts I and II are brought against the defendants in their individual capacities only. *fn1" The state law claims in Counts III through V are filed against defendants both in their individual and official capacities. Defendants have filed a joint motion for summary judgment under Fed.R.Civ.P. 56.

 FACTS

 Plaintiff applied for a deputy sheriff position in the Sheriff's Office on July 1, 1987. The employment application form plaintiff filled out for the Sheriff's Office asked: (1) "have you ever been convicted," to which plaintiff answered "Yes"; and, (2) "If so, was a guilty verdict entered in the trial court and the finding," to which plaintiff answered "Yes-Pardoned (papers submitted to County)." At that time, in fact, plaintiff had received a pardon from Governor James R. Thompson for his state law criminal convictions. Plaintiff failed, however, to mention that he was convicted of a federal crime in 1972 *fn2" for which he has not been or sought to be pardoned.

 On June 1, 1990, plaintiff applied and was chosen to work in the EMU of the Sheriff's Office. Plaintiff filled out an employment application on June 1, 1990, for this position, on which plaintiff did not respond at all to the question asking if he had ever been convicted of a crime. In October 1991, plaintiff reported alleged abuses of detainees in the EMU by EMU officers to Whitney, the department's deputy director. Whitney directed plaintiff to draft a General Order concerning proper disciplinary measures for deputies handling detainees in the EMU. Plaintiff submitted his draft General Order to Whitney in November 1991.

 Approximately two months later, in a memorandum dated January 22, 1992, plaintiff was transferred from the 3rd watch patrol unit to the 3rd watch work/school unit. This transfer was the first of six reassignments, spanning from January 1992 to July 1992. These reassignments are all documented in office memoranda signed by Whitney. Plaintiff alleges that he was forced to accept the least desirable assignments and shifts within EMU and eventually was constructively forced to resign from EMU in July 1992. On July 11, 1992, plaintiff requested a transfer from the EMU to the department of court services. There are two memoranda signed by Carik and Whitney, documenting that as of July 14, 1992, plaintiff was transferred from his position of investigator II in the EMU, grade 16, to the department of court services, merit deputy sheriff. Based on his change in rank, plaintiff suffered an approximate $ 7000 reduction in his annual pay.

 In August 1992, plaintiff filed a formal complaint about alleged abuse in the EMU and met with Carik and Goldsmith. During this meeting plaintiff gave his superiors a list of names of people who claimed they had been severely abused while being processed in the EMU.

 On February 4, 1993, Chicago Police Officer Taylor filed a report in connection with a burglary investigation, alleging that plaintiff had harassed and intimidated witnesses to and victims of the burglary. This report was turned over to and investigated by the Internal Affairs Division of the Sheriff's Office ("IAD"). During this investigation IAD investigator Ron Pluta ("Pluta") performed a background check into plaintiff's employment record, and discovered that plaintiff had omitted his federal criminal conviction on his employment applications, and had omitted the fact that he had not been pardoned from his federal conviction. On March 31, 1993, Assistant State's Attorney Pat Quinn and Chief Investigator Joe Kelly questioned plaintiff about both the alleged witness tampering, and about plaintiff's federal conviction. During that meeting, plaintiff told Quinn and Kelly that the conviction had been expunged.

 During his investigation Pluta further discovered that in addition to omitting his federal conviction from his employment application, following his application to the Sheriff's Office, plaintiff applied for a Federal Firearms License and omitted his federal conviction from his application to the Bureau of Alcohol, Tobacco and Firearms (the "ATF"). Pluta contacted the Cook County State's Attorney's Office with this information. Assistant State's Attorney Daniel J. Lynch then contacted officers at ATF and asked them to check plaintiff's firearm license application. The ATF's investigation uncovered that plaintiff had misrepresented his background in the preparation for his license which was subsequently revoked.

 Plaintiff was called to a meeting in IAD's office on May 13, 1993. Plaintiff was confronted with his alleged application misrepresentations and asked to make a statement. Plaintiff sought and received a continuance until May 20, 1993, to retain legal counsel. On May 18, 1993, plaintiff held a press conference to report alleged abuse by officers in the EMU. On May 20, 1993, plaintiff returned to the IAD office with two attorneys (plaintiff's attorneys of record in the instant case) and a certified shorthand reporter. Plaintiff was given a copy of his Administrative Rights and a Notification of Allegations containing the allegations that he had falsified his employment applications. During this meeting plaintiff made a recorded statement.

 Plaintiff was relieved of duty without pay on June 9, 1993. A hearing was held before the Sheriff's Merit Board (the "Merit Board") on September 14, 1994, regarding plaintiff's alleged violations of the Cook County Sheriff's Department rules and the rule of the Sheriff's Merit Board. At this hearing plaintiff was represented by counsel and given an opportunity to answer the allegations and offer evidence in his behalf. After hearing the parties' evidence, in an Order dated February 21, 1995, the Merit Board held that: (1) plaintiff falsified his employment application by concealing his federal conviction in violation of Rules and Regulations of the Cook County Sheriff's Court Services Department and Cook County Sheriff's Merit Board Rules and Regulations; and (2) ordered that plaintiff be separated from employment, for cause, effective June 9, 1993.

 Plaintiff filed the instant action on June 25, 1993, prior to his Merit Board hearing, alleging that plaintiff had been transferred, demoted, and terminated in retaliation for coming forward with allegations of abuse by EMU officers.

 DISCUSSION

 Under Fed.R.Civ.P. 56(c), a court should grant a summary judgement motion if "there is no genuine issue of material fact and... the moving party is entitled to judgment as a matter of law." The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). When reviewing a summary judgement motion, the court must read the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).

 FIRST AMENDMENT RETALIATION CLAIM

 Defendants argue that plaintiff is not entitled to any recovery for alleged discrimination because he obtained his job under false pretenses. In support of this argument defendants cite Kawitt v. United States, 842 F.2d 951 (7th Cir. 1988), in which the court denied the plaintiff's Due Process claim because, "a job obtained by an admitted and material misrepresentation is not a property right upon which a constitutional suit can be founded." 842 F.2d at 953. While it is well settled law that a plaintiff must have a property right in his or her job in order to maintain a constitutional due process claim, there is no such requirement to maintain a First Amendment retaliation claim.

 To recover on a First Amendment retaliation claim, plaintiff must prove: "(1) that speech he engaged in was constitutionally protected under the circumstances; and (2) that defendants retaliated against him because of that speech." Gorman v. Robinson, 977 F.2d 350, 354 (7th Cir. 1992). Under Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), however, plaintiff cannot prevail in his retaliation claim "if the defendant[s] can show that the decision to terminate the plaintiff would have been reasonable even in the absence of the protected conduct." Conner v. Reinhard, 847 F.2d 384, 393 (7th Cir. 1988). After plaintiff's initial burden of establishing that his conduct was constitutionally protected and that the conduct was a ...


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