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PIRELA v. VILLAGE OF NORTH AURORA

May 30, 1997

PABLO PIRELA, Plaintiff,
v.
VILLAGE OF NORTH AURORA, EDWARD A. KELLEY, individually and as an agent of the Village of North Aurora, VILLAGE OF SUGAR GROVE, and JAMES QUIST, individually and as an agent of the Village of Sugar Grove, Defendants.



The opinion of the court was delivered by: HOLDERMAN

 JAMES F. HOLDERMAN, District Judge:

 Plaintiff, Pablo Pirela, has filed a third amended six-count complaint against defendants, Village of North Aurora, Edward A. Kelley, Village of Sugar Grove, and James Quist. Plaintiff's third amended complaint alleges two claims for constitutional violations including intentional deprivation of plaintiff's liberty interest (Count I) and intentional interference with plaintiff's liberty interest without due process of law (Count II) against defendant Kelley, and a third claim for race discrimination in violation of 42 U.S.C. ยง 1983 (Count III) against defendants Kelley, Village of Sugar Grove, and Quist. Plaintiff's third amended complaint also alleges three supplemental state claims, breach of contract (Count IV) and defamation (Count V) against defendants Kelley, Village of North Aurora, Village of Sugar Grove, and Quist, and intentional infliction of emotional distress (Count VI) against defendants Kelley and Village of North Aurora. Defendant Kelley has filed a motion for summary judgment on Counts I, II, and III *fn1" and defendants Village of Sugar Grove and Quist have filed a motion for summary judgment on Count III pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendant Kelley's motion is granted in part and denied in part and defendants Village of Sugar Grove's and Quist's motion is denied.

 STATEMENT OF FACTS2

 Plaintiff is of African-American and Hispanic descent. Plaintiff was employed as a police officer for defendant Village of North Aurora (North Aurora) from May 1984 until May 1986, when he was terminated for violation of various rules following a hearing in front of the Board of Fire and Police Commissioner of North Aurora. Defendant Kelley was the Chief of the North Aurora Police Department from 1980 until 1995. Defendant Kelley had recommended plaintiff's discharge. The Board's decision regarding plaintiff's termination was upheld by the Sixteenth Judicial Circuit for Kane County, Illinois. Plaintiff subsequently filed a civil lawsuit in federal court alleging employment discrimination claiming that defendant North Aurora denied him equal pay and promotions on the basis of his race. Defendant North Aurora and plaintiff reached a settlement agreement that discharged plaintiff's claims. Pursuant to that agreement, defendant North Aurora agreed to provide plaintiff's potential future employers with confirmation of employment with a neutral reference that would state, "On advice of counsel, we are unable to comment about the performance of Mr. Pirela."

 In 1993, plaintiff submitted an application for a part-time police officer position with defendant Village of Sugar Grove (Sugar Grove). Defendant Quist has been the Chief of Police for the Sugar Grove Police Department since 1993. In September 1994, defendant Quist asked his police officers if they knew anyone who would be interested in working as a police officer for defendant Sugar Grove. One officer, Vincent Johnson a friend of plaintiff, informed defendant Quist that plaintiff was interested and his application was already on file. Shortly thereafter, defendant Quist reviewed plaintiff's application. Plaintiff had listed on his application that he had been previously employed by defendant North Aurora. Defendant Quist spoke with defendant Kelley about plaintiff at a 911-Board Meeting, defendants Quist and Kelley were both Board members. Defendants Quist and Kelley have talked with each other on several occasions, they are also members of the Kane County Chiefs of Police Association.

 Defendants Quist and Kelley state that the only thing that defendant Kelley said was that he could not discuss plaintiff except to confirm that plaintiff had worked for defendant North Aurora. Plaintiff counters that Mr. Johnson stated in his deposition that, upon inquiring about the status of plaintiff's application, he was told by defendant Quist that defendant Kelley had told defendant Quist that plaintiff could not be trusted, defendant Kelley would not rehire plaintiff, and plaintiff had no good qualities. Defendant Quist states that he may have told Mr. Johnson that plaintiff had a bad work record. Defendant Quist also states that he spoke with a second former employer of plaintiff, Charles Budde who was the Chief of the Kane County Forest Preserve Police. Defendant Quist and Mr. Budde have known each other for twenty years. Plaintiff worked for Mr. Budde as a private investigator in the late 1980s until 1991. Defendant Quist states that Mr. Budde told him that he would not hire plaintiff again because plaintiff did not have a good work ethic and plaintiff would sometimes not show up for work or complete assignments. Mr. Budde in his deposition states that he does not remember ever having a conversation with defendant Quist about plaintiff. Mr. Budde stated in his deposition that the company liked plaintiff immensely although plaintiff did file his reports late a number of times. Defendant Quist decided not to consider plaintiff's application after his alleged conversations with defendant Kelley and Mr. Budde.

 Defendant Quist notified Mr. Johnson of his decision not to consider plaintiff for employment. Mr. Johnson states that defendant Quist told him that Mr. Budde told him that plaintiff did not finish investigations, had a history of suing everybody, and had no good qualities. Mr. Johnson also states that defendant Quist told him that defendant Kelley had said that plaintiff could not be trusted, defendant Kelley would not rehire plaintiff, and plaintiff had no good qualities. Mr. Johnson states that defendant Quist told him that he was not hiring plaintiff because defendant Sugar Grove had too many problems in the past with lawsuits and they could not take a chance with plaintiff. Defendant Quist denies that he said that he would not hire plaintiff because plaintiff filed a lawsuit.

 Defendant Quist's general procedure for hiring officers is to select candidates from the collection of applications on file with the department. Defendant Quist's preliminary background check is to call the last few places where a candidate has been employed. If defendant Quist gets favorable responses from previous employers, feels that the candidate is the right person for his department, and if the candidate's background and work ethic is acceptable, he will inquire further about the candidate. Further inquiry consists of starting a formal background check, meaning defendant Quist will go out and interview people personally and not over the telephone.

 In January 1995, defendant Quist hired Officer Tom Barna, a Caucasian, as a full-time police officer for defendant Sugar Grove. In April 1995, defendant Quist hired Officer William Perkins, a Caucasian, as a part-time police officer for defendant Sugar Grove. Plaintiff presents evidence that both officers clearly had numerous problems with their prior employment and had filed lawsuits against their former employer. Mr. Barna had been terminated from a prior police job. Mr. Perkins had been terminated from one prior police job and termination was sought from another prior police job. Defendant Quist denies that he knew any of this when he hired the officers. Defendant Quist did not speak with the police chief where Mr. Barna previously worked. Defendant Quist did not speak with the two police chiefs from the two police departments where Mr. Perkins had previously worked although Mr. Perkins listed the two as his former supervisors. Defendant Quist also denies ever knowing what plaintiff's race was at any point during the events at issue in this case.

 STANDARD OF REVIEW

 Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.

 A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S. Ct. at 2511.

 ANALYSIS

 Defendants Kelley, Sugar Grove, and Quist have moved to strike certain portions of plaintiff's Local Rule 12(N) statement and for summary judgment on certain counts of plaintiff's third amended complaint. Because this court is able to rule on defendants' summary judgment motions without relying on any of the statements that defendants ...


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