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Chan v. Wodnicki

August 29, 1997

CORY D. CHAN, PLAINTIFF-APPELLANT, CROSS-APPELLEE,

v.

EDWARD S. WODNICKI, INDIVIDUALLY AND IN HIS FORMER CAPACITY AS DEPUTY SUPERINTENDENT OF THE CHICAGO POLICE DEPARTMENT, DEFENDANT-APPELLEE, CROSS-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 91 C 4671 Elaine E. Bucklo, Judge.

Before CUMMINGS, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED JUNE 6, 1997

DECIDED AUGUST 29, 1997

Following a trial, the jury returned a verdict in favor of the plaintiff, Officer Cory D. Chan, for $21,000 in compensatory damages, $10,000 for pain and suffering, and $121,000 in punitive damages. Both parties filed post-trial motions, and the district court granted the defendant Deputy Superintendent Wodnicki's motion for judgment as a matter of law. Officer Chan now appeals, and Deputy Superintendent Wodnicki conditionally cross-appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I.

BACKGROUND

A. Facts

Mr. Chan is a police officer with the Chicago Police Department. The defendant, Deputy Superintendent Wodnicki, was the Deputy Superintendent for the Intelligence Division in which Officer Chan served. In that division, Officer Chan was assigned from 1985 to 1989 to a multi-jurisdictional unit, the Chicago Terrorist Task Force ("CTTF"). In that unit, members of the Chicago Police Department served with other state and federal officers. The CTTF required that its members, including Chan, have a "top secret" security clearance from the federal government. As a member of the CTTF, Officer Chan worked well over forty hours a week and received added compensation for the extra hours. He also had use of an official vehicle for police business.

In 1989, Officer Chan received a subpoena commanding his appearance before a grand jury. Officer Chan assumed that the grand jury was investigating illegal activity in the Chinatown section of the City. He previously had been assigned there. After speaking to an attorney provided by his union, Officer Chan invoked his fifth amendment privilege against self-incrimination. He alleges that the questions he was asked during the grand jury proceedings were not specific questions related to his official duties as a police officer. He also testified at trial that he was not advised that any answers provided would not be used against him in a criminal context. After his grand jury appearance, he reported to his superiors that he had invoked his fifth amendment privilege before the grand jury. When he returned to the station, his superiors called him in, and he again told them that he did not answer the grand jury's questions. After this meeting, one of the supervisors told him that he could lose his security clearance.

Shortly thereafter, Deputy Superintendent Wodnicki transferred Officer Chan to another division. In that division, the officer was assigned to duty that required that he wear a uniform. After this transfer, Officer Chan's security clearance was revoked. *fn1 His rank and salary, however, remained the same. Deputy Superintendent Wodnicki testified that he had removed Officer Chan from the CTTF for the following reasons: He did not know why Officer Chan had asserted his fifth amendment privilege and did not know the subject of the grand jury investigation; he considered Officer Chan a security risk; he was told that the FBI was going to revoke the clearance, and the FBI no longer wanted Officer Chan on the CTTF. Officer Chan was replaced on the CTTF by someone who had been in Deputy Superintendent Wodnicki's chain of command before he became Deputy Superintendent.

The union filed a grievance over the transfer on Officer Chan's behalf. On August 20, 1990, an arbitrator ordered Chan's reinstatement in the Intelligence Section, but determined that he was without jurisdiction to order Chan's reinstatement to the CTTF. In April 1991, Officer Chan was renominated to the CTTF and applied for his security clearance. By the time of the trial, his clearance had not been approved. In this sec. 1983 action, he claims that he was transferred in retaliation for asserting his constitutional right against self-incrimination. In his complaint, Officer Chan alleged that the transfer caused economic and reputational harm. Economically, he had fewer opportunities for overtime with the plain-clothes unit. Reputationally, he alleged harm because he had to wear a uniform, his car was taken away, and his new assignment was less prestigious.

B. Proceedings in the District Court

Prior to trial, the district court dismissed from the action several defendants named in the complaint. The Chicago Police Department was dismissed because it was not a suable entity. The sec. 1983 claim against the City was dismissed because Officer Chan had not alleged that this transfer was the direct result of any policy. Officer Chan sought to amend his complaint, but the magistrate judge denied that request and stated that the amended complaint did not cure this problem. Officer Chan never requested that this ruling be reviewed by the district court. *fn2 Deputy Superintendent Wodnicki's motion for summary judgment on the ground of qualified immunity was denied by the district court. At that time, the district court was of the view that there was a genuine issue of material fact as to whether the transfer ...


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