The opinion of the court was delivered by: Ronald A. Gusman, United States Judge
MEMORANDUM OPINION AND ORDER
Pending is the Defendants' motion for summary judgment pursuant to FED. R.CIV. P.56. Also pending is Defendant's motion to strike Plaintiff's 56.1 response. For the reasons set forth below, both motion are granted in part and denied in part.
Plaintiffs, Paul Pomozal ("Pomozal"), Lawrence Weng ("Weng"), Brock Kane ("Kane") and Martin Stumpf ("Sumpf") are current Highland Park police patrol officers. Defendant City of Highland Park is an Illinois municipal corporation, Defendant Daniel Pierce ("Pierce") is the Mayor of the City of Highland Park, Defendant David Limardi (Limardi) is the Highland Park City Manger, Daniel J. Dahlberg ("Dahlberg") is the current Chief of Police of Highland Park, Defendant Peter Barron (Barron) is the Secretary of the Highland Park Civil Service Commission and Defendants Daniel Brusslan, Robert Greenbaum and Herbert Kamin are members of the Highland Park Civil Service Commission.
On November 28, 2000, Plaintiffs filed their Initial Complaint, which sought a declaration of rights that a Media Policy passed by the Highland Park Police Department ("HPPD") was an unconstitutional abridgement of their right of free speech, freedom of association, and right to seek redress from their government. On the same day, in response to the Plaintiffs' Complaint, the HPPD rescinded the October Media Policy, and instituted a new Media Policy (the "November Media Policy"), which Defendants assert addressed the Plaintiffs' constitutional concerns. Plaintiffs deny that this revised November Media Policy redressed their constitutional concerns under the October Media Policy.
On April 17, 2001 Plaintiffs filed their First Amended Complaint. In Count I Plaintiffs allege that they have been deprived of their constitutional right to free speech and free association guaranteed under the First Amendment and the Equal Protection Clause under the Fourteenth Amendment by Defendants. In particular, Plaintiffs allege the following:
1) The Defendants have shown favoritism to patrol officers who are loyal to the Mayor, the City Manager, and the Chief of Police and his Command Staff, rather than loyal to their oaths to the community, by discriminating in promotions, job assignments, job training, and otherwise, against the Plaintiffs and other patrol officers who are loyal members of the patrol officers' union, and/or who complain of wrongdoing;
2) Defendant Dahlberg has participated in cheating, and the other Defendants have allowed cheating on promotional examinations and/or failed to punish, or remedy the same after it was brought to their attention. The Highland Park Civil Service Commission, including each individual Civil Service Member and Secretary named as a Defendant herein, "fixes" the oral examination scores to placate Dahlberg's undue influence upon them, which is exercised by his attending the Commission's deliberation.
The net effect of this process is to nullify the written examination results;
3) Regardless of capability, none of the Plaintiffs has, or has ever had, a fair chance at promotion, because of the Defendants' agreement to keep from advancement all Patrol Officers including the Plaintiffs, who are of suspect personal loyalty and/or are union advocates, and/or want to speak out against Police Department wrongdoing. The Defendants also successfully conspired to take the Lieutenant's promotional process effectively out of the hands of the Civil Service Commission, by creating the non-civil service rank of "Commander," in place of the Lieutenants' rank;
4) The Defendants have attempted to "bust" the patrol officers' union, of which the Plaintiffs are members, by engaging in unfair labor practices; and
5) On or about October 24, 2000, Highland Park promulgated a Media Relations Policy ("the October Media Policy"). The October Media Policy provides that "No employee shall communicate with representatives of any News Medium about City business except as authorized by the appropriate media relations officer."
Plaintiffs allege that despite Defendants' avowals of reform as evidenced by the revised Media policy, Defendants have continued their pattern of infringement upon Plaintiffs' First Amendment rights. This conduct Plaintiffs claim has had a chilling effect upon the Plaintiffs, and based upon the pattern of Defendants' conduct there is a substantial likelihood that the City of the Highland Park will impose another unconstitutional media policy if it is not prohibited from doing so.
Plaintiffs claim that they have sustained actual damages due to the infringement described upon their rights of free speech, free association, and right to seek redress of their grievances by reason of having to retain counsel to vindicate their rights, in attempting to overcome the civil service wrongdoing, to cause the October Media Policy to be replaced by the November Media Policy, and by the mental stress, unease, and humiliation attendant to the infringement. Plaintiffs claim they are entitled to nominal and punitive damages by reason of the Defendants' violation of their free speech. Plaintiffs seek a money judgment order as well as an injunctive relief against Defendants to deter Defendants from any further misconduct.
Count II of Plaintiffs' complaint alleges a violation of the Fourteenth Amendment under 42 U.S.C. § 1983. Plaintiffs claim that the Defendants have shown favoritism to patrol officers who are loyal to the Mayor, the City Manager, and the Chief of Police and his command staff, rather than loyal to their oath to the community. (Plaintiffs' Compl. Count II, ¶ 12). According to Plaintiffs Defendants have "fixed" promotional exam results for the 1991-2000 period as well have successfully conspired to take the Lieutenant's promotional process effectively out of the hands of the Civil Service Commission, by creating the rank of "Commander," which has the same pay and responsibilities as the post of Lieutenant, but is technically a Sergeant's post, thereby allowing appointment of de facto Lieutenants by the Chief of police, rather than de jure Lieutenants by the Civil Service Commission (Plaintiffs' Compl. Count II, ¶ 12). Plaintiffs further complain that Defendants have treated them unequally based upon their union membership (Plaintiffs' Compl. Count II ¶ 13) as well as conspired to cover up the on-going corruption and favoritism in the HPPD (Plaintiffs' Compl. Count II, ¶ 14).
Plaintiffs claim they have sustained damages by reason of loss income associated with the unfair discrimination through the lack of promotions, job training, and otherwise stunted career growth (Plaintiffs' Compl. Count II, ¶ 16). Plaintiffs seek an injunction against Defendants for nullifying the promotional exam test results as well pay and benefits commensurate with proper advancement and training (Plaintiffs' Compl. Count II. ¶ 16). In addition, Plaintiffs seeks such other and further relief as is necessary to ensure that favoritism, discrimination, cheating on the promotional exams and the undue influence exerted on the Civil Service Commission is ended. (Plaintiffs' Compl. Count II, ¶ 18).
1. Plaintiff Paul Pomozal
Pomozal joined the HPPD in January of 1980 and has always held the rank of patrolmen. (Defendants' 56.1 Statement ¶¶ 6 & 8). Pomozal is a member of the Teamster's Union, which represent the HPPD's patrol officers.(Defendants' 56.1 Statement ¶ 9).
Pomozal was informed by Sergeant Larson that the command staff kept a list of loyal and union backers, and was comprised of patrol officers "[w]ho could be counted on and who couldn't be counted on sort of thing." (Plaintiffs' 56.1 Response ¶ 13). Pomozal's name was on the list as a union backer and Pomozal took this as a negative comment by the command staff about himself (Id.). However, it is undisputed that neither Chief Dahlberg nor anyone else on the command staff of the HPPD has ever done anything or said anything to discourage Pomozal's attendance at a union meeting (Defendants' 56.1 Statement ¶ 11).
Pomozal took the Sergeant's promotional exam at the HPPD in 1987, 1989, 1991, 1993 and 1995 (Defendants' 56.1 Statement ¶ 15). Pomozal refrained from taking the exam in 1997 because Deputy Chief Benton told him if he was promoted, he would lose his position as a canine officer. (Plaintiffs' 56.1 Response ¶ 15). Pomozal is very close to his dog and did not want this to happen. Pomozol claims that these circumstances were specifically formulated to prevent Pomozol from becoming a sergeant, and had kept him from seeking any further promotions. (Id.)
According to Pomozal Commander Schwartz was a canine officer who was allowed to keep his dog after he was promoted to Commander (Id.). Pomozal believes that he was treated unfairly on the issues of his dog as well as all of the promotional exams. (Plaintiffs' 56.1 Response ¶ 16). During the 15 minute oral examination in 1989, Pomozal was asked about a then upcoming suspension that he had pending for telling a citizen at a traffic stop the he had recorded his conversation with the citizen, when in fact he had not recorded the conversation. (Defendants' 56.1 Statement ¶ 18). As of the 1991 promotional exam, Pomozal "was under the impression that. . . something was going on with the scoring with the orals. . . to manipulate the overall Sergeant's promotional exam scores. (Defendants' 56.1 Statement ¶ 22). Pomozal didn't really know what was going on until May of 2000, when the Sullivan Report, an independent investigation report, was completed and issued to Defendants. (Plaintiffs' 56.1 Response ¶ 22).
Pomozal has never written anything about the racial profiling which he alleges takes place within the HPPD. He has, however, spoken out about racial profiling at a sensitivity training session that was undertaken by the HPPD as part of Highland Park's consent decree with the American Civil Liberties Union. (Plaintiffs' 56.1 Response ¶ 27). Pomozal has also spoken out on issues of concern at union meetings. (Plaintiffs' 56.1 Response ¶ 28).
Lawrence Weng joined the HPPD in 1984, left in 1988 and returned in 1989. (Defendants' 56.1 Statement ¶ 30). Weng is currently a patrol officer which was his rank when he joined the HPPD (Defendants' 56.1 Statement ¶ 31). Weng admits that there are no specialty positions which Weng ever wanted or applied for that he did not receive at the HPPD. (Defendants' 56.1 Statement ¶ 32). Weng complains, however, that the HPPD does not have a system for requesting specialty assignments. (Plaintiffs' 56.1 Response ¶ 34).
Weng was a union steward in the mid-1990s (Defendants' 56.1 Statement ¶ 34) and promoted the initial unionization effort with the HPPD. (Plaintiffs' 56.1 ¶ 34). Defendant Dahlberg tried to intimidate Weng and other union representatives by threatening to take away overtime pay for patrolling the Ravinia Festival, and saying that the other officers would blame Weng and the other union representatives when this was done. (Id.). As to union issues Weng had made no complaints about the management of the Police Department within the past few years. (Defendants' 56.1 Statement ¶ 49 and Plaintiffs' Response).
Weng took the Sergeant's exam in 1990-91 and did not receive a passing score on the written portion of the exam. (Defendants' 56.1 Statement ¶ 35). During his career at the HPPD, Weng received only one letter of reprimand which he thought was unjustified. (Plaintiffs' 56.1 Statement ¶ 37). Weng does not believe that the letter has caused any adverse consequences to this career. (Id.). Weng believes that the cheating on the promotional exams at the HPPD has had adverse consequences to his career. (Plaintiffs' 56.1 Response ¶ 37).
When Weng was being trained as an officer by a fellow patrol officer, the officer committed racial profiling and encouraged Weng to do the same. (Defendants' 56.1 Statement ¶ 39). Over time Weng reduced his use of racial profiling to make stops but admits to having falsified reports to justify stops in the past. (Defendants' 56.1 Statement ¶ 39). By he time Weng left the HPPD Weng had stopped engaging in racial profiling. (Id.) Since returning to the Department in 1989, Weng has not engaged in any racial profiling. (Id.). Weng admits that no member of the HPPD command staff has ever suggested to Weng that he should racially profile. (Defendants' 56.1 Statement ¶ 40). Weng has not personally observed racial profiling since his return to the Department in 1989. (Id).
In 1989 Weng made a trip to Washington DC, along with the Rev. Jesse Jackson and several other HPPD officers (Defendants' 56.1 ¶ 43). During the trip Weng attended a meeting with Bill Lan Lee of the Department of ...