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HUDSON v. CITY OF CHICAGO

May 28, 2003

WILLIAM HUDSON AND BISHOP PAMON, PLAINTIFFS,
v.
CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: David H. Coar, United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs William Hudson ("Hudson") and Bishop Pamon ("Pamon") (collectively "Plaintiffs") are former police officers who are suing their former employer, the City of Chicago ("Defendant" or "the City"), pursuant to 42 U.S.C. § 1983 for terminating them from their employment in violation of their due process rights. Before this Court are the City's motions for summary judgment against both Plaintiffs. For the following reasons, the Court GRANTS the City's motions for summary judgment in their entirety.

I. Standard

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.Pro. 56(c); see also Schmidt v. Ottawa Medical Center, P.C., 322 F.3d 461, 463 (7th Cir. 2003). When evaluating a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and makes all reasonable inferences in his favor. See Rogers v. City of Chicago, 320 F.3d 748, 750 (7th Cir. 2003).

It is the moving party's burden to demonstrate the absence of genuine issues of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). If the moving party meets this burden, the non-moving party must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule 56(e); Celotex, 477 U.S. at 324. To successfully oppose the motion for summary judgment, the non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

II. Background

Unless otherwise stated, the following facts are undisputed and are taken from the parties' Local Rule 56.1 materials. Hudson and Pamon are former employees of the Chicago Police Department. Defendant is a municipal corporation organized under the laws of the State of Illinois, and the Chicago Police Department (CPD) is an operating department of the City. Applicable Ordinances, Agreements, and CPD Policies/Regulations Illinois Law

Section 10-1-18.1 of the Illinois Municipal Code, which the City adopted pursuant to its home rule powers, see Chicago Municipal Code § 2-84-030 (1990), provides that:

In any municipality of more than 500,000 population, no officer or employee of the police department in the classified civil service of the municipality whose appointment has become complete may be removed or discharged, or suspended for more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense by the Police Board . . . Upon filing of charges for which removal or discharge, or suspension of more than 30 days is recommended a hearing before the police board shall be held. . . .
65 ILCS 5/10-1-18.1.

Section 10-2.1-17 further provides that:

[N]o officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense . . . The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof . . . In the conduct of this hearing, each member of the board shall have the power to administer oaths and affirmations, and the board shall have the power to secure by its subpoena both the attendance and testimony of witnesses and the production of books and papers relevant to the hearing.
65 ILCS 5/10-2.1-17.

Chicago Police Department Policy

The CPD requires that its sworn police officers carry firearms to fulfill their police obligations. When a sworn member of the CPD is prohibited from carrying a firearm by legislative or judicial action, that member is ineligible to work in any assignment or to be paid. An officer subject to such action may use his accrued personal time to continue to be paid. Personal time includes furlough days, baby furlough days, and compensatory time. After an officer exhausts his paid personal time, he is required to continue to account for his absence from work. The officer may do so by applying for and obtaining an unpaid leave of absence. Alternatively, the officer may notify his district of his status each day he is required to work. An officer on an approved unpaid leave of absence is not required to call the CPD during the pendency of his leave. In certain limited circumstances, the CPD will strip a police officer of his authority to carry a firearm or otherwise exercise his police powers. In these cases, CPD policy may in some, but not all, cases allow the officer to remain in a paid status. Such officers would be placed in a less sensitive position within the CPD pending the outcome of an investigation.

The Collective Bargaining Agreement

At all relevant times, the employment relationship of police officers was governed by a collective bargaining agreement entitled "Agreement Between the City of Chicago and The Fraternal Order of Police Lodge No. 7" ("CBA"). Under Article 23, Section 23.1(D) of the CBA, the employment relationship between a police officer and the CPD is terminated if the officer is absent without notice ("AWOP") for four consecutive days. The CBA does not afford the officer a hearing to contest this termination. This policy has been adopted by the CPD as General Order 94-5-1A(V). The CPD considers terminations under this policy to constitute job abandonment.*fn1

Usually, the CPD becomes aware that an officer is AWOP from the unit that the officer is assigned. The unit is instructed to make out a Personnel Action Request ("PAR form") for each day that the officer is absent. On the fourth consecutive day, a Final PAR form is prepared, and all the forms are forwarded to the Personnel Division. Once Personnel receives all of the PAR forms, an administrative sergeant verifies that there was a four-day AWOP by calling the officer's unit. The Commander of Personnel would then sign off on the final PAR form, thus executing the officer's termination. This entails notifying the CPD's Finance Division and the City Department of Personnel that, as of a certain date, the officer no longer is employed with the CPD. Shortly thereafter, the officer would be notified by mail that he or she is terminated.

The CBA contains a grievance procedure for police officers. Under the CBA, a "grievance" is defined as "a dispute or difference between the parties to this Agreement concerning interpretation and/or application of this Agreement or its provisions." An officer may initiate a grievance on his own or through the Fraternal Order of Police Lodge No. 7 ("the Union").*fn2 The officer must submit his grievance to his immediate supervisor in his unit of assignment within seven working days of the event giving rise to the grievance or seven days following the officer's first knowledge of the events leading to the grievance. Within seven working days of the receipt of the member's grievance, the supervisor is required to respond to the grievance and then immediately present the grievance to the commanding officer of the aggrieved officer's unit. The commanding officer is then required to render a decision in writing within 14 days of receiving the grievance. If the aggrieved officer is not satisfied with the decision of his commanding officer, then the officer and the Union may request mediation.

Grievances that are not resolved by these means may be submitted to arbitration by the union. At the arbitration hearing, officers (through their unions) are entitled to the following procedural protections:

a. The right to select the arbitrator with the mutual agreement of the City or the right to select by process of elimination (with each side eliminating one name in turns) an arbitrator from a list of seven qualified neutral arbitrators selected by the American ...

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