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DILLON v. FERMON

December 6, 2005.

LANCE DILLON, Plaintiff,
v.
STEVEN M. FERMON, Defendant.



The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#15) filed by Defendant, Steven M. Fermon. Following this court's careful review of the arguments of the parties and the documents filed by the parties, Defendant's Motion for Summary Judgment (#15) is DENIED. This case remains scheduled for a final pretrial conference on December 28, 2005, at 11:00 a.m. and for a jury trial on January 9, 2006, at 9:00 a.m.

FACTS

  The following facts are based upon this court's review of the statements of undisputed facts and the supporting documents provided by both parties. This court notes that, at this stage of the proceedings, the court must consider the evidence in the light most favorable to the party opposing summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

  Plaintiff, Lance Dillon, has been employed as a sworn officer with the Illinois State Police since November 4, 1984. Plaintiff has held various positions with the Illinois State Police since he was hired. In 1999, Plaintiff was a special agent with the Vermilion County Metropolitan Enforcement Group (VMEG). In December 1999, Plaintiff was transferred from VMEG to Zone 5 and worked as an investigator. His direct supervisors while he worked in Zone 5 were Mike Bernardini and Michale Callahan. In April 2000, Plaintiff attended a meeting at the VMEG office regarding a case Plaintiff was involved in while he was working with VMEG during the summer of 1999. The defendant, Terry R. Hawthorne, was scheduled for sentencing in Warren County, Indiana. Plaintiff testified during his deposition that Lou Shanks, who was hired by Fermon and was then working with VMEG, gave the prosecutor, John Larson, false information at the meeting. Plaintiff testified that, after the meeting, he waited around so he could talk to the prosecutor alone. He testified that he did not feel comfortable talking at the meeting because Sue Culp, who was the deputy director of VMEG at that time, was present. Plaintiff was not able to speak to Larson that day because Larson was in a meeting with Culp. Plaintiff testified that he telephoned Larson the next morning and told Larson that he did not agree with what Shanks had said at the meeting. Plaintiff informed Larson that he was not going to provide the same testimony. Plaintiff testified that he told Larson that "if he didn't want us conflicting on the stand, don't call me." At his deposition, Plaintiff provided the following explanation:
[A]ccording to Lou Shanks, the defendant always dealt drugs in Indiana, he didn't deal in Illinois. That was untrue. We'd already made two or three buys from him in Danville. Shanks said that the defendant was the one that set the deal up in Indiana, which was untrue. We did that. The [confidential source] in the case originally was a little uneasy about doing it in Indiana because he said the guy's never done it in Indiana before. But then Shanks went on to tell the prosecutor — like I say, he'd already pled guilty before this meeting. This was going to be for his sentencing hearing. And Shanks said that Hawthorne was a big dealer in Indiana, specifically the Crawfordsville area, where we had no information of that. Like I said, when he — when he came to sell us the drugs in Indiana, we were only maybe two miles in Indiana. He was almost an hour and a half late because he kept going past where the meet spot was. He had no idea where he was at in Indiana. Like I said, Shanks said it was the defendant's — the defendant was the one that set up the deal in Indiana, not us, which was completely untrue.
Plaintiff stated that he told Larson, "I'm not going to testify that he's a big dealer in Indiana. I'm not going to testify that he was the one who set the deal up in Indiana because he wasn't." Plaintiff has alleged that Shanks wanted the drug buy to occur in Indiana due to the tougher penalties in that state for drug dealing, as opposed to Vermilion County, Illinois.

  Shanks testified at the sentencing hearing, but Larson did not call Plaintiff to testify. Plaintiff did not attend the sentencing hearing, but testified that he reviewed the transcript of the hearing. Plaintiff testified that, in his opinion, Shanks lied at the sentencing hearing.

  After this incident, Danny Reed, who was director of VMEG at that time, forwarded information to Callahan pertaining to Plaintiff and the Warren County prosecutor. Plaintiff testified that Reed's complaint was that Plaintiff called the prosecutor and said that Shanks was going to make false statements. Callahan investigated and determined that Plaintiff had done nothing wrong. Fermon testified that he learned that Plaintiff gave information about the Indiana court proceedings from Reed. However, Fermon testified that he did not talk to Reed about it when Reed was the head of VMEG and did not think he heard about it until after Plaintiff was transferred. Plaintiff testified that Fermon knew about his telephone call to Larson through Reed. At the time Plaintiff made his statements to Larson, Fermon was Statewide Investigations Administrator for the Illinois State Police. When Fermon held this position, he had an office in Springfield and an office in the VMEG office in Danville.

  It is undisputed that Fermon was close friends with Shanks and Reed. Reed testified that he socializes with Fermon at least once a week. Fermon testified that he had frequent contact with Reed and probably talked to Reed a couple times a week when Reed was the head of VMEG. Fermon testified that he has known Shanks since 1993 and, in addition to a professional relationship, he has a social relationship with Shanks and considers him a friend.

  It is undisputed that Plaintiff has a lengthy disciplinary history. Plaintiff's disciplinary record began with a letter of reprimand issued in 1987 and included a 60-day suspension issued on January 23, 2001, and a 90-day suspension issued on November 8, 2001. Both of these suspensions were imposed for various misconduct, including being untruthful during an administrative interview and providing false information. However, the record shows that Bernardini gave Plaintiff a high rating on his evaluation around July 2001. Edie Casella, who was the director of Zone 5 from January 2001 to November 2001, testified that she had no concerns about Plaintiff's job performance and felt that Bernardini's ratings of Plaintiff were fair. In addition, Callahan testified that he felt Plaintiff was a very professional police officer who did good, thorough work. Callahan stated that he had no problem assigning sensitive cases to Plaintiff.

  In 2001, Ronald Haring, a retired state police officer who had a contract to perform background investigations for the state police, conducted a background investigation of Shanks. At that time, Shanks had applied for a position with the Illinois State Police as Financial Crimes Investigator. During Haring's investigation, Plaintiff spoke to Haring and confirmed information regarding Shanks providing false testimony during the sentencing hearing in Indiana. Because of this and other negative information regarding Shanks, Haring recommended that Shanks not be hired for the position. Haring was also critical of the fact that Shanks had been hired to work for VMEG with no background investigation. It is undisputed that Fermon hired Shanks into the VMEG position. On September 28, 2001, Fermon sent an e-mail to Rick Karhliker of the Illinois State Police and stated that he would like to have the opportunity to serve as a reference for Shanks and further stated that he was concerned that Haring had placed credence to statements and possibly allegations made by Plaintiff and Mark Christoff. Christoff was Hawthorne's attorney in the Indiana case.

  In November 2001, Fermon became the director of Zone 5. Fermon testified that, at the time he was assigned to Zone 5, he was "operating on a belief that [Plaintiff] had provided information unfavorable to Mr. Shanks to Mr. Haring during his background investigation." Daniel W. Kent was the Deputy Director of Operations for the Illinois State Police from January 25, 1999, to December 31, 2002. Kent and Fermon are friends. In his affidavit, Kent stated that he spoke to Fermon in November 2001 about the conduct and untruthfulness of Plaintiff in administrative reviews and Illinois State Merit Board proceedings. Kent stated that he advised Fermon that he had concerns about the credibility of Plaintiff and his continued assignment in investigations. Kent stated that he advised Fermon to document his concerns about Plaintiff "as it related to his investigative assignments, untruthfulness, and lack of credibility and forward any recommendations to me for review."

  On January 18, 2002, Fermon sent a memo to Diane Carper, who was Region 3 Commander at that time. Carper was Fermon's direct supervisor. In his memo, Fermon recommended that Plaintiff be transferred to a patrol position. Fermon testified that he and Reed prepared the memo. In the memo, Fermon stated that, following his assignment as Zone 5 Commander, he was required to coordinate and schedule Plaintiff's 90-day suspension. He stated that, subsequently, he reviewed Plaintiff's personnel file. Fermon stated that, during his review of the three Department of Internal Investigations (DII) investigative findings, he noted that recurring in each case was a finding that Plaintiff was untruthful to supervisors and DII investigators. Fermon stated that he found Plaintiff's continued pattern of untruthfulness was a matter of considerable concern and "has seriously damaged his ability to provide unquestioned credible testimony in the courts." Fermon noted that, based upon the case of Giglio v. United States, 405 U.S. 150 (1972), the findings regarding Plaintiff's untruthfulness may have to be disclosed as potential impeachment evidence if Plaintiff was going to be a witness at trial.

  Shortly after she received Fermon's memo, Carper went to Utah on assignment during the winter Olympics. Richard Karpawicz filled in for Carper as Region 3 Commander while she was in Utah. Carper testified that she told Karpawicz that there needed to be additional research done before action was taken on Fermon's recommendation. Karpawicz testified that Carper told him that she would handle the matter when she returned from the Olympics. Carper testified that the issue of Plaintiff's transfer should appropriately have gone through the chain of command, which, at that time, was Fermon to Carper to Carper's supervisor, Andre Parker, and then to Kent. However, Karpawicz testified that he was instructed by Kent to process the reassignment of Plaintiff. Callahan testified that Fermon told him that he wanted to get Plaintiff's transfer done while Carper was gone. Callahan also testified that they had a lot of inexperienced investigators at that time and, in his opinion, Plaintiff's experience as an investigator was very much needed. On February 5, 2002, Karpawicz sent a memo to Kent and stated that he concurred with Fermon's recommendation that Plaintiff be reassigned to a patrol position. In his affidavit, Kent stated that he then recommended Plaintiff's reassignment to the Director of the Illinois State Police. Kent stated that, prior to this recommendation, he was not informed of any allegations that Plaintiff had made that Shanks had testified or intended to testify untruthfully. Kent stated that Plaintiff was reassigned to District 10 patrol effective March 1, 2002.

  On February 20, 2002, a memo was issued from Carper to Plaintiff which stated that he would be reassigned to patrol effective March 1, 2002. Karpawicz testified that he actually wrote the memo but put Carper's name on it. Carper testified that she was concerned that her name was on the memo and she was not a part of the decision to reassign Plaintiff. On February 21, 2002, Fermon sent an e-mail to Kent which stated that the e-mail was "Re: Dillon." The e-mail stated, "I could kiss you . . . . . but I will not, thanks so much!" At his deposition, Fermon testified that he could not remember this e-mail but stated that he was pleased that ...


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