The opinion of the court was delivered by: Judge Blanche M. Manning
Plaintiff Ramon Ibarra has filed an action under Title VII, 42 U.S.C. § 2000e et seq., against the Office of the Chief Judge of the Circuit Court of Cook County. Ibarra claims that the defendant discriminated against him on the basis of his national origin when it imposed certain disciplinary measures after his arrest for driving under the influence. The defendant has moved for summary judgment. For the reasons stated below, the motion [#43-1] is granted.
A. Department Disciplinary Policies and Procedures
Ibarra is an Hispanic male. Veronica Ballard was employed by the defendant as chief probation officer from September 1999 to August 1, 2005. Donna Vaughan has been employed by the adult probation department since 1987 and is currently the director of human resources for the adult probation department. One of Vaughan's duties as director of human resources was to maintain disciplinary records of employees, including Ibarra. She also has imposed discipline on offending probation officers. According to Vaughan, the adult probation department strictly follows the collective bargaining agreement ("CBA") when disciplining its employees. The CBA loosely lays out what types of things for which probation officers can be disciplined.
The adult probation department policy 02.20.01-.05 is entitled Corrective Actions Plan (Disciplinary Procedures) which generally outlines options to correct unacceptable conduct and infraction, but does not outline all potential violations. Other than for verbal reprimands, the Chief Judge is the person who ultimately imposes discipline after a recommendation from the chief probation officer. The recommendations are prepared by Vaughan as the director of human resources at the direction of the chief probation officer.
Vaughan was involved in updating the policy governing disciplinary procedures ("Policy"), which states what are considered to be major cause infractions. With respect to major cause infractions, the Policy states in part:
Disciplinary action for major cause infraction need not be progressive. Major cause is defined as, but not limited to, the following behavior by an employee on duty or on the premises of any county facility:
1. Use, possession of, or being under the influence of alcohol, controlled substances or unprescribed drugs;
3. Employee or visitor abuse;
4. Unauthorized use of weapons;
5. Willful destruction of property;
6. Gross insubordination;
7. Theft of employee or county property;
8. Negligence in performance of duties;
9. Misuse of timekeeping facilities or records;
10. Absence for three (3) consecutive workdays without notifying the immediate supervisor or chief judge's designee; and
11. Conviction of a county or municipal ordinance violation; state or federal misdemeanor, felony or plea of nolo contendere, regardless of whether on duty or on the premises of any county facility.
During her deposition, Vaughan testified that discipline may be imposed through the general code of conduct in any number of circumstances including errors in judgment, misconduct, policy violations, ethical issues, embarrassment to the court or for some things that reflect on the integrity of the court because of the position of public trust. According to Vaughan, not everything that may require discipline could be found in a policy and good judgment and common sense must prevail because the defendant is in a position of public trust.
The Policy authorizes the use of temporary suspensions when criminal charges are pending against an employee.
B. Ibarra's Employment and Discipline History
Ibarra was hired by the defendant to work in its Cook County adult probation department in December 1989 as a probation officer in the Home Confinement division. Vaughan made the recommendation to hire Ibarra. Probation officers must take a written and oral test to earn a promotion. Ibarra has sought and been denied a promotion on three occasions prior to his arrest, which is described below. On at least one of these occasions, Ibarra met the criteria to merit a promotion. Ibarra has not submitted himself for promotion since his arrest.
In or around 1995, Ibarra was transferred from Home Confinement to the Intensive Probation Services ("IPS") division, which is apparently a weapon-carrying unit. Ibarra considers the IPS to be a more prestigious assignment than the Caseload division because members of the IPS have more responsibility, can direct their own schedules, and generally have more freedom.*fn1
In January 2003, Ibarra was arrested for the misdemeanor traffic offense of driving under the influence after he struck a parked vehicle. The owner of the vehicle contacted the police who, upon arrival at the scene, smelled alcohol on Ibarra's breath and subjected him to a Breathalyzer test. The test indicated that Ibarra's blood alcohol level was .2, which was in excess of the legal intoxication limit of .08. Ibarra is subject to performance appraisals by his supervisor and has received numerous honors and commendations in his role as a probation officer. Prior to the DUI incident, Ibarra's appraisal scores were consistently above average. Ibarra testified that after the DUI incident, his scores have fallen noticeably, but fails to cite to any record evidence in support of this testimony. Ibarra also testified that he was told by his supervisor, Vince Curry, that due to the incident, it was impossible for Ibarra to attain a high appraisal score and receive "merit pay." The defendant objects to this last statement on the ground that it is hearsay. The objection is overruled on the ground that the statement is not hearsay because it is an admission of a party-opponent under FRE 801(d)(2).
Ibarra complied with departmental policy by timely reporting his arrest to the adult probation department. Several days after his arrest, on or about February 4, 2003, Ibarra received written notice from Ballard that he was being placed on temporary suspension pending the outcome of his case. Ballard knows of no document authorizing her to place Ibarra on temporary suspension. Ibarra filed a grievance for the purpose of contesting the suspension.
Ibarra returned to work on February 21, 2003. Ibarra's criminal record did not reveal any other involvement with the criminal justice system of which the department was not aware nor did his personnel file indicate that he had received any other discipline. Vaughan participated in a discussion about allowing Ibarra to return to an armed position when he had criminal charges pending against him. Ibarra returned to the same position but with restricted duties, which provided that he could not drive a car, could not do field work, could not possess a weapon, and could not have any additional cases pending with DUI charges involved.
On March 27, 2003, Ibarra pled guilty to the DUI charge and was fined and sentenced to 18 months of court supervision. The policy and procedures manual for the adult probation department contains no specific policy regarding court supervision. While defendant asserts that, as a result of the guilty plea, Ibarra was no longer authorized to carry a weapon, Ibarra testified in his deposition that on July 3, 2003, he obtained an order from the criminal court allowing him to carry his weapon. On August 18, 2003, Ballard advised Ibarra in writing that the final ruling on his suspension was for a 15-day suspension of which 12 had already been served. On August 28, 2003, Ibarra received written notice from Vaughan indicating that he was being required to take a psychological evaluation on September 4, 2003. At that time, the authority to send Ibarra for a psychological evaluation stemmed from the CBA, which states that the employer has the authority to direct its business operations and determine qualifications.
Vaughan testified in her deposition that it has always been the practice of the defendant to require an officer that has left the weapons carrying unit to submit to a psychological reevaluation because it is required for initial placement into the weapons-carrying unit. Ibarra points to Vaughan's other testimony that Eric Krystiniak, a white member of the weapon- carrying unit, was suspended from the weapon-carrying unit for his involvement in a road rage incident in which he brandished his service weapon, but was not required to undergo any reevaluation upon his return to the unit. However, an arbitrator ordered the defendant to allow Krystiniak to return to his post without any conditions.
Vaughan testified in her deposition that Ibarra had a Diagnostic and Statistical Manual IV diagnosis from his initial psychological examination stating that he was "high risk," which led the defendant to believe that in order to safeguard Ibarra and itself it was necessary for Ibarra to be reevaluated. The initial evaluation also indicated that he was making good progress and had a good prognosis. Ibarra's circumstances of a DSM-IV diagnosis arising from ...