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Patrick v. City of Chicago

March 28, 2007

JERRY PATRICK, PLAINTIFF,
v.
THE CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

This lawsuit arises out of the City of Chicago's (hereinafter "the City") termination of Plaintiff Jerry Patrick (hereinafter "Plaintiff"). Plaintiff's complaint seeks Writs of Certiorari and Mandamus (Counts I and II, respectively) and alleges violation of his Fifth Amendment rights (Count III) and an invasion of privacy (Count IV). Defendants, collectively, moved for dismissal of Counts II, III, and IV, a more definite statement as to Count III, and dismissal of the individual defendants. The motion is granted in part and denied in part.

I. BACKGROUND

Plaintiff alleges the following facts in his Complaint. The City employed Plaintiff as a cement mixer for twenty years. Plaintiff was a member of Local Number 76 of the Cement Workers Union/Laborer's International Union of North America. As a "Career Service" employee, Plaintiff could only be discharged for good cause pursuant to the personnel rules, applicable Collective Bargaining Agreement, and other applicable policies. Plaintiff asserts that he, at all times, duly discharged his duties and complied with all employment requirements.

On May 16, 2004, Plaintiff was arrested on a drug related charge while off-duty; law enforcement officials notified the City's Inspector General ("IG") about Plaintiff's arrest. On July 13, 2004, Defendant IG investigators William Marback ("Marback") and James Taggart ("Taggart") interrogated Plaintiff. Plaintiff's supervisor, George Catezone ("Catezone"), ordered Plaintiff to answer Marback and Taggart's questions. At the interrogation, Plaintiff was sworn in and his statement was transcribed; Marback informed Plaintiff that refusal to answer questions could result in dismissal and that statements made during the interview could be used as a basis for discharge. Marback asked Plaintiff a series of questions relating to the May 16 arrest, prior arrests, and drug addiction. Plaintiff refused to answer, and the IG thereafter recommended that Plaintiff be terminated in part because Plaintiff refused to answer the interview questions. Plaintiff was discharged by Defendant Miguel d'Escoto ("d'Escoto") on March 31, 2005. The reasons given were (1) his arrest and (2) his alleged failure to cooperate with the IG's investigation.

Plaintiff alleges that he properly declined to answer questions because Section 4.3(H) of the Collective Bargaining Agreement provides that an employee will be afforded his constitutional rights concerning self-incrimination if the allegation indicates that criminal prosecution may be probable. Additionally, Section 4.3(O)(1) provides that evidence or information obtained in violation of Section 4.3 shall not be used by the employer for any disciplinary action against the employee. Plaintiff alleges that Marback and Taggart did not explain Plaintiff's Constitutional rights or tell Plaintiff that any answers he did give could not be used in subsequent criminal proceedings (so-called "use immunity," part of Plaintiff's "administrative rights"). The "Findings and Decision" of the Human Resources Board of the City of Chicago, attached to Plaintiff's Complaint as an exhibit, indicates that the Board found that Plaintiff was given his administrative rights.

After his termination, Plaintiff requested a hearing by the City of Chicago Personnel Board, and a proceeding was commenced. On April 11, 2006, the Board rendered a final decision upholding Plaintiff's termination.

II. STANDARD

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint rather than the merits of the case. Autry v. Northwest Premium Services, Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). The motion should be granted only if the plaintiff can prove no set of facts in support of his claim which would entitle this Court to grant him relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In determining whether the motion should be granted, a court accepts as true all well-pled factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002). A court need not ignore facts in the complaint that undermine the plaintiff's claim, and thus may rely on an exhibit that contradicts an assertion made in the complaint. Perkins v. Silverstein, 939 F.2d 463, 469 n.4 (7th Cir. 1991).

Under Rule 12(e), if a pleading is so "vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading," a more definite statement may be ordered. Direct Communications, Inc. v. Horizon Retail Const., Inc., 387 F.Supp.2d 828, 831 (N.D. Ill. 2005). A motion for a more definite statement is intended to eliminate confusion, not replace discovery. Id.

III. DISCUSSION

A. Count II: Writ of Mandamus

A writ of mandamus commands the officer or body to whom it is directed to perform a specific duty to which the petitioner is entitled by right. People ex rel. Rappaport v. Drazek, 30 Ill.App.3d 310 (1st Dist. 1975). To state a claim for mandamus, the plaintiff must show that (1) he has a clear right to the relief sought, (2) the defendant has a clear duty to perform, (3) and no other adequate remedy is available. Blaney v. U.S., 34 F.3d 509, 513 (7th Cir. 1994); Allgood v. City of Chicago, 2006 WL 2682302 at *4 (N.D. Ill. Sept. 18, 2006).

1. Timeliness

The City argues that Plaintiff's Writ of Mandamus should be dismissed as untimely. Absent a reasonable explanation, a request for mandamus must be brought within six months of the act giving rise to the cause of action. Rexroat v. Abatte, 163 Ill.App.3d 796, 799 (3d Dist. 1987). The City asserts that Plaintiff's action accrued on March 31, 2005 - the date of Plaintiff's discharge - and that Plaintiff's claim is thus untimely.

Plaintiff maintains that his cause of action is not untimely because he was required to exhaust his procedural remedies before filing a mandamus action. See Ducker-Bey v. Mayer, 1982 U.S. Dist. LEXIS 11640 at *4 (N.D. Ill. March 8, 1982); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001). The City argues that Ducker-Bey and Johnson are distinguishable because both cases were brought pursuant to statutes that specifically required exhaustion of administrative remedies. See Ducker-Bey, 1982 U.S. Dist. LEXIS 11640; Johnson, 272 F.3d at 522. Although the City is correct that the cases involve significantly different factual scenarios, this is a distinction without a difference. In Holmes v. U.S. Board of Parole, 541 F.2d 1243 (7th Cir. 1976)(overruled in part on other grounds in Solomon v. Bensen, 563 F.2d 339 (7th Cir. 1977)), the court states "[e]xhaustion of administrative remedies is required prior to the issuance of mandamus relief. This is consistent with the dictate that mandamus will not issue if an alternative fully adequate remedy exists." Holmes, 541 F.2d at 1247 (internal citations omitted). Although Holmes (like Ducker-Bey and Johnson) involves a statute that required the exhaustion of administrative remedies, Holmes ties the requirement of exhaustion to the requirements for mandamus, not the statute requiring exhaustion. Id.

Because mandamus cannot issue until Plaintiff can show that no other fully adequate remedies exist, he is caught in a "procedural catch 22" if required to file within six months of his termination -- when his administrative remedies are not exhausted. See generally Johnson, 272 F.3d at 522. If Plaintiff had to file by September 30, 2005, as the City asserts, then he could not have made out a case for mandamus -- he would have been unable to show that there were no fully adequate alternative remedies. As such, this Court finds the claim for mandamus, commenced less than six months after the Chicago Personnel Board's final decision on April 11, 2006, to be timely.

2. Clear Duty

The City also argues that the mandamus claim should be dismissed because Plaintiff cannot establish that he possesses a clear right to the desired relief or that the City has a clear duty to perform. Blaney, 34 F. 3d at 513. To obtain a writ of mandamus, a plaintiff must show a "clear legal right to the relief requested[;] the performance of a duty or act involving the exercise of judgment or discretion is not subject to review . . . by mandamus." Pillar v. Village of Beecher, 64 Ill.App.3d 887, 889 (3d Dist. 1978). Courts have recognized an exception to this rule where "there is a clear abuse of discretion or where an official arbitrarily refuses to exercise any discretion at all." Id. Mandamus ...


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