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Kasak v. Village of Bedford Park

August 14, 2008

RAYMOND KASAK, PLAINTIFF,
v.
VILLAGE OF BEDFORD PARK AND LEO J. DUBOIS, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

Plaintiff Raymond Kasak ("Kasak" or "Plaintiff") filed a two-count second amended complaint against the Village of Bedford Park ("Village") and its Police Chief, Leo J. DuBois ("DuBois") (collectively "Defendants"). This Court previously granted summary judgment in favor of Defendants on Plaintiff's political retaliation claim in count I. Kasak v. Vill. of Bedford Park, --- F. Supp. 2d ---, 2008 WL 2350920 (N.D. Ill. June 5, 2008). Count II raises a claim for a procedural due process violation against the Village. On May 6, 2008, this Court granted Plaintiff leave to file this claim. Kasak v. Vill. of Bedford Park, 552 F. Supp. 2d 787 (N.D. Ill. 2008). The Village now moves to dismiss count II contending that the Seventh Circuit's June 11, 2008 decision in Michalowicz v. Village of Bedford Park, 528 F.3d 530 (7th Cir. 2008) bars Plaintiff's procedural due process claim. The Court agrees and for the reasons stated below, the Court grants the Village's motion to dismiss count II.

I. BACKGROUND FACTS

A. Plaintiff's Demotion

Plaintiff has been employed by Defendant as a police officer for twenty-three years. Comp. at ¶ 7.*fn1 Plaintiff was promoted from the rank of Patrol Officer to Sergeant in 1987, and was again elevated in 2001 to the rank of Lieutenant. Id. at ¶¶ 8-9. Plaintiff served as supervisor of the Juvenile Division of the Bedford Park Police Department for eighteen years until he was removed on April 30, 2004. Id. at ¶ 10.

On January 23, 2006, Chief DuBois brought the following three charges against Plaintiff: (1) failure to maintain records in the Juvenile Division from 2000-2004; (2) improper order to issue parking citations on December 8, 2005; and (3) efforts to cover up failure to respond to Patrol Officer Woods' December 2, 2005 dispatch call. Id. at ¶ 11. On February 3, 2006, Chief DuBois held a pre-disciplinary hearing on the three charges. Id. at ¶ 26. After hearing testimony from several officers, Chief DuBois withdrew the second and third charges. Id. at ¶¶ 27-28. Chief DuBois sustained the first charge for failure to properly maintain records and double demoted Plaintiff from the rank of Lieutenant to Patrol Officer. Id. at 29. Plaintiff's double demotion serves as the basis for his suit.

Plaintiff appealed Chief DuBois's decision and requested a full administrative hearing before the Village Board of Trustees ("Village Board"). Id. at ¶ 20. In March 2006, the Village Board held an administrative hearing regarding Plaintiff's appeal and upheld the double demotion. Id. at ¶¶ 31, 93.

B. The Litigation

On September 21, 2006, Plaintiff filed his original complaint ("Original Complaint"). Dkt. 1. Plaintiff's Original Complaint asserted three retaliation counts against the Village and Chief DuBois for: (1) union-related speech and activity; (2) politically related speech and association; and (3) exercise of freedom of speech.

Plaintiff filed a first amended complaint on June 8, 2007, which contained the same counts alleged in the Original Complaint. Dkt. 49. Defendants moved to dismiss counts I and III, and filed answers to count II. On September 18, 2007, the Court dismissed counts I and III, leaving only count II for retaliation against political speech and association. Kasak v. Vill. of Bedford Park, 514 F. Supp. 2d 1071 (N.D. Ill. 2007).

The Court set a discovery cut-off date of December 31, 2007. The parties substantially complied, with the exception of Village Board Trustee Robert Regep's ("Regep") deposition, which was taken in early January 2008. During his deposition, Regep revealed for the first time that the Village Board decided to double demote Plaintiff well in advance of the administrative hearing before the Village Board. Compl. at ¶¶ 86-88, 92. The Village Board directed Chief DuBois to draw up the charges against Plaintiff which were then presented to the Village Board for hearing. Id. at ¶ 88.

On February 18, 2008, Plaintiff moved to file his second amended complaint to add a new count for procedural due process (count II). Dkt. 79. The following day, Defendants filed motions for summary judgment on the political retaliation count and objections to Plaintiff's motion for leave to file the second amended complaint. Dkt. 90. On May 6, 2008, the Court granted Plaintiff leave to file the second amended complaint. Kasak v. Vill. Of Bedford Park, 552 F. Supp. 2d. 787 (N.D. Ill. 2008).

Defendant now moves to dismiss Count II of Plaintiff's second amended complaint for failure to state a claim upon which relief can be granted. ...


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