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Patrick v. City of Chicago

September 30, 2009

JERRY PATRICK, PLAINTIFF,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Jerry Patrick ("Patrick") was discharged from his employment with the City of Chicago ("City") following his arrest in 2004. The first two counts of his amended four-count complaint assert state law claims directed solely against the City: Count I is a "Petition for Writ of Certiorari" seeking reversal of the City of Chicago Personnel Board ("Personnel Board") order upholding Plaintiff's discharge and Count II requests a "Writ of Mandamus" ordering the City to comply with certain rules and to reinstate Plaintiff. The remaining two counts name, in addition to the City, Miguel d'Escoto ("d'Escoto"), William Marback ("Marback"), James Taggart ("Taggart"), and George Catezone ("Catezone") in both their individual and official capacities for their role in Plaintiff's termination:*fn1 Count III is a Fifth Amendment claim brought pursuant to 42 U.S.C. § 1983 and Count IV is another Section 1983 claim for invasion of privacy.*fn2

Before the Court are Defendants' and Plaintiff's cross-motions for summary judgment on all counts of Plaintiff's amended complaint pursuant to Fed. R. Civ. P. 56. In this opinion, the Court addresses the federal claims in Counts III and IV on the merits. For the reasons set forth below, the Court grants Defendants' motion for summary judgment [107] and denies Plaintiff's cross-motion for summary judgment on those claims. In view of that disposition of the federal claims, Plaintiff's state law claims -- Counts I and II of his amended complaint -- are dismissed without prejudice pursuant to "usual practice" in the Seventh Circuit when "all federal claims have been dismissed prior to trial." Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999).

I. Facts

Patrick was appointed to the position of Cement Mixer with the City's Department of Streets and Sanitation ("CDSS") on June 28, 1984. Def. SOF ¶ 1. From January 1, 1993 until his discharge on March 31, 2005, Patrick was employed as a Cement Mixer with the City's Department of Transportation ("CDOT"). Id. As a Cement Mixer, Patrick was a member of Local No. 76 of the Cement Worker's Union/Laborer's International Union of North America ("Local No. 76") and the terms and conditions of his employment were governed by the provisions of the Collective Bargaining Agreement ("CBA") between Local No. 76 and the City. Id. ¶ 2. While off-duty on Sunday, May 16, 2004, Plaintiff was arrested for possession of a controlled substance, specifically crack cocaine, by Chicago Police Department ("CPD") officers, who notified the City's Inspector General's Office ("IGO") of Plaintiff's arrest. Id. ¶ 19.

The Interview

Plaintiff subsequently was interviewed on July 13, 2004 by Individual Defendants and IGO Investigators Marback and Taggart. Def. SOF ¶ 47.*fn3 Marback advised Plaintiff of his "administrative rights," which Marback testified are given to City employees accused of misconduct -- that is, if the IGO is "strictly investigating whether or not there were violations of the Personnel Rules of the City of Chicago." Id. ¶ 48. Despite the fact that criminal charges were pending, the Inspector General ("IG") for the City of Chicago at that time, Alexander Vroustouris ("Vroustouris"), decided that Plaintiff would be read "administrative rights" because the IGO was not going to seek a criminal prosecution of Plaintiff. Pl. SOF ¶ 115. Another IGO employee present at the interview, William Kirby, testified that there was a "criminal aspect" as well as an "administrative aspect" to Plaintiff's situation. Id. The union president representing Plaintiff at the interview requested that the IGO comply with Paragraph 4.3(H) of the CBA and give Plaintiff his criminal rights at the interview or cancel it. Id. ¶ 116. The interview went forward. Id.

Section 4.3(H) of the CBA between the City and Local No. 76, entitled "Conduct of Disciplinary Investigations," states:

(1) If the allegation under investigation indicates a recommendation for discipline is probable against the employee, said employee will be given the statutory administrative proceeding rights prior to the commencement of the interview. (2)

If the allegation indicates that criminal prosecution may be probable against said employee, the provisions of this Section shall be inapplicable and said employee will be afforded his constitutional rights concerning self-incrimination prior to the commencement of the interview. An employee will not be read his/her administrative and Miranda rights at the same interview.

Def. SOF ¶ 75. IGO criminal investigations are procedurally managed with an eye to prosecuting the individual criminally. Id. ¶ 91. An administrative investigation by the IGO is undertaken and procedurally managed with the focus on whether disciplinary action -- not criminal prosecution -- is appropriate against a City employee. Id. ¶ 92. Vroustouris testified that a criminal investigation is not undertaken if an individual already has been arrested. Id. ¶ 91. Section 4.3(O)(1) of the CBA provides: Any evidence or information including employee statements that is obtained in violation of the rights enumerated in this Section 4.3, shall be suppressed and shall not be used by the Employer for any disciplinary action against the employee, or in the case of promotions or transfers.

Id. ¶ 76.

Plaintiff agreed that Marback advised him of his "administrative rights" and that he responded "yes" when asked "Do you understand that if you refuse to answer any questions put to you, you'll be ordered by a superior officer to answer the questions. Do you understand that?" Def. SOF ¶ 54. Plaintiff also answered "yes" when asked: "Do you understand that if you persist in your refusal after the order has been given to you, you are advised that such a refusal constitutes a violation of the Personnel Rules of the City of Chicago, Rule XVIII, Section 1, paragraph 25, and may serve as a basis for which your discharge will be sought. Do you understand that?"; and "Do you understand that by law any admission or statement made by you during the course of this interview and the fruits thereof cannot be used against you in a subsequent criminal proceeding; do you understand that?" Id. ¶¶ 55-56. Marback testified that the IGO does not have the power to bring criminal charges, but it can grant "use immunity" from state prosecution for statements made during the course of an administrative interview. Id. ¶ 52.*fn4

Although Marback testified that absent a court order or subpoena, it would be improper for the IGO to forward an administrative interview to the State's Attorneys Office, the Chicago Municipal Code ("CMC") does not require that formality if the files and reports are divulged to the U.S. Attorney, Illinois Attorney General, or Cook County State's Attorney. Id.; Pl. Resp. ¶ 52.

Before any city officials asked Plaintiff any questions, Plaintiff's supervisor, Defendant Catezone, entered the room and instructed Plaintiff to cooperate and answer all questions truthfully and completely and advised Plaintiff that his failure to do so may result in discipline. Def. SOF ¶ 50. Specifically, Catezone told Plaintiff, "As your superior, I'm ordering you to cooperate with the IGO of the City of Chicago and answer all questions put to you truthfully and correctly" and "Pursuant to the Personnel Rules of the City of Chicago, your failure to obey my order may serve as a basis for which your discharge would be sought." Id. ¶ 64. Immediately after making that statement, Catezone exited the interview room and returned to work because he was told he was not needed for anything further. Id. ¶ 100. Catezone did not know whether the questions asked during the interview would be specifically, directly, and narrowly related to Plaintiffs official job duties before he directed Plaintiff to answer. Pl. SOF ¶ 117.

Vroustouris left to Marback and Taggart's discretion what questions to ask during Plaintiff's interview. Pl. SOF ¶ 118. During the July 13, 2004 interview, Plaintiff answered questions relating to his date of birth, social security number, job title and duties and where he lived. Def. SOF ¶ 51. He denied "using illegal substances and smoking crack cocaine" and testified that he understood that it was "a violation of the Personnel Rules of the City of Chicago as well as the criminal laws of this state to purchase illegal substances." Id. ¶ 84. He answered "No," when asked the following questions: "Are you currently addicted to crack cocaine?"; "Have you ever been addicted to crack cocaine?"; and "Have you ever been addicted to any drugs?" Id. Marback asked Plaintiff if he was addicted to crack cocaine because he felt that it was relevant to determining whether Plaintiff was a danger to his co-workers and members of the public. Pl. SOF ¶ 126. Marback did not determine that Plaintiff was a danger, nor did he give Plaintiff a drug test. Id. Marback testified that when he asked Plaintiff if he had ever been addicted to cocaine he was referring only to Plaintiff's time as a City employee. Id. ¶ 127. Vroustouris acknowledged that only during employment with the City can addiction be a violation of the Personnel Rules. Id. Marback testified that when he asked Plaintiff if he had ever been addicted to any drugs, Marback was referring only to Plaintiff's time as a City employee and that the question was relevant to determining whether Plaintiff presented a danger to his co-workers or the public. Id. ¶ 128. Marback did not think that the question violated Plaintiff's privacy rights. Id. Vroustouris testified that he did not believe that he asked Plaintiff's supervisors whether Plaintiff was impaired in the performance of his job and that he never asked Plaintiff to take a drug test. Id. ¶ 134.

Marback asked, as a "lead-off question," whether Plaintiff ever had been arrested at any time prior to May 16, 2004 and the circumstances surrounding the arrest. Pl. SOF ¶ 124. He later testified that he did not have the right to inquire about arrests in Plaintiff's entire lifetime during an interview about one arrest but did not consider it a violation of Plaintiff's right to privacy. Id. Vroustouris testified that Plaintiff's arrests prior to employment with the City that did not result in a conviction are not relevant to the performance of Plaintiff's job duties and that he did not believe that applicants to the City were asked if they had ever been arrested. Id. Marback asked Plaintiff if he had ever been convicted of a crime. Id. ¶ 125. Vroustouris testified that questioning a City employee on this subject is related to their official duties because the conviction could be a violation of the Personnel Rules and could be used to determine if the employee had misrepresented information on the employment application, although he did not believe that a conviction was a bar to employment with the City. Id. Marback had asked about pre-employment convictions before. Id.

Marback asked Plaintiff who he resided with. Pl. SOF ¶ 119. Taggart testified this was "background information" and Marback said it was asked because others could be "potential witnesses." Id. Vroustouris testified that who a City employee resides with, for how long, what they do for a living, and how long they worked at their jobs were all "legitimate questions." Id. Vroustouris, Taggart, and Kirby all have asked that type of question before. Id. Marback asked Plaintiff if he and his wife had been separated and whether his stepdaughter, living with Plaintiff, was his wife's child from a previous relationship. Id. ¶ 120. Marback said the questions were relevant because they could be potential witnesses. Id. Marback asked Plaintiff whether his wife worked outside the home, where she worked, and for how long. Id. ¶ 121. Marback testified that he asked that question to determine if she was a City employee and therefore if she was also involved in the potential Personnel Rule violations. Id. Marback asked Plaintiff where his mother worked. Id. ¶ 122. Marback later testified that the question was asked to determine if Plaintiff's mother was a City employee. Id. When Plaintiff responded that she worked for a notfor-profit agency, Marback asked which one because "there's potential that the not-for-profit" that his mother worked for "was a delegate agency" of the City. Id. Marback asked Plaintiff whether he had relatives or family members who work for the City, Chicago Transit Authority, Chicago Board of Education or Chicago Park District. Id. ¶ 123. He testified that he asked that question to determine whether they were potential witnesses who worked for those agencies and "might have knowledge about his drug use." Id.

Vroustouris testified that all of the questions asked of Plaintiff during the interview were "specifically, directly and narrowly related to his official duties." Pl. SOF ¶ 131. According to Marback and Vroustouris, none of the questions asked during the interview violated Plaintiff's right to privacy. Id. ¶¶ 132, 136. In the thousands of investigatory files Vroustouris reviewed, he never determined that an investigator violated an employee's right to privacy. Id. ¶ 136.

On the advice of his attorney, Plaintiff refused to answer the following questions about the events of May 16, 2004 on the grounds of self-incrimination in his pending criminal case:

1. Approximately 1:30 p.m. were you in the vicinity of 751 South California Avenue in Chicago?

2. Isn't it true, Mr. Patrick, that on May 16th 2004 at approximately 1:30 p.m., you were in the vicinity of 751 California Avenue in Chicago to purchase crack cocaine?

3. Isn't it true that on that date, time and location you did, in fact, purchase crack cocaine?

4. Isn't it true that Chicago police officers after observing you purchase crack cocaine from another person that they approached you?

5. Isn't it true that Chicago police officers recovered from your right hand a clear plastic bag that contained crack cocaine?

6. Isn't it true that after you were placed under arrest, a search incident to that arrest was conducted by Chicago police officers?

7. Isn't it true that pursuant to that search, the Chicago police officers recovered from your right shoe two additional bags each containing crack cocaine?

8. Why were you at this location at 751 South California on May 16th, 2004 at 1:30 p.m.?

9. Did you make any statements to the police after you were arrested? 10. Were you approached by Chicago police officers on May 16th, 2004 at 1:30 p.m.?

11. You agree that on May 16th, at 1:30 p.m., you were, in fact, at 751 South California?

Def. SOF ¶ 83. He testified at the hearing that he did not answer specific questions about his pending criminal case because he was "still going through a trial with the State" and because the charged conduct, which occurred on a Sunday at a time when he was "not getting paid from the City," did not have anything to do with his job. Id. ¶ 62.

During his interview with Marback and Taggart, Plaintiff explained that he was a member of the "break-out crew" breaking up curbs and gutters. Pl. SOF ¶ 129. He did not operate equipment or machinery as part of his job duties. Id. The job duties of a cement worker with the City are defined by a job description. Id. ¶ 133.

The only question that Taggart asked Plaintiff during the interview was when the hours of work at CDOT changed during Spring and Winter -- a question answered by Plaintiff's union representative. Def. SOF ¶ 96. After the interview, Taggart did not play any role in the IGO's investigation of Plaintiff and did not have any conversations with Marback regarding Plaintiff's case. Id. ¶ 97.

Marback found that the information in Plaintiff's file was sufficient to "sustain" the charges against Plaintiff. Pl. SOF ¶ 135. Vroustouris then reviewed the investigatory file, including the complete transcript of the interview. Id. After a case went through the review process at the IGO, Vroustouris made the ultimate decision as to whether there was sufficient evidence to recommend discipline. Id. His recommendation does not require approval, but the ultimate effectuation of that recommendation does need approval by the City Law Department. Id. Vroustouris drafted the IGO Arrest Notification Procedure which stated:

In the case of an interview which results in no admission by the accused, and after consultation with the investigator's supervisor, the investigator assigned to the case shall track the progress of the criminal case, and shall submit reports for the case file as to the status of the criminal case following each court date. The decision to sustain or not to sustain this type of arrest will be made at the conclusion of the criminal case.

Id. ¶ 137. Plaintiff did not make any admissions. Id. ¶ 138. Vroustouris did not recall reviewing the tracking sheets when he reviewed Plaintiff's IGO file. Id. Vroustouris recommended termination on February 14, 2005, before ...


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