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Lallave v. Biermann

November 5, 2010

RICARDO J. LALLAVE, PLAINTIFF,
v.
DAVID BIERMANN AND DARRELL SANDERS, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on a Motion for Summary Judgment (#12) filed by Defendants David Biermann and Darrell Sanders. This court has carefully considered the arguments of the parties and the documents presented by the parties. Following this careful and thorough consideration, the defendant's Motion for Summary Judgment is GRANTED.

JURISDICTION

Jurisdiction of this court is premised on 28 U.S.C. § 1331, federal question jurisdiction. Plaintiff has filed the instant action pursuant to 42 U.S.C. § 1983.

BACKGROUND

A. Undisputed Facts

Plaintiff was employed by the Illinois Department of Human Services and was represented by the American Federation of State, County, and Municipal Employees, AFSCME.

Sometime before January 2007, several of Plaintiff's co-workers filed allegations with the management that Plaintiff had engaged in sexually harassing behavior toward them. On January 3, 2007, Plaintiff was placed on administrative leave with pay, pending investigation of the allegations. On March 19, 2007, Plaintiff participated in a pre-disciplinary hearing, with Defendant Biermann presiding as the hearing officer. A union representative and a management representative were present during the hearing.

After the hearing, Biermann prepared a memorandum for Defendant Sanders, who was the facility's Security Director, recommending that Plaintiff's employment be suspended without pay for 30 days. Around March 20, 2007, Sanders concurred with the recommendation for a 30-day suspension and forwarded all relevant information including the recommendation for a 30-day suspension to the Office of the Director of the Department of Human Services. The Office of the Director had independent and ultimate authority to determine Plaintiff's discipline. Plaintiff received a 30-day suspension from the Illinois Department of Central Management Services, effective March 22, 2007, with reinstatement to occur on April 21, 2007.

Plaintiff then filed a grievance with the bargaining unit regarding the suspension, arguing that he was being disciplined by being placed on administrative leave and then suspended for 30 days. In response, management answered that administrative leave is not a form of discipline, and, based on an investigation outside the facility and the severity of the incident, a 30-day suspension was recommended and approved for Plaintiff. The union accepted the management's response and on April 20, 2007 notified Plaintiff that the union would not continue to pursue Plaintiff's grievance to the next level. Memorandum of Law in Support of Motion for Summary Judgment (#13, pp. 1-4).

B. Contested Facts

Plaintiff admits all of the above facts, but states that Biermann and Sanders had, prior to the pre-disciplinary hearing, already decided on the disciplinary action to be imposed. Plaintiff states that the hearing, which was conducted by Biermann, and the recommendation, which was approved by Sanders, were sham proceedings. Plaintiff alleges the following incidents provide evidence that the sentence imposed had been a foregone conclusion, notwithstanding any arguments he made or evidence he presented at the pre-disciplinary hearing:

1) On March 5th, 2007, two weeks before the pre-disciplinary hearing was scheduled to occur, Defendants had approached Plaintiff outside the work environment and had informed Plaintiff that he was going to receive a 30-day suspension.

2) During the pre-disciplinary hearing, Biermann asked the plaintiff if he "remember[ed] the conversation with Mr. Sanders at the gym," and when he replied in the positive, "he stand [sic] up and leaves."

3) Part of Biermann's recommendation would be that Plaintiff would be required to successfully complete sexual harassment training for his actions. However, Plaintiff had already received an order dated March 6th and signed five days before the pre-disciplinary hearing (March 14th) that he would be required to attend sexual harassment training. He attended and completed the training on March 20, 2007, two days before the discipline was approved. Memorandum of Law in Opposition to Summary Judgment (#18, pp. 2-4).

C. Procedural History

On February 17, 2009, Plaintiff filed his complaint in the instant case, alleging that Defendants, as public employees, deprived him of a property interest in his employment without due process of law by suspending him for 30 days without providing a reasonable opportunity to respond to their allegations, contrary to the rights afforded to him under the Fourteenth Amendment. Plaintiff has requested that the court issue the following forms of relief: 1) a declaratory judgment that the conduct in question violates 42 U.S.C. ยงยง 1983 and 1988; 2) an injunction prohibiting Defendants from engaging in any actions toward Plaintiff that have been found to have violated due process; 3) an injunction ordering DHS to reinstate to Plaintiff all his "employment duties, rights and obligations attendant to his position of employment which he would have held at the time of trial but for the unlawful conduct complained of in this complaint"; 4) damages sufficient to compensate Plaintiff for economic ...


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