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Donald Olendzki v. Neil Rossi

January 18, 2012

DONALD OLENDZKI, PLAINTIFF,
v.
NEIL ROSSI, BECKY SUDBRINK, RICHARD PILLOW, JENNIFER ) STOUDT, TERRY POLK, AND RICHARD ORR, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge:

E-FILED 3:08-cv-03196-RM-BGC # 31 Page 1 of 59

Thursday, 19 January, 2012 11:39:58 AM

Clerk, U.S. District Court, ILCD

OPINION

Donald Olendzki, an Illinois Department of Corrections psychologist, has filed this § 1983 action against six of his supervisors.

He claims that Defendants retaliated against him because of his union advocacy, in violation of the First Amendment.

In sum, and for the reasons that follow, the Defendants' summary judgment motion is Allowed.

I. INTRODUCTION

Since 1989, Plaintiff Donald Olendzki has been employed with the Illinois Department of Corrections as a Psychologist III at the Jacksonville Correctional Center (JCC). In 2004, the Plaintiff was elected to the Executive Board of Local 3549 of the American Federation of States, County, and Municipal Employees ("AFSCME"). In that office, he represented its members in labor disputes with the management team at the JCC.

The Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983, wherein he alleged that Defendants retaliated against him in violation of his First Amendment rights for activities conducted on behalf of his union. The named Defendants include six of his supervisors: Neil Rossi, Becky Sudbrink, Richard Pillow, Jennifer Stoudt, Terry Polk, and Richard Orr.*fn1

The Defendants claim that summary judgment is warranted for a number of reasons. They contend that: (1) several claims are time-barred; (2) the Plaintiff has failed to identify constitutionally protected activity; (3) the Plaintiff has no evidence that Defendants' alleged actions were caused by protected activity engaged in by the Plaintiff; (4) the Plaintiff has not demonstrated that he has suffered a deprivation under the First Amendment; (5) even if the Plaintiff could assert a prima facie case of retaliation, the evidence shows that Defendants acted for valid non-retaliatory reasons; and (6) the Defendants are entitled to qualified immunity. The Plaintiff contends that Defendants' contentions are without merit.

II. FACTUAL BACKGROUND

(A)

The Plaintiff filed his Complaint on September 10, 2008. Several of his claims concern incidents that occurred more than two years prior to the Complaint's filing, including: (1) the Plaintiff's claim that his pager was removed on June 8, 2006; (2) his claim he was removed from his responsibilities to engage in after hour call back activities on June 8, 2006; and (3) his claim he was prevented from making decisions regarding the observation and care of suicidal inmates in 2005 because Defendant Sudbrink did not inform him about a torn safety smock.

Defendant Neil Rossi became the Assistant Warden of Programs at the JCC in 2004. The Plaintiff reported to Rossi from 2004 until February of 2005. From February of 2005 until November 15, 2006, the Plaintiff's direct administrative supervisor was Defendant Becky Sudbrink, who is the Health Care Unit Administrator for the JCC. Sudbrink has not supervised the Plaintiff since November 15, 2006. Effective November 15, 2006, by order of Warden Terry Polk, the Plaintiff was supervised by the Assistant Warden of Programs. At that time, Assistant Warden Rossi informed the Plaintiff that he no longer fell under the Health Care Unit. He was now considered part of Programs.

The Plaintiff claims that he suffered retaliation for activities he allegedly engaged in on behalf of the union, including but not limited to the following: (1) participating in labor management meetings and safety and health committee meetings; (2) representing union members in the presentation of grievances; and (3) representing union member Missy Utter during a September 2006 meeting with Defendants Rossi and Sudbrink and union vice president John Clegg. Sudbrink has never participated in labor management meetings.

(B)

As a Psychologist III, the Plaintiff's job duties include providing mental health services to inmates in need of such services, providing crisis management for inmates, and screening inmates for work release. He is also required to:

a. "Ensure that all mental health services delivered are accurately documented, distributed, and maintained."

b. "Maintain safety and sanitation standards."

c. "Serve as the Mental Health Professional, coordinating and providing mental health services."

d. "Be an active participant of the Health and Safety Committee."

e. "[S]erve as a member of the Quality Assurance Committee, rendering recommendations."

f. "Schedule and coordinate Crisis Intervention Team training."

g. Keep track of inmates with mental health problems, monitor their care, and prepare the "call line" list of inmates to be seen by the psychiatrist.

h. Exercise management responsibilities over the care of suicidal inmates and ensure their safety.

i. File incident reports whenever an unusual incident occurs.

j. Report sanitation issues to management.

k. "Perform all additional duties as they relate to the Psychologist III position as directed which are reasonably within the scope of [Plaintiff's] job description."

In June of 2006, Warden Polk instructed Defendant Sudbrink to

deny the Plaintiff's request for two hours of call-back pay regarding two after-hours phone calls the Plaintiff placed to Jacksonville on May 28 and 29, 2006. The Plaintiff filed a grievance over the matter, which was resolved by paying the Plaintiff one hour of compensatory time.

Following the denial of callback pay, the Plaintiff asked Assistant Warden Rossi and Warden Polk if he was required to wear a pager. Defendants Rossi and Polk claim they believed that Plaintiff did not want to carry his pager if he was not required to do so. The Plaintiff says that he had no problem carrying a pager. The Defendants allege that Plaintiff was not and is not required to carry a pager. It is voluntary.

The Defendants allege that on June 8, 2006, Rossi told the Plaintiff he should turn in his pager and that he did not need to carry it. Rossi also informed the Plaintiff that he would be turning in his pager, and that "[h]e is no longer required to wear a pager." On June 8, 2006, Sudbrink sent out a memorandum providing that per Warden Polk, the Medical Director was to be called with all after hours mental health issues. The Defendants allege that Plaintiff did not at that time possess a pager and the facility did not have a means of ensuring that he could be reached at all times.

(C)

The Plaintiff served on a statewide hostage Negotiations Management Team ("NEMAT") from its inception sometime in the 1990s until October 1, 2006. The Plaintiff also served on a local hostage negotiations team at the Jacksonville facility. Service as a hostage negotiator is a voluntary undertaking, for which there is no compensation. At the time that Plaintiff's service with NEMAT ended, Deputy Director Ron Meek and Statewide Coordinator Jeffrey Hooker were in charge of the team. However, the Plaintiff's position at Jacksonville fell under the administrative chain of command of Deputy Director Richard Orr. On June 21, 2006, at the request of Mr. Hooker, Defendant Terry Polk sent Hooker a memorandum listing several reasons why Polk felt that Plaintiff should be removed from NEMAT. The Plaintiff disputes that the memorandum was sent at Hooker's request.

Defendant Polk felt that Plaintiff should be removed from NEMAT because: (1) he did not want to carry his pager; (2) the Plaintiff had complained about not having enough time to attend to his duties at Jacksonville; (3) being removed from NEMAT would give the Plaintiff enough time to focus on his duties at Jacksonville; (4) Terry Louden, Correctional Counselor II at Jacksonville, was also on NEMAT, and Defendant Polk felt one member from Jacksonville was sufficient. The Plaintiff notes that he never voluntarily surrendered his pager. The Plaintiff had in fact complained about insufficient time and resources to complete his job duties. However, the Plaintiff alleges that his time commitment to NEMAT was only four hours per quarter and Polk and Rossi made assignments which unreasonably increased his workload.

The Plaintiff received a memorandum dated September 27, 2006 from Deputy Director Rick Orr indicating that as of October 1, 2006, the Plaintiff's service as a hostage negotiator would end. The Plaintiff believes the decision was made because of a meeting he allegedly had with Assistant Warden Rossi three days prior to becoming a member of AFSCME, and because of a number of conflicts Plaintiff allegedly had with Rossi.

The Plaintiff states that it was Defendant Polk who requested that Plaintiff be removed from NEMAT. The Defendants assert that Meek and Hooker made the decision to remove the Plaintiff from NEMAT. The Plaintiff states that this was only to the extent their approval was necessary and that Polk was the driving force behind his removal from NEMAT. Because the Plaintiff's position at JCC fell under Defendant Orr's administrative chain of command, Orr drafted the September 27, 2006 memorandum terminating the Plaintiff from NEMAT.

The Defendants claim that the reasons for removal conveyed to Orr by Deputy Director Meek and Mr. Hooker concerned the Plaintiff's performance on the team. The Plaintiff disputes this assertion and emphasizes that he attended periodic drills, assisted in the training of other negotiators, and participated in the negotiations at a hostage crisis at the Dixon Correctional Center. Following the incident at Dixon which occurred in May of 2006, the Plaintiff received several complimentary notes, including one from Meek and Hooker.

No one asked Defendant Orr or Jeff Hooker to remove the Plaintiff from NEMAT because of the Plaintiff's union activities. Neither individual removed the Plaintiff from NEMAT because of his union activities, or for any other retaliatory purpose. The Plaintiff claims this assertion is immaterial because it was Warden Polk who requested that he be removed. The Plaintiff believes that Defendant Orr's memorandum of September 27, 2006 also removed him from the local hostage negotiation team at the JCC. The Plaintiff admitted that Polk expressed an interest in keeping him on the local hostage negotiation team. The Plaintiff did not want to be on the local hostage negotiation team after he was removed from NEMAT, and states that he would refuse to re-volunteer if asked to remain on the team.

(D)

From 1989 until early 2006, the Plaintiff's office was located in the Clinical Services area at the JCC. Clinical Services is housed in a single building between the facility's Segregation Unit and the Health Care Unit. The three areas are separated by brick firewalls. From at least 1989 until the present, inmate medical records have been located in the Health Care Unit. From 1989 until early 2006, the Plaintiff would see inmates for psychological evaluations in his office in Clinical Services without security personnel present. During this 16 to 17 year period, there was no security guard posted in Clinical Services. Throughout the period, the Plaintiff would pick up his patients' medical charts from the Health Care Unit and take them to his office in Clinical Services. To get from his office to the Health Care Unit, the Plaintiff would exit the Clinical Services area and travel approximately 40 feet to the entrance. The Plaintiff would have to travel an additional 30 feet from the Health Care Unit entrance to the records room to pick up charts.

In early 2006, at his request, the Plaintiff's office was relocated to the Health Care Unit. It remained there until February of 2007. Defendant Rossi informed the Plaintiff in December of 2006 that he would move back to his former office in Clinical Services. The Defendants allege Warden Polk testified that Plaintiff was moved back to his former office in order to free up space in the Health Care Unit for Dr. Lochard. However, the Plaintiff asserts that his office in the Health Care Unit remained vacant. Dr. Lochard is one of the medical doctors associated with the Wexford Corporation, a private vendor contracting with the state for medical services. The office space in the Health Care Unit was used by Dr. Lochard, though the Plaintiff notes he was only occasionally at the JCC.

After being moved back to his former office in Clinical Services, the Plaintiff stated that he did not want to see his patients in Clinical Services without security present. However, the Plaintiff could have continued to see patients in Clinical Services as he had from 1989 through 2006 if he so chose. The Defendants contend that in response to the Plaintiff's concerns about safety, Jacksonville management offered the Operations Building as an alternative place to see patients. The Plaintiff asserts that he was "directed" to see inmates in the operations conference room. Prior to receiving that directive, he had been seeing inmates in the Health Care Unit where a security officer was present. The Plaintiff testified that seeing patients in the Operations Building required him to pack up a portable office and added five to ten minutes of travel time, a situation which Plaintiff described as "less than ideal." During this time period, Defendant Polk sent the Plaintiff an email inquiring as to whether there was an office in the Health Care Unit in which the Plaintiff could see patients, to which the Plaintiff responded, "No . . . The only exception is on Wednesday from 4-6 pm when I have been instructed to use Amanda Tomhave's office in HCU after she goes home."

In June of 2007, the Plaintiff's office was again moved to the Health Care Unit. On April 4, 2008, the JCC's next warden, Jennifer Stoudt, moved the Plaintiff's office back to Clinical Services, where it has remained ever since. The Plaintiff believes Defendant Stoudt moved his office because of a phone call Plaintiff had with Defendant Becky Sudbrink on April 3, 2008, concerning the preparation of a "call line," or list of patients to be seen by the psychiatrist during a telepsychiatry clinic scheduled for that day. The Defendants allege Stoudt testified that she moved the Plaintiff's office back to Clinical Services because his position fell under Program Services, which is associated with Clinical Services and because the facility needed a space for telepsychiatry services in the Health Care Unit. However, the Plaintiff claims that available office space remained in the Healthcare Unit after Olendzki's relocation.

The Plaintiff claimed that he was banned from attending health care staff meetings after his position was transferred from the Health Care Unit staff to the Clinical Services Unit. Defendant Rossi testified that since Plaintiff fell under Programs, he was no longer considered part of the Health Care Unit staff. The Plaintiff notes that he previously attended healthcare staff meetings after he was relocated to the Clinical Services ...


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