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Wesley Scott v. Town of Cicero

June 6, 2012

WESLEY SCOTT, PLAINTIFF,
v.
TOWN OF CICERO, LARRY DOMINICK AND ANTHONY INIQUEZ, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Wesley Scott, who is African-American, filed suit against the Town of Cicero ("Cicero"), Larry Dominick and Anthony Iniquez (together, "the individual defendants"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as the Civil Rights Act of 1866, 42 U.S.C. § 1981. According to Scott, despite his decorated service as a police officer, the defendants recommended the termination of his employment based on an arrest for possession of marijuana-even though the case was dismissed, and even though non-African-American employees who "committed offenses much more egregious" were not treated in a similar fashion. Scott claims that Dominick and Iniquez made the recommendation public, which resulted in his public humiliation and deprived him of the respect he needed to perform his job, in turn causing his constructive discharge from the police department. The individual defendants and Cicero have now filed separate motions for summary judgment. For the reasons stated below, the court grants both motions.

I. BACKGROUND

The following facts are undisputed unless otherwise noted.*fn1 On January 27, 2008, Scott left home in his car. As he was driving toward an intersection, he came upon a stop sign. Chicago police officers stopped him, claiming that he did not stop his vehicle as required. Scott exited the vehicle at a gas station, and heard the police calling him over. While the details are not clear from the parties' statements of fact, somehow the police located a bag containing cannabis in Scott's vehicle. As the sole occupant of the vehicle, Scott was arrested and charged with possession of the drug.

At the time of the arrest, Scott was a commander with Cicero's police department. Cicero had hired him as a probationary police officer back in 1986, and he was the first African-American employed as an officer with Cicero. Scott had worked in every department, culminating in his promotion to commander. Thus, he was aware of various relevant Cicero policies that governed his behavior, as well as the drug policy in his collective bargaining agreement. Scott understood that if he were smoking marijuana, such behavior would be absolutely improper under Cicero's standards, that he was obliged to be forthright and honest, and that he was obliged to cooperate fully with any competent authority conducting a department personnel investigation.

Following his arrest, officers contacted Cicero's police department. Commander Boyle, who was working in the Internal Affairs Division, met with one of the officers to discuss the incident. Thereafter, Boyle prepared an internal complaint and a File Initiation Report. Anthony Iniquez, the Chief of Police, wanted Scott to resign immediately, but told Scott that if he took a drug test and passed he would be placed back on duty. Scott was ordered to submit to a urine drug test, and he was provided with an hour-long window of time on February 1, 2008 in which to do so.

The parties debate the results. Based upon selective quotation, Scott insists upon treating the results as if they were conclusively negative, but although the report states that the test was negative, it also includes a special note: "Please note that the specimen is dilute. Recommend observed collection." Dr. Khanna, the medical review officer who signed the report, testified that he observed Scott's urinary creatinine to be below 20 milligrams per deciliter and to have a specific gravity over 1.003, which was an atypical reading. Although Dr. Khanna did not draw any ultimate conclusion about Scott's result, he opined that a specimen could be dilute for one of three reasons: the specimen had been altered by the individual being tested, the individual had ingested an excessive amount of fluids in an attempt to dilute the specimen, or the individual had some underlying kidney problem that prevented him from being able to concentrate urine adequately. Thus, Dr. Khanna recommended that a new specimen be collected while Scott was under observation. For his part, Scott claimed not to be aware of any dilution of his urine sample.

On February 19, 2008, Scott was sent back to the same location after being ordered to take a hair follicle test. Scott knew, before taking the test, that the test was designed to detect the presence of drugs.*fn2 Scott's mug shot photograph establishes that he has a mustache at the time of his arrest, but the mustache was gone by the time of the hair follicle collection. Dr. Khanna testified that his assistant told Dr. Khanna that Scott had virtually no hair on his entire body, including his arms and legs.*fn3 In Dr. Khanna's eighteen years of practice, this was the only case he had observed where the individual being tested had virtually no body hair. The assistant attempted to do the best he could to collect as much hair as possible, but nonetheless Scott's test results came back as having "insufficient quantity." Dr. Khanna opined that one way someone could avoid detection of drugs in a hair follicle test would be to shave off all of their hair so that the clinic could not collect a valid specimen. Scott claimed that he suffered from a condition called "pseudofolliculitis barbae," which meant that the hair on his face curled into his skin; Scott also used to shave his body hair to compete in bodybuilding, but had stopped that type of shaving in 2003. He admitted that he does not shave all the hair on his body on a regular basis.

The criminal case against Scott was dismissed when Scott agreed to participate in a four-week drug-school program. On May 29, 2008, Larry Dominick, Cicero's President, wrote a letter to Scott indicating he was seeking Scott's termination even though Scott's charges had been dismissed, as Scott's conduct was "unbecoming of a Town of Cicero Police Commander."*fn4 Commander Boyle prepared a formal investigation report, and Iniquez filed disciplinary charges against Scott. Both Boyle and Iniquez also recommended Scott's termination. The parties began to litigate the disciplinary charges- Scott filed a motion to dismiss-but then Scott elected to resign instead of proceeding with a hearing before the Board of Fire & Police Commissioners. By doing so, Scott received all the benefits to which he was entitled, including vacations and sick leave. Scott testified that he retired without a hearing because he "had no faith in the process" and "wasn't going to gamble with the 22 years that [he] had worked" by putting his faith in people who "simply do whatever the Town asks."

Scott points to a number of individuals that he claims are similarly situated and received better treatment. Scott also admits that he has no knowledge or information that anyone admitted to treating him differently than any of those individuals because he was African-American.

II.LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, the court will grant summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In particular, the court will grant a motion for summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

At the summary judgment stage, "a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party." Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). "A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Id. at 628 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). Doubts about the existence of a material fact ...


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