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DeBacker v. City of Moline

United States District Court, C.D. Illinois, Rock Island Division

January 27, 2015

CITY OF MOLINE and JAY TITUS, individually, Defendants

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For Michael E. DeBacker, Plaintiff: Breanne M Schadt, LAW OFFICE OF H J DANE, Davenport, IA.

For City of Moline, Defendant: Martha L Shaff, LEAD ATTORNEY, BETTY NEUMAN & MCMAHON, LLC, Davenport, IA.

For Jay Titus, Defendant: Peter R Jennetten, LEAD ATTORNEY, QUINN JOHNSTON HENDERSON & PRETORIUS, Peoria, IL.

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James E. Shadid, Chief United States District Judge.

Now before the Court are Motions for Summary Judgment by Defendant Jay Titus and the City of Moline. For the reasons set forth below, The City's Motion for Summary Judgment [77] is GRANTED IN PART and DENIED IN PART, and the Motion for Summary Judgment by Defendant Titus [78] is GRANTED IN PART and DENIED IN PART.


The Court has jurisdiction over this matter pursuant to 28 U.S.C. § § 1331 as the claims asserted in the Complaint present federal questions under the Family Medical Leave Act of 1993 (" FMLA" ), 29 U.S.C. § 2601, and the Americans with Disabilities Act, 42 U.S.C. § § 12112(d) and 12203(a) (" ADA" ). The Court further has supplemental jurisdiction over Plaintiff's

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state law claims for intentional infliction of emotional distress, libel, slander, and tortious interference with a contract pursuant to 28 U.S.C. § 1367.


Plaintiff, Michael DeBacker (" DeBacker" ), began working for Defendant City of Moline (the " City" ) in April 1994. He is certified as a Traffic Crash Reconstructionist and a Master Firearms Instructor. In fact, DeBacker is a sharp shooter, has participated in numerous competitive shooting events, keeps ammunition and numerous weapons at his home, and typically has three firearms in his vehicle while not on duty. At the times relevant to this Complaint, he was a Traffic Investigator and Firearms Instructor.

In February 2011, a female co-worker filed a sexual harassment complaint against DeBacker regarding a comment that he made to her. This complaint caused him increased stress and anxiety. Defendant Titus became his commanding officer in April 2011, which caused additional stress by increasing the duties assigned and changing the way DeBacker and a co-employee performed their duties. In May 2011, DeBacker admits that he was having suicidal thoughts about using his duty gun to commit suicide, and although he discussed some symptoms and stress he was experiencing with his family physician and was placed on Zoloft, he did not specifically mention any suicidal thoughts. He concedes that his ideations eventually included committing suicide and simultaneously shooting Titus by placing a round of hardball ammunition in his duty gun and shooting it at a trajectory to pass through his head and also hit Titus.

On June 15, 2011, after an unpleasant meeting with Titus, DeBacker called his family physician to request an increase in his dosage of Zoloft. That evening, he told his wife, Julie, about the suicidal ideations he had relating to himself and Titus; however, he claimed that he would never act on those thoughts and was repulsed by them. He also mentioned the prior suicide of another officer, Mike Sottos, and stated that he could see how Sottos could do it. Julie works in the medical field and had training on identifying mental health issues, including symptoms of possible suicide, depression, and harmful ideation. The next morning, Julie became concerned because DeBacker was quiet, looked depressed, and told her " everything is going to be all right." She called a family friend, Mark Schumacher (" Schumacher" ) and another family friend, Fred Mincks (" Mincks" ), who was also DeBacker's co-worker/supervisor, to ask Mincks to pull DeBacker aside until Schumacher could get there to pick him up because she did not want him at work that day and wanted to take him to see a doctor. Mincks also received a call from Schumacher informing him that Julie had called him and was concerned that DeBacker may be intending to commit suicide and also kill Titus. Mincks relayed this information to Titus.

Chief Kim Hankins and other commanding officers were also informed of the situation. It is undisputed that Chief Hankins believed that DeBacker was not fit for duty and had mental health issues that needed to be worked out. It is further undisputed that Chief Hankins believed that there was a possibility of an imminent threat based on the information being relayed by DeBacker's wife, which indicated that she thought it was an " 8 out of 10" likelihood that DeBacker would follow through with his ideations. The Department deemed it necessary to take DeBacker for an evaluation of medical treatment related to his mental health condition, and he was placed on administrative leave.

DeBacker was taken for a psychiatric evaluation at the Robert Young Center.

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That evening, after it was determined that DeBacker had no delusional thoughts or suicidal/homicidal ideations and would be released, the City threatened to obtain a court order committing him if he did not stay voluntarily for inpatient treatment. As a result, DeBacker voluntarily admitted himself. Three days later, he was discharged from treatment but remained off work until a fit-for-duty examination could be performed. On June 24, 2011, his treating psychiatrist noted: " Major depressive disorder current in full remission, adjustment disorder with anxiety, improving, obsessive-compulsive personality disorder; " he found DeBacker's thought process negative for lethality or psychosis. This psychiatrist released DeBacker for return to work on July 21, 2011. Generally, when an officer is released to return to work by their treating physician, they are returned to their previous duties in a matter of a few days. DeBacker remained on FMLA leave until August 26, 2011.

Following an examination with the City's contracting provider on August 23, 2011, DeBacker was found to be fit-for-duty and was directed to return to work on September 19, 2011 as a booking officer. Upon his return, he was placed on several restrictions: (1) he was not to have contact with Titus; (2) he was not to possess a firearm; and (3) he was to avoid areas of the Department where firearms could be accessed. In assigning DeBacker's duties on his return, Chief Hankins took into consideration his stress and anxiety, as well as the safety concerns of other employees.

During this process, DeBacker's FOID card had been revoked by the Illinois State Police as a result of his in-patient status at a mental institution. After being cleared for a return to duty, DeBacker appealed the revocation and requested that his FOID card be reinstated. Titus contacted the Illinois State Police both by email and letter to protest the reinstatement of DeBacker's FOID card. It is undisputed that the Department did not direct Titus to make this contact. DeBacker asked the City to assist him in obtaining the reinstatement, but the City refused. The City did, however, provide copies of the police investigative reports pursuant to a subpoena from the State Police. Following his return to work, DeBacker requested to be reinstated to his former position with his firearm. Each of his requests were denied by the City based on conversations with human resources, legal, and the City Administrator.

In September 2011, Titus availed himself of the process available for Department personnel to lodge complaints against co-employees by filing a formal citizen's complaint seeking discipline against DeBacker relating to the June 16, 2011 incident. Chief Hankins denied Titus' citizen complaint and stated that no discipline would be taken against DeBacker for the incident. Titus appealed this denial, which then went to an arbitration hearing before the Board of Fire and Police Commissioners. On February 1, 2012, the Board affirmed the Department's denial of Titus' complaint.

In May 2012, DeBacker filed a complaint with the EEOC and a grievance with his union. Following an unsuccessful attempt to mediate the EEOC complaint, Chief Hankins contacted the State Police to ask about the necessity of DeBacker's FOID card and the impact, if any, on his ability to carry a firearm while on duty as a police officer. Although the FOID card statute contains an exception for police officers possessing a firearm while on duty in their official capacity that makes it unnecessary for a police officer on duty to have a FOID card, the State Police advised that an Illinois criminal statute prohibits anyone who has been a patient at a mental institution

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within the last five years from possessing a firearm. It is undisputed that the City was unaware of the implications of this criminal statute until July 2012.

Section 26-2321 of the Moline Code of Ordinances requires each member of the Department to be armed on duty with a firearm. On August 7, 2012, the City notified DeBacker that his employment was terminated in light of the conflict between the Illinois criminal statute and the Moline Code.

DeBacker brought this suit against the City and Titus, alleging violations of the Americans With Disabilities Act (" ADA" ), the Family Medical Leave Act (" FMLA" ), intentional infliction of emotional distress, defamation for both libel and slander, and tortious interference with a contractual relationship. The slander claim against Titus was previously dismissed, and both the City and Titus have now moved for summary judgment on the remaining claims. The Motions are fully briefed, and this Order follows.


A motion for summary judgment will be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the suit. Insolia v. Philip Morris, Inc., 216 F.3d 596, 598-99 (7th Cir. 2000). The moving party may meet its burden of showing an absence of material facts by demonstrating " that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show there is a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

On summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 588. Any disputed issues of fact are resolved against the moving party. GE v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp., 477 U.S. at 323. Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Id. at 324. Where a proposed statement of fact is supported by the record and not adequately rebutted, a court will accept that statement as true for purposes of summary judgment; an adequate rebuttal requires a citation to specific support in the record. Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). This Court must then determine whether there is a need for trial -- ...

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