United States District Court, N.D. Illinois, Eastern Division
Baldo Bello, Plaintiff: James Graham Vanzant, Kurtz Law
Offices, Hinsdale, IL; Dana L. Kurtz, Kurtz Law Offices,
Ltd., Hinsdale, IL.
Village Of Skokie, Anthony Scarpelli, in his official and
individual capacity, Alfredo Lopez, in his individual
capacity, Michael Krupnik, in his individual capacity,
Christa Ballowe, in her individual capacity, Albert Rigoni,
in his individual capacity, Defendants: Yvette Anayis
Heintzelman, LEAD ATTORNEY, Roxana M Crasovan, Clark Baird
Smith LLP, Rosemont, IL; Benjamin Edward Gehrt, Clark Baird
Smith LLP, Chicago, IL.
OPINION AND ORDER
F. KENNELLY, United States District Judge.
Bello, a police officer employed by the Village of Skokie and
a staff sergeant in the United States Marine Corps Reserve,
has sued Skokie; police chief Anthony Scarpelli; deputy chief
Alfredo Lopez; commander Michael Krupnik; Christa Ballowe,
the Village's personnel director; and Albert Rigoni, the
Village's manager and chief administrative officer, who
has since been dismissed. Bello asserts claims for
discrimination and retaliation under the Uniform Services
Employment and Reemployment Rights Act (USERRA), 38 U.S.C.
§ 4311 (counts 1 and 2); breach of the Illinois
Whistleblower Act (IWA), 740 ILCS 174/5 (count 3); and
violation of the Illinois Military Leave of Absence Act
(IMLOAA), 5 ILCS 325/1 (count 4). Bello seeks declaratory and
injunctive relief, as well as compensatory, liquidated, and
parties have completed discovery, and both parties have now
moved for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Defendants seek summary judgment on all four
counts, while Bello seeks summary judgment in his favor on
counts 1 (discrimination under USERRA) and 4 (violation of
IMLOAA). For the reasons stated below, the Court grants
summary judgment for defendants on Bello's IMLOAA claim
and for defendant Krupnik on Bello's USERRA
discrimination claim but otherwise denies the parties'
Court takes the following facts from the allegations in
Bello's complaint and the parties' submissions on the
summary judgment motion.
officers in Skokie do not typically work regular Monday to
Friday schedules with weekends off. Instead, they confer with
department supervisors each month to schedule their workdays
and their unpaid days off. Management ultimately has the
authority to set officers' schedules; pursuant to the
collective bargaining agreement (CBA) that governs the terms
of employment for Skokie police officers, the Village has the
" exclusive right . . . to make and implement decisions
with respect to the operation and management of its
operations in all respects. Such rights include but are not
limited to the following: . . . to schedule and assign work .
. . ." Pl.'s Ex. 5, dkt. no. 80-2, at 324.
provides that " an employee will normally have 9 regular
days off (RDO's [sic]) per calendar month."
Id. at 305. Each month, patrol officers in Skokie
submit request slips identifying their preferred days off for
the coming month. RDO requests are not automatically granted
but instead must first be reconciled with other officers'
requests and day-to-day staffing needs. Balancing
departmental needs with officer preferences, supervisors
(sergeants and commanders) create monthly duty schedules. The
department's official policy is that RDOs do not
accumulate or roll over to subsequent months if officers do
not use them.
also sets forth policies regarding official leaves of
absence. Officers may take up to eight days of paid sick
leave per year " for illness, injury, maternity,
doctor's appointments, or for serious illness or injury
in the employee's immediate family." Id. at
308. In the event of a death in the employee's immediate
family, " the employee may be granted up to three (3)
days leave of absence without loss of pay for the purpose of
attending the funeral," which may be extended two days
with the permission of the Police Chief and Village Manager.
Id. at 310. Employees who are required to report for
jury duty " shall be excused from work without loss of
pay for the period of time which he is required to report or
serve." Id. at 311. In some situations,
employees may be placed on paid emergency leave status.
Id. at 312. And, also pursuant to the CBA, "
[m]ilitary leave shall be in accordance with State and
Federal law, and additional provisions as may be set forth in
the Village's Personnel Manual from time to time."
Id. at 311.
Village's personnel manual provides that full-time
employees who are members of a reserve component of the
United States armed services or the Illinois National Guard
receive their regular compensation and continue to accrue
benefits during the leave they take to attend their annual
two-week training. During basic training, up to sixty days of
specialized training, and " other training or duty
required by the United States Armed Forces, including weekend
drills to the extent such drills conflict with an
employee's scheduled work duties, a full time employee
who is a member of a reserve component of the Armed Services
. . . will continue to receive from the Village wages that
are paid biweekly and constitute the difference between their
current base pay and the base pay received from the Military
including any basic family housing allowance."
Defs.' Ex. 9, dkt. no. 77-10, at 4.
a reservist in the United States Marine Corps since 2001,
joined the Skokie Police Department as a patrol officer in
January 2006. He was reassigned to the department's
Tactical Mission Team in January 2010, but he was removed
from the team and returned to patrol duties in January 2011
as a member of Watch III, the group of officers who work
their scheduled days from 3:00 pm to 11:00 pm. Since joining
the department, Bello has been permitted to attend annual
reserve training for two weeks each summer, and he was
deployed to Iraq on at least one occasion from late 2007 to
August 2008. He is also required to participate in training
with the Marine Corps two to four days each month, which the
Village has never prevented him from attending.
first four years of his employment, Bello always requested
RDOs for his two-to four-day weekend drills, and his
supervisors always ensured that he got those RDOs, even when
scheduling concerns required them to deny other officers'
requests for particular days off. In February 2010, however,
Bello began requesting military leave for his monthly drills
in addition to his nine requested RDOs each month. For over
two years, Bello requested and was granted nine RDOs in
addition to two to four days of military leave every month.
changed for Bello when Commander Michael Krupnik rotated onto
Watch III. Before his four-month rotation as watch commander
began in September 2012, Krupnik discussed scheduling with
Bello and became concerned that Bello's schedule request
was noncompliant with Village and department policy. Bello
told Krupnik that he understood the law to have changed in
2010 to require the department to approve his requests for
military leave and nine RDOs, and he said that other watch
commanders had been approving his requests since he began
submitting them in early 2010. Krupnik told Bello he would
look into the matter but that in the meantime, Bello's
request for nine RDOs plus military leave for his monthly
drill would be approved for the month of September.
spoke with other watch commanders about RDO scheduling and
consulted the personnel manual to see if its military leave
provision addressed proper scheduling of RDOs. The personnel
manual said nothing on the issue, so Krupnik turned to Skokie
Chief of Police Anthony Scarpelli and Village Personnel
Director Christa Ballowe for guidance. As police chief,
Scarpelli was the ultimate decision maker with regard to the
department's policies, practices, and procedures,
including disciplinary actions. As personnel director,
Ballowe was responsible for recommending and administering
the Village's employment policies and practices. After
Krupnik, Ballowe, and Scarpelli discussed the matter, Krupnik
scheduled a meeting with Bello to discuss the Village's
military leave and RDO policies.
September 12, 2012, Bello met with Krupnik, Ballowe, and
Alfredo Lopez, then the Deputy Chief of Police in charge of
departmental operations. Krupnik, Ballowe, and Lopez informed
Bello that they believed his requests for military leave in
addition to and separate from his RDOs violated Village
policy and that he should instead be requesting RDOs for the
days he knew he would be participating in military drills.
Bello disagreed, telling his superiors that he understood the
law to have changed and that it required the Village to grant
both his requested RDOs and his requests for military leave
every month. Eight days later, Bello submitted a memorandum
to Ballowe reiterating this point.
decision makers continued to investigate to ensure that the
Village was complying with state and federal law. Ballowe
contacted legal counsel to request assistance. Meanwhile,
Krupnik and Lopez contacted Employer Support of the Guard and
Reserve, an office of the U.S. Department of Defense whose
mission is to serve as a resource to promote understanding
and cooperation between reservists and their civilian
employers. Lopez shared what he learned from this call with
Scarpelli and Ballowe. Krupnik also spoke with legislative
liaisons about proper scheduling practices under Illinois
light of all of this information, the Village and its
authorized decision makers determined that USERRA and
Illinois law permitted their practice of requiring officers
to schedule RDOs rather than military leave for the days they
knew they would need to attend monthly weekend drills.
Throughout this process, Bello sent seven or eight e-mails
and notices to Ballowe. Eventually, Scarpelli told Bello that
Ballowe was offended by the tone of Bello's
communications and requested that Bello communicate directly
with him rather than continuing to communicate with Ballowe.
Bello testified in his deposition that it was perfectly
appropriate for Scarpelli to make this request if Ballowe was
April 2013, Officer Michael Howe requested military leave in
addition to nine RDOs for the month of May, but Lopez told
him that he needed to request RDOs for his military leave
days instead. Howe, who was not on the police force at the
time Bello raised the issue in September 2012, claims that he
did not complain about the Village's policy because he
had heard that Bello had been treated badly after
Bello again raised concerns about the Village's policy,
this time through a formal grievance. Scarpelli and Village
Manager Albert Rigoni provided written explanations for their
decision to deny Bello's grievance, which proceeded
through step four of the CBA's grievance procedure but
did not go to arbitration. (Bello understood his union to be
waiting to pursue arbitration until the conclusion of his
civil suit.) In June 2013, the Village began fully enforcing
its interpretation of its military leave RDO policy. Bello
alleges, and defendants admit, that from June 2013 on, the
Village always denied requests from reservists (including
Bello) seeking leave for their military drills in addition to
nine RDOs, instead directing them to schedule RDOs on the
days they knew they would be attending military drills.
daily roll call in late September 2013, Krupnik observed
Bello respond when his name was called by saying, "
kill." Krupnik had witnessed this before-Bello had been
doing this during roll call almost every day since joining
the Skokie police. Bello explained in his deposition and
materials on summary judgment that U.S. Marines often use
their own vernacular not used by civilians, " such as
'ink stick' instead of 'pen,'
'bulkhead' rather than 'wall,' or
'kill,' which is regularly used to express
motivation, readiness, or as a greeting, or in roll-call
situations to acknowledge their presence." Defs.'
Resp. to Pl.'s Stat. of Add'l Facts, dkt. no. 102,
¶ 7. In his deposition, Bello testified that in his
experience, Marines like himself are taught to respond "
kill" in roll call as early as their first day of boot
camp. Although Bello knew that some behavior that would be
appropriate with the Marines would not be appropriate with
the police department, he was under the impression that this
behavior was innocuous and that his colleagues found it
either motivating or funny. Other officers, including Officer
Mynor Chang (also a Marine), sometimes responded the same way
during roll call, and for the first seven years of his
employment, Bello never knew anyone to be bothered or
offended by his roll call response. This time, though,
Krupnik ordered Bello to cease responding " kill"
in roll call. Krupnik explained his order by telling Bello
that he found the response offensive. During this litigation,
however, Krupnik revealed that this was not true and that he
did not have any problem with Bello's behavior. In truth,
Krupnik now says, he had been approached by a union
representative who wanted to voice the opinions of other
officers, and he lied to Bello to protect their identities.
similar complaint was ever lodged against Chang or other
officers who said " kill" in roll call, and Krupnik
issued no similar order to any other officer. Krupnik did,
however, inform Timothy Gramins, the sergeant on duty, that
he had given Bello an order to desist from using the word
" kill" in roll call, and he instructed Gramins to
monitor Bello to ensure his compliance with the order. When
Bello said " kill" during roll call again three
days later, Krupnik was not there to hear it, but Gramins
was. Gramins and another officer met with Bello and
instructed him to submit a memorandum to Krupnik explaining
why he had disobeyed Krupnik's order. Bello told them
that it was a slip of the tongue but that he did not believe
it mattered because he was under the impression that only
Krupnik was offended. In the memorandum he delivered to
Krupnik, Bello again stated that his insubordination was an
accident. He also wrote:
I have been using the word " kill" in roll call as
a sign of readiness to and motivation to go out and do my job
with a sense of heightened awareness and sense of
responsibility to our citizens and my partners on the street
in an implication to " kill" any form of threat to
life or to kill the enabling of great bodily harm to anyone.
Putting sensibilities aside, we all as sworn officers of the
law carry firearms for a single purpose. To engage any form
of life threatening violence with even greater, trained and
responsible violence. The training department just sent me to
a training class for close quarters handgun fighting where
the instructors drove home the fact that we are professional
managers of violence. " We kill bad people" is what
the theme of the training was and there was a very clear
understanding that we as police officers might have to kill
someone every day we are on the street.
. . .
It is obvious this situation is going to lead me down a path
that I don't want to go, so I will stop using it, but
only because the consequence and the inconvenience of having
to be written up and disciplined are being presented to me as
deterrents. My mental readiness and my self-motivation, not
any one's feelings, are all that I care about when
strapping on my uniform and all my tools as they are what
will get me through a life or death incident in the event I
encounter one. Perhaps a reminder to some that this bottom
line still remains: wether [sic] you are a 5 ft nothing
female officer, a 6' 5" male officer weighing 300
lbs, a Sergeant, Commander or Deputy Chief...YOU, yes YOU may
very well have to " kill" someone in this line of
work....TODAY. People don't have to like it, they just
have to accept it and deal with it.
Defs.' Ex. 25, dkt. no. 77-26, at 10-11. Bello was asked
if he would like to redraft the memo, but he declined to do
X of Skokie Police Department General Order A-13.11, which
pertains to internal ...