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Bello v. Village of Skokie

United States District Court, N.D. Illinois, Eastern Division

December 31, 2015

BALDO BELLO, Plaintiff,
v.
VILLAGE OF SKOKIE, ANTHONY, SCARPELLI, ALFREDO LOPEZ, MICHAEL KRUPNIK, and CHRISTA BELLOWE, Defendants

          For Baldo Bello, Plaintiff: James Graham Vanzant, Kurtz Law Offices, Hinsdale, IL; Dana L. Kurtz, Kurtz Law Offices, Ltd., Hinsdale, IL.

         For 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.

         MEMORANDUM OPINION AND ORDER

         MATTHEW F. KENNELLY, United States District Judge.

         Baldo 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 punitive damages.

         The 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' motions.

         Background

         The Court takes the following facts from the allegations in Bello's complaint and the parties' submissions on the summary judgment motion.

         Police 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.

         The CBA 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.

         The CBA 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.

         The 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.

         Bello, 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.

         For the 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.

         Things 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.

         Krupnik 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.

         On 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.

         Skokie 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 law.

         In 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 offended.

         In 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 complaining.

         In May, 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.

         During 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.

         No 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 so.

         Article X of Skokie Police Department General Order A-13.11, which pertains to internal ...


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