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Goldman v. Village of Oakwood Hills

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

June 19, 2018

Peter Goldman, Plaintiff,
Village of Oakwood Hills, et al., Defendants.



         For the reasons stated below, defendants' motion [14] to dismiss is granted. Counts I and II are dismissed without prejudice. Plaintiff is given until July 13, 2018 to file an amended complaint. If he fails to do so, the dismissal of Counts I and II will convert automatically to a dismissal with prejudice and judgment will enter on those counts. Because the dismissal with prejudice would then dispose of all the federal claims, the court would decline at that time to exercise supplemental jurisdiction over the state law claim (Count III) and the state law claim will be dismissed without prejudice at that time.


         Plaintiff, Peter Goldman, brings this action against defendants, Village of Oakwood Hills (“Village”) and Paul Smith, in his individual capacity and in his official capacity as the president of the Village, asserting claims under 42 U.S.C. § 1983 for a denial of due process (Count I) and retaliation for exercising his First Amendment free speech right (Count II). He also alleges an Illinois state law claim under 820 ILCS 305/4(h) for retaliatory discharge for filing a workers' compensation claim (Count III). Subject matter jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 & 1367(a). Defendants move [14] to dismiss counts I and II for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

         The following facts are taken from the complaint. Plaintiff began working for the Village as a police officer on February 19, 2001. He was appointed the Village's chief of police in May 2013. In an effort to improve the police department, plaintiff published an internet survey which requested the Village's police officers to respond to questions about the police department and its operations.[1] The survey responses were provided to Smith, the Village's president, without the names of the officers who responded. The responses were critical of Smith and his operation of the police department. On October 4, 2016, Smith responded to the survey to plaintiff. Smith was upset with the responses provided and demanded, under threat of discipline, that plaintiff address and eliminate what Smith perceived to be misconceptions. Smith accused plaintiff of being involved in inviting negative responses about Smith's handling of the police department and his failure to take disciplinary action against an employee.

         On October 14, 2016, plaintiff sustained a work-related injury as a result of a motor vehicle accident. Plaintiff sustained injuries to his head, arm, ribs, neck and back. The Village paid plaintiff temporary total disability benefits while he was off work and getting medical treatment for his injuries. Defendants were aware plaintiff had a work-related injury, that he filed a claim with the Illinois Workers' Compensation Commission, and that he continued to treat for his medical condition. Smith was upset that plaintiff had been injured and was not able to return to work.

         In January 2017, while plaintiff was still off work, Smith sent him several letters requesting he step down as police chief and indicating Smith had boxed up all plaintiff's personal items and requested plaintiff return all Village property, commission card, and badge. Smith later told plaintiff to disregard the termination notice and that he was still employed but unable to work because of medical conditions.

         On or about February 6, 2017, after removing plaintiff from the chief of police position, Smith requested plaintiff return police issued items in his possession despite the fact he was still employed by the police department. On or about February 8, 2017, Smith appointed a new police chief. Plaintiff was removed from the police department roster after appointment of the new chief. On July 7, 2017, without prior notice, the Village terminated plaintiff's police employment despite its knowledge he was still under treatment and unable to work due to his work-related injuries. He was terminated via letter from the Village's counsel, Lisa Waggoner. Smith was the decision-maker responsible for terminating plaintiff. Smith terminated plaintiff without notice or providing plaintiff an opportunity to respond to any alleged employment or disciplinary issues. The alleged basis for plaintiff's termination was because of “violations of several policies.” Plaintiff was never notified, questioned, or provided any due process regarding any alleged policy violations. The Village never conducted any type of investigation and did not give plaintiff an opportunity to contest any allegations of misconduct. On or about July 18, 2017, defendants terminated plaintiff's benefits under the Illinois Workers' Compensation Act.

         Plaintiff alleges in Count I his employment as a police officer was governed by the rules, regulations, and policies of the Village and that those policies require a due process procedure to show cause prior to termination. He alleges these procedures of the Village give him a property interest in his continued employment which was wrongfully taken away without due process.

         Plaintiff alleges in Count II that his publishing of the internet survey and his sustaining a work-related injury were protected activities under the First Amendment and speech on matters of public concern. He contends he was a victim of retaliation by defendants, in violation of his right to free speech, because of his involvement with the internet survey as well as because of his sustaining a work-related injury. Among the allegedly retaliatory acts were failure to conduct an investigation of the allegations against plaintiff, failing to afford him notice or a hearing prior to his termination, terminating him from his position as a police officer, restricting him from obtaining continuation of salary and benefits as a result of his disabling work-related injuries.

         Defendants seek dismissal of Count I arguing plaintiff was an at-will employee, did not have a property interest in his job with the Village and, therefore, had no right to due process prior to being terminated. Plaintiff alleges that Village policy required a showing of cause for termination in a due process hearing before plaintiff could be terminated and that this gave plaintiff a property interest in his continued employment with the Village.

         Section 2-1501 of the Village's code of ordinances provides: “All Police Department positions for Chief of Police, Supervisory ranks, patrol officers and civilian employees, whether full- or part-time employees, are at will positions.” Oakwood Hills, Ill., Code § 2-1501. Defendants argue that this police department-specific section making police department employment at-will controls over any ordinance dealing generally with Village employees and officers. Plaintiff maintains, despite this provision, that he had a property interest in his job because: 1) Section 2-108 and Section 2-1003 of the Village's code of ordinances establish that he could only be dismissed for cause; 2) his official commission card indicated his appointment as a police officer ran until “at least May 3, 2018" and 3) a police department policy dated September 29, 2003 established he could only be terminated for cause. Even if the court considers the ordinances and documents cited by plaintiff, none of them alter the at-will nature of plaintiff's employment as established by Section 2-1501.

         “Even when required by statute or ordinance, purely procedural rules of state and local law give rise to constitutionally protected interests only when the mandated procedure contains within it a substantive liberty or property interest. In other words, the federal Constitution does not enforce compliance with state procedural rules.” Manley v. Law, 889 F.3d 885, 893 (7th Cir. 2018) (citations omitted). “[A] government promise that an employee can be fired only for good cause creates a substantive right in secure employment, whether or not the government provides procedures to enforce that right. By contrast, a rule that merely provides procedures to be followed does not include a substantive right if the procedures protect nothing more than employment that can be terminated at will.” Id. (quotation marks and citations omitted).

         Section 2-108 provides that the “Village President may remove any appointed officer, whenever the Village President is of the opinion that the interests of the Village demand removal.” The ordinance provides that the Village President “shall report written reasons for the removal to the Board of Trustees at a meeting to be held not less than five (5) nor more than ten (10) days after the removal.” It further provides that every “appointed officer and employee of the Village, upon the termination of his term for any cause ...

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