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Policemen's Benevolent and Protective Association of Illinois v. City of Chicago

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

July 23, 2018

POLICEMEN'S BENEVOLENT AND PROTECTIVE ASSOCIATION OF ILLINOIS, UNIT 156-SERGEANTS and STEPHEN FRANKO, Plaintiffs,
v.
CITY OF CHICAGO, Defendant.

          MEMORANDUM OPINION AND ORDER

          JORGE L. ALONSO UNITED STATES DISTRICT JUDGE.

         Having been suspended from his job as a Police Sergeant without pay and had his hearing put off indefinitely, plaintiff Stephen Franko (“Sgt. Franko”) and his union (plaintiff Policemen's Benevolent and Protective Association of Illinois, Unit 156-Sergeants, the “Union”) filed a two-count complaint against defendant City of Chicago. In Count I, Sgt. Franko seeks relief under § 1983 for violation of his constitutional right to due process. In Count II, plaintiffs seek, in the alternative, to compel defendant to arbitrate the grievance the Union filed on Sgt. Franko's behalf. Defendant moves to dismiss. For the reasons set forth below, the Court grants in part and denies in part the motion to dismiss.

         I. BACKGROUND

         The Court takes as true the allegations in plaintiffs' complaint.[1]

         The Union and the defendant are parties to a collective bargaining agreement (“CBA”). That collective bargaining agreement includes a grievance procedure. (CBA at 13-15/ Docket 1-1 at 20-22). The CBA states, among other things:

A grievance is defined as a dispute or difference between the parties to this Agreement concerning the interpretation and/or application of this Agreement or its provisions. The separation of a Sergeant from service and suspensions in excess of thirty (30) days are cognizable only before the Police Board and shall not be cognizable under this procedure . . .
The grievance procedure provisions herein and the Police Board procedures are mutually exclusive, and no relief shall be available under both, provided that, if the Police Board reduces discipline of over thirty (30) days to thirty (30) days or under, the Sergeant may grieve the reduced discipline.

(CBA at 13-14/Docket 1-1 at 20-21). The collective bargaining agreement goes on to say:

A sergeant who receives a recommendation for suspension of eleven (11) days or more, not including a suspension accompanied by a recommendation for separation, may file a grievance challenging and seeking review of that recommendation.

(CBA at 20/Docket 1-1 at 27). The grievance procedure allows either party to seek arbitration. (CBA at 15/Docket at 1-1 at 22).

         On August 30, 2016, defendant's Superintendent of Police filed charges with the Police Board against plaintiff Sgt. Franko and four other officers. The charges recommended that Sgt. Franko be separated from service (i.e., discharged) for violating the Police Department's Rules of Conduct in the aftermath of a police-involved shooting in late 2014. Months earlier, the Police Officer involved in the shooting had been charged with a crime in connection with the shooting.

         Days later, on September 1, 2016, Sgt. Franko was served with a suspension notification. The notice stated that he would be suspended without pay for thirty days, beginning September 2, 2016. The notice also stated that “charges have been filed with the Chicago Police Board seeking the separation” of Sgt. Franko. Docket 1-2.

         The Police Board operates under Rules of Procedure. Those rules state, in relevant part:

[N]o later than seven (7) days after service of the notice of suspension a member of the Police Board or its Hearing Officer shall review the order of the Superintendent together with the reasons therefor and shall at that time determine whether suspension pending the disposition of charges is warranted.

         Police Board Rules of Procedure at IV.D./Docket 1-3 at p. 8. Plaintiffs allege that on September 7, 2016 and “[p]ursuant to Rule IV.D., ” a Hearing Officer for the Police Board concluded that “a continuing suspension beyond thirty (30) days without pay was warranted for Sergeant Franko ...


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