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Gray v. Zaruba

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

October 25, 2019

DAVID GRAY, Plaintiff,


          SHEILA FINNEGAN, United States Magistrate Judge

         Plaintiff David Gray filed suit alleging that Defendant Sheriff of DuPage County, John E. Zaruba, fired him from his position as a probationary Deputy Sheriff due to his race (black) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I), and his rights under the Equal Protection Clause, with a remedy under 42 U.S.C. § 1983 (Count II).[1] Plaintiff also alleges that Defendant fired him based on the fact of an arrest in violation of the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/2-103 (Count III). On December 3, 2018, the day before the case was set to go to trial in front of the assigned district judge, the parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). After settlement negotiations failed, this Court granted the parties' request to file motions for summary judgment. Defendant's motion seeks summary judgment on all of Plaintiff's claims, while Plaintiff's motion seeks partial summary judgment on his IHRA claim. For reasons set forth here, Defendant's motion is granted as to Plaintiff's race discrimination claims and the Court declines to retain jurisdiction over the remaining IHRA claim.


         Since the Court is considering the merits only of Defendant's motion for summary judgment of the race discrimination claims, it “constru[es] all facts and “draw[s] all inferences in favor of [Plaintiff, ] against whom the motion under consideration was filed.” Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). The material facts in this case, however, are largely undisputed.

         A. Plaintiff's Probationary Status

         Plaintiff was hired as a DuPage County Sheriff's Office correctional deputy in 2011. (Doc. 69 ¶ 6; Doc. 72 ¶ 6). In early January 2015, he applied for a transfer to the Law Enforcement Bureau by submitting a letter and taking the required “power test” for physical fitness. (Doc. 72 ¶ 7; Doc. 56-3, at 6, Plaintiff Dep., at 13-14). After passing the test, Plaintiff became a probationary Deputy Sheriff. (Doc. 72 ¶ 7). As of his termination on January 20, 2015, Plaintiff was completing his second week of training in the police academy. (Doc. 56-2, at 6, Plaintiff Dep., at 16).

         During the probationary period of employment, a deputy sheriff could be discharged or demoted for any reason not prohibited by law. (Doc. 72 ¶¶ 32-33; Doc. 56-7, Letter of 1/20/2015) (quoting “section 6.1 of the Arbitrated Award between the DuPage County Sheriff, County of DuPage and MAP Chapter #126.”). Non-probationary employees, on the other hand, were covered under the bargaining unit and could not be terminated (or even suspended over a certain number of days) without a hearing before the Merit Commission or an Arbitrator. (Doc. 56-4, at 14-15, Sterenberg Dep., at 13-14; Doc. 56-5, at 8, 47, 29, Bibbiano Dep., at 25, 109, 180).[2]

         B. Plaintiff's Arrest for Domestic Battery

         The following information concerning Plaintiff's arrest for domestic battery on January 18, 2015 (2 days before his termination) is taken exclusively from arrest reports completed by the Oak Park Police Department.

         At approximately 1 a.m. on January 18, 2015, Oak Park Police Officer M. Schrock was waved down by a passing pedestrian who pointed to Plaintiff's truck stopped in a Jiffy Lube parking lot, and reported a male and female yelling at each other in a possible domestic dispute. (Doc. 64, Arrest Report, at 3). As Officer Schrock approached the truck, he saw it quickly leave the Jiffy Lube parking lot and travel northbound. The officer followed in his patrol car and stopped the truck some distance away. He once again approached the truck and heard a male voice yelling “Get out of the car!” The officer also saw that the passenger (later identified as Plaintiff's wife) was “bleeding from the top of the forehead, along with a large bump above her right eye and on the right side of her forehead.” Additionally, the officer observed that the passenger was “holding a tissue paper in her hand that she used to wipe the blood from her face.” (Id.). The officer took photos of the passenger's forehead that depict the bump, and these were included with the arrest report. (Doc. 56-3, at 13, Plaintiff's Dep., at 44).

         At the scene, Officer Schrock separately questioned both Plaintiff and his wife about what had happened. The wife said she had been involved in a verbal altercation with her husband, and while in the Jiffy Lube parking lot, the verbal altercation had “turned physical when [Plaintiff] pushed her head into the front passenger side window.” Officer Schrock saw “what appeared to be a print of [Plaintiff's wife's] forehead on the window.” Officer Schrock then spoke with Plaintiff who had identified himself as a DuPage County Sheriff. He said the couple had been “involved in a verbal altercation when his wife began kicking him from the front passenger seat.” Plaintiff said he then “pushed his wife's head against the window to stop her.” According to the report, Officer Schrock did not see any marks on Plaintiff. (Doc. 64, Arrest Report, at 3).

         The officer placed Plaintiff under arrest for domestic battery and transported him to the Oak Park police station. (Id.; Doc. 65, Police Report, at 1). Once at the Oak Park police station Plaintiff was questioned again and said the couple had been leaving a dance party and were in a verbal altercation when his wife kicked him as he was driving. He said he then stopped the truck in front of 215 S. Harlem where he “pushed his wife's head against the passenger's side window to stop her from kicking him.” The next line in the arrest report reads: “Arrestee Gray stated: ‘I may have been too heavy handed because I deal with inmates all the time.'” (Doc. 64, Arrest Report, at 3). Plaintiff was charged with domestic battery and held at the station until his later transfer to Cook County Jail. (Id.; Doc. 72 ¶ 14; Doc. 73 ¶ 7).

         C. Paid Administrative Leave

         Major Frank Bibbiano, an Internal Affairs Investigator responsible for investigating arrests and other matters that could lead to the discipline or discharge of a DuPage County Sheriff's Office employee, learned of Plaintiff's arrest on January 18th and went to the Oak Park police station to get the police reports. (Doc. 69 ¶ 9; Doc. 72 ¶ 47; Doc. 73 ¶ 22). Bibbiano spoke to the watch commander, read the reports, and examined the photos of Plaintiff's wife. Later that same day, Bibbiano called Peter Sterenberg, the Acting Law Enforcement Bureau Chief. (Doc. 69 ¶ 10; Doc. 73 ¶ 20; Doc. 72-6, at 2, 5). Upon learning of the domestic battery charge, Sterenberg directed Bibbiano to begin an investigation and place Plaintiff on paid administrative leave while they determined whether the charge had substance. (Doc. 69 ¶¶ 12, 14; Doc. 72 ¶¶ 46, 48, 50; Doc. 73 ¶¶ 21, 23, 35). Sheriff Zaruba agreed this was the appropriate action. (Doc. 69 ¶ 15). Sterenberg did not have any of the police reports related to the incident in his possession when he made this decision. (Id. ¶ 14; Doc. 72 ¶ 49; Doc. 73 ¶ 24; Doc. 68-3, at 22-23, Sterenberg Dep., at 21-22).

         As instructed, Bibbiano gave Plaintiff a document dated January 18, 2015, stating that at the direction of Acting Chief Sterenberg, he was immediately placed on paid administrative leave and his police powers were temporarily suspended. (Doc. 69 ¶ 16; Doc. 72 ¶¶ 13, 30; Doc. 73 ¶¶ 6, 11; Doc. 56-6, Letter of 1/18/2015).

         D. Plaintiff's Termination

         After receiving the Oak Park police reports from Bibbiano, Sterenberg read them. As noted, these included: the arresting officer's observation that Plaintiff's wife was bleeding from the forehead; the wife's statement that she was involved in a verbal altercation with Plaintiff when he pushed her head into the passenger side window; the officer's observation of a print of a forehead in that window; and Plaintiff's statements to the officer that during the altercation he pushed his wife's head against the window to stop her from kicking him, and he might have been “too heavy handed because I deal with inmates all the time.” (Doc. 73 ¶ 27). Acting Chief Sterenberg was involved in employment-related decisions and was authorized to make disciplinary decisions. (Id. ¶¶ 18, 19). It is undisputed that it was Sterenberg's opinion and belief after reviewing the police reports, and taking into account that Plaintiff was a probationary employee, that the incident rose to such a level that Plaintiff should be discharged. (Id. ¶ 28).

         Sterenberg did not review Plaintiff's disciplinary history before recommending discharge because of what was contained in the police reports, specifically, Plaintiff's statement that he may have been too heavy handed because he was a correctional officer. Sterenberg felt that based on that statement, Plaintiff would no longer be able to represent the Sheriff's Office in use of force settings. (Id. ¶ 30; Doc. 72 ¶ 55). In making this assessment, Sterenberg took the police reports “at face value.” (Doc. 69 ¶¶ 31, 33).

         Sterenberg met with Sheriff Zaruba and recommended that Plaintiff be discharged.[3] (Doc. 73 ¶¶ 29, 31). Sheriff Zaruba had never met Plaintiff, and had no knowledge of his racial or ethnic background. (Doc. 72 ¶¶ 35, 66). Sheriff Zaruba had not personally seen the police reports but relied on the information Sterenberg provided. (Id. ¶ 65). The Sheriff concurred with Sterenberg's recommendation because it was his understanding that the information contained in the reports from the Oak Park Police indicated that Plaintiff had committed a battery against his wife. (Id. ¶¶ 63, 64; Doc. 73 ¶¶ 34, 35). On January 20, 2015 (two days after the arrest), Sheriff Zaruba signed a letter terminating Plaintiff effective that day and noting:

Pursuant to section 6.1 of the Arbitrated Award between the DuPage County Sheriff, County of DuPage and MAP Chapter #126, “During the probationary period an employee who fails to demonstrate the ability and qualifications necessary for the satisfactory job performance or on the basis of any other reasons deemed sufficient by the employer, may be discharged or demoted for any reason not prohibited by law.”

(Doc. 56-7, Letter of 1/20/2015). Bibbiano gave Plaintiff the letter the same day. (Doc. 72 ¶¶ 31, 63; Doc. 73 ¶ 12).

         On January 26, 2019, the criminal charges against Plaintiff were dropped. (Doc. 69 ¶ 37). On January 27, 2019, Bibbiano gave his internal affairs report about the incident to Sterenberg. No. one in the Sheriff's Office reviewed that report before Plaintiff was fired. (Id. ¶ 38; Doc. 75 ¶ 13). As part of his investigation, Bibbiano's report reflects that he spoke with the arresting officer on January 18, 2019 about the property taken from Plaintiff and in possession of the Oak Park Police Department (e.g., his badge, gun, ID card, and wallet) but not the alleged domestic battery. (Doc. 69 ¶ 18; Doc. 72-6, at 4). Bibbiano did not speak to Plaintiff or his wife to get their version of the events. (Doc. 69 ¶¶ 17, 20-22).


         I. Standard of Review

         Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Portalatin v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 125 F.Supp.3d 810, 813 (N.D. Ill. 2015). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         II. Race Discrimination under Title VII and Section 1983 ...

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