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Foggey v. City of Chicago

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

January 13, 2020

Vincent Foggey, Plaintiff,
v.
City of Chicago, Defendant.

          MEMORANDUM OPINION AND ORDER

          MANISH S. SHAH UNITED STATES DISTRICT JUDGE

         At around 3:30 a.m. one morning, plaintiff Vincent Foggey, a black man and eight-year veteran of the Chicago Police Department, walked into a Walgreens to take what was supposed to be a fifteen-minute break. More than thirty minutes later, Foggey's partner Sanjin Hodzic (a white male officer on his third day on the job) radioed to request a check in. Foggey left the Walgreens and encountered Hodzic struggling to subdue a violent aggressor. The Chicago Police Board eventually suspended and terminated Foggey for failing to adequately assist Hodzic. Foggey says he was singled out for discriminatory treatment. The City's motion for summary judgment is granted because Foggey has presented no evidence from which a reasonable juror could conclude that the City retaliated against him for complaining about discrimination or that the reasons the City gave for suspending and terminating him were pretextual justifications for race-based or sex-based discrimination.

         I. Legal Standards

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party must show that, after “construing all facts, and drawing all reasonable inferences from those facts, in favor of the non-moving party, ” United States v. P.H. Glatfelter Co., 768 F.3d 662, 668 (7th Cir. 2014), a reasonable jury could not return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party is entitled to summary judgment when the “nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[A] scintilla of evidence in support of the nonmoving party's position will be insufficient to survive a summary judgment motion; there must be evidence on which the jury could reasonably find in favor of the nonmoving party.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010). The party opposing summary judgment has the responsibility to identify the evidence that would sufficiently raise a disputed issue for trial. Bunn v. Fed. Deposit Ins. Corp. for Valley Bank Illinois, 908 F.3d 290, 297 (7th Cir. 2018). Perfunctory arguments, undeveloped arguments, and arguments unsupported by pertinent authority are waived. Id.

         II. Facts

         Vincent Foggey, a black man, [140-2] 115:18-23, became a Chicago Police Department officer in 2006. [140] ¶ 8; [148] ¶ 8.[1] During the next eight years, he received nearly thirty achievement awards and, six months before the events in question, received a performance review that noted he was “exceeding expectations.” [155] ¶¶ 1, 2.

         At about 3:30 a.m. one morning, Foggey requested a fifteen-minute personal break to meet with a friend inside of a Walgreens pharmacy. [140] ¶ 12; [148] ¶ 12. His partner, Sanjin Hodzic, waited outside in the squad car. Id. More than fifteen minutes later, Hodzic used his radio to request that Foggey check-in. [140] ¶¶ 12, 13; [148] ¶¶ 12, 13. When Foggey responded, Hodzic said he needed him in the parking lot. [140-2] 63:17-65:18; [140-5] 81:9-83:14. Foggey could hear yelling in the background and considered it a priority to find out what was going on but did not radio Hodzic back. [140] ¶ 15; [148] ¶ 15. He says he walked out of the store. [140] ¶¶ 16, 17; [148] ¶ 17. But see [148-5] at 3 (the friend Foggey was visiting says he “jumped up and he ran” once the radio came on).

         Hodzic, a white man who had been a fully certified police officer for three days, radioed Foggey because he had just witnessed a fight break out in the parking lot. See [140] ¶¶ 14, 15, 17; [148] ¶ 14; [140-5] 119:15-23, 126:18-21; [140-3] at 59. As Foggey exited the Walgreens, he could see Hodzic and a man, William Brewer, engaged in a struggle on the far side of their squad car. [140] ¶¶ 14, 17, 18; [148] ¶ 14, 17, 18. Foggey saw Hodzic and Brewer engage in a conversation before Hodzic jerked Brewer towards the squad car and then tackled him to the ground. [140-2] 72:4-73:6. Throughout, Foggey continued walking toward Hodzic and Brewer at roughly the same pace. [140] ¶ 19; [148] ¶ 19.

         As Foggey approached, Hodzic and Brewer were on the ground. [140] ¶ 20; [148] ¶ 20. Brewer was face down with Hodzic on top of him. [140-2] 79:11-15. Foggey leaned down, grabbed Brewer, and told him to put his hands behind his back. [140-2] 79:16-80:23. Hodzic handcuffed Brewer, Brewer was searched, and a knife was found. [140] ¶ 22; [148] ¶ 22. Foggey used his radio (for the first time since leaving Walgreens) to tell the dispatcher Brewer was in custody and secured Brewer within the police car. Id.; [140-2] 82:18-83:3, 294:15-22.

         Hodzic did not tell Foggey what was happening outside of the Walgreens in either of the two radio transmissions that he made to Foggey that evening but his training indicated that he should have done so. [140-5] 83:16-84:1, 86:14-87:9. Hodzic also admitted that it was not “fully accurate” when he later told the person charged with investigating whether Foggey committed misconduct (then-Sergeant, now-Lieutenant Timothy Wolf, see [140] ¶ 32; [148] ¶ 32) that Foggey did not provide assistance until Hodzic had already placed Brewer in handcuffs because, before that, Foggey had also reached down and pulled on Brewer's shirt while Hodzic was on top of Brewer. [140-5] 274:10-276:23.

         Sergeant Elise Padilla, a Hispanic woman who arrived on scene shortly after Brewer was in custody, says that Foggey told her something to the effect of, “these young kids are always getting involved in something.” [140-6] 93:3-94:8; [140] ¶ 10; [148] ¶ 10. Foggey does not remember saying that. [140-2] 84:11-85:1.

         The next day, as part of his duties as station supervisor, Sergeant Joaquin Mendoza (a Hispanic male) viewed a video of the events in question in order to determine whether there was probable cause to arrest Brewer for aggravated battery of a police officer. [140-7] 73:16-74:22, 152:7-21; [140] ¶ 10; [148] ¶ 10. After viewing that video, he initiated a complaint against Foggey for dereliction of duty (failing to assist his partner with an active assailant). [140-7] 44:2-12, 46:15-17. Mendoza said that Foggey had something in his hand as he exited the Walgreens (because the video depicted Foggey's elbow outstretched in front of him), but Mendoza also admitted that he was not able to see Foggey's hand at any point during the video. [140-7] 153:3- 160:11. Mendoza was aware of other videos of that event (e.g., videos from security cameras inside the Walgreens) but he did not view those videos because they were not relevant to his investigation (i.e., the investigation into whether there was probable cause to believe that Brewer had committed aggravated battery). [140-7] 151:4-152:21. Instead, Mendoza believed the responsibility for obtaining and reviewing those videos would fall to whichever detective was charged with investigating his complaint against Foggey. Id. A different officer with the Bureau of Internal Affairs (Lieutenant Wolf) conducted the investigation into the complaint filed by Mendoza. [140] ¶ 32; [148] ¶ 32.

         Foggey says that his coworkers later told him that Mendoza, Padilla, and Sergeant Charles Gray played one of the videos of the incident in front of Foggey's coworkers. [140] ¶ 36; [148] ¶ 36. Foggey saw Sgt. Mendoza sitting at the front desk of the station with a “crowd of officers … huddled around him watching” a video of the events at Walgreens. [140-2] 109:2-111:1. Foggey could hear the audio of his radio transmissions with Hodzic. [140-2] 110:5-110:19.

         Mendoza did not intentionally display the video for other officers (other than his supervisor). See [140-7] 242:4-244:24; [140] ¶ 37; [148] ¶ [37].[2] Mendoza was watching the video at his front desk because his computer was one of the only computers capable of playing the video. [140-7] 243:6-12. Other officers may have come up to him while he was ...


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