Milwaukee Police Ass'n v. Flynn

213 F.Supp.3d 1113

MILWAUKEE POLICE ASSOCIATION itself and on behalf of its members, Daniel J. Vidmar, Christopher E. Manney, Rudolfo Gomez, Jr., Plaintiffs,

v.Edward FLYNN, Chief of Police for the City of Milwaukee, City of Milwaukee, Defendants.

Case No. 15–C–0809

United States District Court, E.D. Wisconsin.

Signed September 30, 2016

Jonathan Cermele, Brendan P. Matthews, Cermele & Associates SC, Milwaukee, WI, for Plaintiffs.

Stuart Mukamal, Jenny Yuan, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants.

DECISION AND ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 9)

C.N. CLEVERT, JR., U.S. DISTRICT JUDGE

The Milwaukee Police Association and former officers Daniel J. Vidmar, Christopher E. Manney, and Rudolfo Gomez, Jr. sue Chief of Police Edward Flynn and the City of Milwaukee under 42 U.S.C. § 1983, alleging deprivation of property without due process of law and unlawful withholding of pay and benefits. Defendants move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the ground that plaintiffs have failed to state a claim. For the reasons set forth below, the motion will be granted.

STANDARD OF REVIEW

Rule 12(c) permits a party to move for judgment after the complaint and answer have been filed. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend , 163 F.3d 449, 452 (7th Cir.1998) ; see Fed. R. Civ. P. 12(c). The factual allegations in the complaint are taken as true, with all reasonable inferences drawn in plaintiffs' favor. Pisciotta v. Old Nat'l Bancorp , 499 F.3d 629, 633 (7th Cir. 2007). However, facts set forth in the complaint that undermine the plaintiffs' claims are not ignored. N. Ind. Gun & Outdoor Shows, Inc. , 163 F.3d at 452.

The standard applied to a Rule 12(c) motion is the same as that applied to a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Id. The complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2) ; Pisciotta , 499 F.3d at 633. Factual allegations must be enough to rise above the speculative level, id. which means that sufficient facts are set forth to state a claim plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; St. John's United Church of Christ v. City of Chicago , 502 F.3d 616, 625 (7th Cir. 2007). The essence of a Rule 12(b)(6) motion is that even assuming all of the alleged facts are accurate, plaintiff has no legal claim. Payton v. Rush–Presbyterian–St. Luke's Med. Ctr. , 184 F.3d 623, 627 (7th Cir. 1999).

The pleadings referenced in Rule 12(c) include the complaint, the answer, and any written instruments attached as exhibits to those pleadings. N. Ind. Gun & Outdoor Shows, Inc. , 163 F.3d at 452–53. Further, the court may take judicial notice of facts that are not subject to reasonable dispute because they are "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Judicial notice "is an adjudicative device that substitutes the acceptance of a universal truth for the conventional method of introducing evidence." Gen. Elec. Capital Corp. v. Lease Resolution Corp ., 128 F.3d 1074, 1081 (7th Cir. 1997).

Here, the defendants attached to their brief in support of the motion an appendix containing documents from the Wisconsin Legislative Bureau. (See Doc. 10 app.) The documents contain legislative history of which the court takes judicial notice with due regard for plaintiffs' acknowledgment of the same. (Doc. 11 at 15.)

ALLEGED FACTS

Daniel J. Vidmar was employed as a police officer for the City of Milwaukee. (Doc. 1, ¶ 6.) On January 1, 2014, Chief Edward Flynn ordered that Vidmar be discharged from employment, and his pay and benefits were terminated by the City of Milwaukee immediately thereafter. (Doc. 1, ¶¶ 12–13.) Vidmar appealed, and the Board of Fire and Police Commissioners conducted a trial on May 12 and June 17, 2014. (Id. , ¶ 14.) On June 17, 2014, the Board concluded that discharge was appropriate. (Id. )

Christopher E. Manney was employed as a police officer for the City of Milwaukee. (Doc. 1, ¶ 7.) On October 15, 2014, Chief Flynn ordered that Manney be discharged from employment, and his pay and benefits were terminated by the City of Milwaukee immediately thereafter. (Doc. 1, ¶¶ 15–16.) Manney appealed, and the Board conducted a trial from March 19 through March 23, 2015. (Id. , ¶ 17.) On March 23, 2015, the Board concluded that discharge was appropriate. (Id. )

Rudolfo Gomez, Jr. was employed as a detective for the City of Milwaukee.¹ (Doc. 1, ¶ 8.) On December 3, 2013, Chief Flynn ordered that Gomez be discharged from employment, and his pay and benefits were terminated by the City of Milwaukee immediately thereafter. (Doc. 1, ¶¶ 18–19.) Gomez appealed, but his trial before the Board was adjourned pending resolution of criminal charges against him. (Doc. 5, ¶ 20.) Following the resolution of the criminal charges, Gomez's Board trial was conducted on July 22 through July 24, 2015. On July 24, 2015, the Board concluded that discharge was appropriate. (Id. )

DISCUSSION

Plaintiffs allege that the termination of their pay and benefits before a final decision by the Board deprived them of property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, as well as article I, sections 1 and 9 of the Wisconsin Constitution. (Doc. 1, ¶ 1.) In the complaint, plaintiffs cited § 62.50(11) and (18) as the source of their property right. (Id. ) However, they subsequently stated that they wrongly cited to § 62.50(18) and meant to cite § 62.50 generally as the source of their property right. (Doc. 11 at 11.)

In addition, plaintiffs allege a state-law wage claim for violation of Wis. Stat. § 109.03 by the defendants' failure to timely compensate them as required by state law. The plaintiffs assert that the pay and benefits that should have been paid to them under § 62.50 constitute a "wage" as defined in Wis. Stat. § 109.01(3) and that the failure to pay them was a "wage deficiency" under Wis. Stat. § 109.11. (Id. , ¶ 2.)

Plaintiffs' due process and wage claims depend on the existence of the same property right to unpaid wages and benefits between discharge by the chief and final decision by the Board. Regarding the due process claim, property interests "are not created by the Constitution, but rather are created and defined by existing rules or understandings that stem from an independent source such as state law." O'Gorman v. City of Chicago , 777 F.3d 885, 890 (7th Cir. 2015). Plaintiffs argue that Wis. Stat. § 62.50 gives them a right to that property. Similarly, plaintiffs assert that the wages that the defendants failed to pay in violation of state wage laws were due and owing to them under § 62.50.

Section 62.50 applies to police and fire departments of first class cities. Wis. Stat. § 62.50. First class cities are defined in Wis. Stat. § 62.05(1)(a) as those with population of 150,000 or larger. The parties do not dispute that Milwaukee is a first class city governed by the provisions of § 62.50.

"[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." See State ex rel. Kalal v. Circuit Court for Dane Cty. , 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. Interpretation begins with the statute's language. Id. And context and structure of the statute are important to meaning. Milw. Police Ass'n v. Flynn , 2011 WI App 112, ¶ 15, 335 Wis.2d 495, 801 N.W.2d 466. The court interprets statutory language " ‘in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.’ " Id. (quoting State ex rel. Kalal , 2004 WI 58, ¶ 46, 271 Wis.2d 633, 681 N.W.2d 110 ). Further, statutes should be read to avoid superfluity. State ex rel. Kalal , 2004 WI 58, ¶ 46, 271 Wis.2d 633, 681 N.W.2d 110. The language is read "to give reasonable effect to every word, in order to avoid surplusage." Id.

Plaintiffs cite no express provision that directs payment of wages or salary to those discharged by the chief but who have appealed and await the Board's decision. Instead, they argue that taken as a whole § 62.50 provides a system whereby the chief of police merely recommends discharge and only the Board issues a decision that terminate's an officer's pay. However, plaintiffs read Wis. Stat. § 62.50 incorrectly.

The pertinent statutory language is as follows. Subsection 62.50(11) provides that "[n]o member of the police force or fire department may be discharged or suspended for a term exceeding 30 days by the chief of either of the departments except for cause and after trial under this section." Subsection 62.50(13) then states:

The chief discharging or suspending for a period exceeding 5 days any member of the force shall give written notice of the discharge or suspension to the member and, at the same time that the notice is given, shall also give the member any exculpatory evidence in the chief's possession related to the discharge or suspension. The chief shall also immediately report the notice of the discharge or suspension to the secretary of the board of fire and police commissioners together with a complaint setting forth the reasons for the discharge or suspension and the name of the complainant if other than the chief. Within 10 days after the date of service of the notice of a discharge or suspension order the members so discharged or suspended may appeal from the order of discharge or suspension or discipline to the board of fire and police commissioners ....

The Board then sets the time and place of a trial. Wis. Stat. § 62.50(14).

Pursuant to subsection 62.50(17)(a), within three days after hearing...