Milwaukee Police Ass'n v. Bd. of Fire & Police Commissioners of The City of Milwaukee

787 F.Supp.2d 888

MILWAUKEE POLICE ASSOCIATION, Melissa Ramskugler and Justin Solsvig, Plaintiffs,

v.BOARD OF FIRE & POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Edward Flynn and the City of Milwaukee, Defendants.

Case No. 09–C–1192.

United States District Court, E.D. Wisconsin.

May 23, 2011.

Brendan P. Matthews, Jonathan Cermele, Cermele & Associates SC, Milwaukee, WI, for Plaintiffs.Marynell Regan, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants.

DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

Probationary police officer Melissa Ramskugler (Ms. Ramskugler or Officer Ramskugler) was terminated by the Milwaukee Police Department (MPD) Chief of Police during her probationary period. Ms. Ramskugler contends that her termination without a hearing deprived her of her property interest in her job without due process of law.

On cross-motions for summary judgment, Ms. Ramskugler moves the Court to issue a Writ of Certiorari directing that: (1) Officer Ramskugler be returned to the payroll forthwith; (2) Officer Ramskugler be provided with the pay and benefits withheld since being removed from the payroll; (3) Chief of Police Edward Flynn issue, file and serve a complaint with the Board of Fire & Police Commissioners of the City of Milwaukee (the Board) identifying the facts supporting his decision to discharge Officer Ramskugler; (4) the Board conduct a hearing that comports with due process, and determine whether there was just cause for Officer Ramskugler's discharge; and (5) Officer Ramskugler's pay and benefits continue until such time as the Board finally disposes of her appeal from discharge by providing that due process hearing.

For the reasons that follow, Ms. Ramskugler's motion is denied, the defendants' motion is granted, and this matter is dismissed in its entirety. ¹

BACKGROUND

When a person is appointed as a Recruit Police Officer at the MPD, s/he is appointed in a probationary status to the Training Academy for a 23–week period of intensive training. This period of training includes, but is not limited to, Academics, Physical Training, Defense and Arrest Tactics (DAAT) and Firearms Training. A recruit may be appointed from an eligible list for Police Officers or from the rank of Police Aides who have satisfactorily completed a Police Aide program. The Physical Training and the Defensive Arrest Tactics components of Recruit Training require that recruits be capable of participating in a physically rigorous course of activity.

DAAT training, which is mandated by the Wisconsin Department of Justice Law Enforcement Standards Board (LESB), constitutes a large portion of Recruit Training. While the LESB mandates a certain amount of training, the MPD Training Division supplements and requires more extensive training than that minimally required by the LESB, including 400 more hours of training at the Academy, and additional required Field Training. Upon entering the Academy, recruits are expected to complete mandated training Phases I, II and III in probationary status. Upon graduation from the Academy, there is a request made by the Department on behalf of the recruit to be certified by the LESB, which is typically done by the LESB on a quarterly basis.

After graduation, the probationary police officer continues in probationary status as an “Officer in Training” through mandated Field Training Phases IV and V, and in the title of “Probationary Officer” through mandated Field Training Phase VI. Neither graduation nor certification by the LESB means that the probationary officer is adequately or fully trained or qualified yet to be a regular police officer with the MPD. Becoming a regular police officer only happens upon the successful completion of all of the Field Training. Probationary police officers, whether a Recruit Officer, Officer–in–Training, or Probationary Officer, serve a total probationary period of Sixteen (16) months. Participation in the phases of training by probationary police officers is an essential pre-requisite to continued employment as a Police Officer, and successful completion of all of the phases is required to be appointed as a regular employee.

By labor contract, Fire and Commission Rule, and Police Department Procedure, a police officer in probationary classification is expected to complete 16 months of probation in actual active service and training before being classified as a regular employee. Pursuant to the labor contract, probationary police officers have no grievance rights regarding discipline or discharge while in the Academy or as a recruit, and have no grievance rights regarding matters of discharge during all phases of the required Field Training.

Ms. Ramskugler started as a probationary police recruit in the MPD Police Academy on October 8, 2007. On October 11, 2007, approximately 3 days into recruit training, she sustained a duty-related injury to her right knee. She was temporarily removed from the class and placed in another area of the Department where she performed clerical duties for approximately one month. On November 5, 2007, she required surgery to the injured area and was allowed to take leave for 2 1/2 months. She returned to the performance of clerical duties in a restricted capacity for a period of 3 months. She was medically cleared for duty on April 8, 2008, but remained temporarily assigned to clerical duties pending the next scheduled recruit class at the Academy. As of April 8, 2008, she had only had three days of training at the police academy and was not qualified to do any type of police work.

On June 8, 2008, Ms. Ramskugler was re-appointed to a second recruit class. From October 11, 2007 through June 7, 2008, she did not participate in actual active service as a probationary police officer. On July 17, 2008, the Chief, by his designee, wrote a letter to the Board requesting that Ms. Ramskugler's probationary time as an original acceptance appointee be extended through October 14, 2009 because she had participated in approximately 35 days of actual active service and training instead of the required 16 months. Chief Flynn advised the Board of Ramskugler's re-entry into the recruit class on June 8, 2008. Notice of the request for probation extension was submitted to Ramskugler and her union consistent with the requirements of the collective bargaining agreement. On July 24, 2008, the Board considered the request to extend Officer Ramskugler's probationary period and approved the extension until October 14, 2009.

In her second recruit class, Ms. Ramskugler re-injured the same knee and, while in a restricted capacity, remained assigned to the class until her graduation on November 14, 2008. Officer Ramskugler's name was submitted by the Department to the LESB for certification and approved by the State. Ms. Ramskugler completed the necessary physical training and DAAT training prior to her graduation from the MPD recruit academy. After graduation, she completed approximately 25 days of the required Phase IV Field Training. On December 22, 2008, she began a 34 day leave of absence pending a second surgical procedure on the re-injured knee. On January 27, 2009, she returned to work to perform clerical duties consistent with her restrictions but was unable to resume the required training. The Chief terminated Ms. Ramskugler effective June 11, 2009 pursuant to Milwaukee Police Department Rule 4, Section 2/335.00 ² and Fire and Police Commission Rule XI, Section 7.(a).³

The Chief terminated Ramskugler's probationary appointment because she was unable to proceed with required training at that time and this prevented her from satisfactorily completing probationary training and from performing the essential functions of the job. On June 15, 2009, Officer Ramskugler filed a notice with the Board requesting a due process review hearing. The Board denied her request, stating that “Ms. Ramskugler was terminated from probationary employment for non-disciplinary reasons. It is a personnel action that is not appealable to the Fire and Police Commission.”

The Chief's written statement was heard by the Board in open session on July 16, 2009. At that meeting, Ramskugler requested reinstatement. The Chief submitted a written recommendation regarding Ms. Ramskugler's request for reinstatement. Ramskugler's request for reappointment was heard by the Board on February 18, 2010. At the February 18, 2010 hearing, after hearing from Ms. Ramskugler and Chief Flynn, the reappointment request was denied by the Board.

ANALYSIS

Summary judgment should be granted if “the movant shows that 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 plain language of the rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate only if, on the record as a whole, a rational trier of fact could not find for the non-moving party. Rogers v. City of Chi., 320 F.3d 748, 752 (7th Cir.2003).

A procedural due process claim consists of the following elements: a cognizable property interest, a deprivation of that interest, and a denial of due process. Palka v. Shelton, 623 F.3d 447, 452 (7th Cir.2010). A property interest in continued employment can be created by an independent source such as state law securing certain benefits, or by a clearly implied promise of continued employment. Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir.2003). In the context of public employment, the plaintiff must establish a legitimate claim of entitlement to continued employment except for cause. Palka, 623 F.3d at 452 (citing Lee v....