Patrick v. City of Chicago

662 F.Supp.2d 1039

Jerry PATRICK, Plaintiff, v. CITY OF CHICAGO, a municipal, Jr. corporation, et al., Defendants.

Case No.: 06-CV-3780.

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

September 30, 2009.

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Annemarie Elizabeth Kill, Avery Camerlingo Kill, LLC, Chicago, IL., for Plaintiff.

Deja C. Nave, Joseph Francis Graham, Joseph Francis Graham, City of Chicago, Law Department Corporation Counsel, Chicago, IL., for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, JR., District Judge.

Plaintiff Jerry Patrick ("Patrick") was discharged from his employment with the City of Chicago ("City") following his arrest in 2004. The first two counts of his amended four-count complaint assert state law claims directed solely against the City: Count I is a "Petition for Writ of Certiorari" seeking reversal of the City of Chicago Personnel Board ("Personnel Board") order upholding Plaintiff's discharge and Count II requests a "Writ of Mandamus" ordering the City to comply with certain rules and to reinstate Plaintiff. The remaining two counts name, in addition to the City, Miguel d'Escoto ("d'Escoto"), William Marback ("Marback"), James Taggart ("Taggart"), and George Catezone ("Catezone") in both their individual and official capacities for their role in Plaintiff's termination:¹ Count III is a Fifth Amendment claim brought pursuant to 42 U.S.C. § 1983 and Count IV is another Section 1983 claim for invasion of privacy.²

Before the Court are Defendants' and Plaintiff's cross-motions for summary judgment on all counts of Plaintiff's amended complaint pursuant to Fed. R.Civ.P. 56. In this opinion, the Court addresses the federal claims in Counts III and IV on the merits. For the reasons set forth below, the Court grants Defendants' motion for summary judgment [107] and denies Plaintiff's cross-motion for summary judgment on those claims. In view of that disposition of the federal claims, Plaintiff's state law claims—Counts I and II of his amended complaint—are dismissed without prejudice pursuant to "usual practice" in the Seventh Circuit when "all federal claims have been dismissed prior to trial." Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.1999).

I. Facts

Patrick was appointed to the position of Cement Mixer with the City's Department of Streets and Sanitation ("CDSS") on June 28, 1984. Def. SOF ¶ 1. From January 1, 1993 until his discharge on March 31, 2005, Patrick was employed as a Cement Mixer with the City's Department of Transportation ("CDOT"). Id. As a Cement Mixer, Patrick was a member of Local No. 76 of the Cement Worker's Union/Laborer's International Union of North America ("Local No. 76") and the terms and conditions of his employment were governed by the provisions of the Collective Bargaining Agreement ("CBA") between Local No. 76 and the City. Id. ¶ 2. While off-duty on Sunday, May 16, 2004 Plaintiff was arrested for possession of a controlled substance, specifically crack cocaine, by Chicago Police Department ("CPD") officers, who notified the City's Inspector General's Office ("IGO") of Plaintiff's arrest. Id. ¶ 19.

The Interview

Plaintiff subsequently was interviewed on July 13, 2004 by Individual Defendants and IGO Investigators Marback and Taggart. Def. SOF ¶ 47.³ Marback advised Plaintiff of his "administrative rights," which Marback testified are given to City employees accused of misconduct—that is, if the IGO is "strictly investigating whether or not there were violations of the Personnel Rules of the City of Chicago." Id. ¶ 48. Despite the fact that criminal charges were pending, the Inspector General ("IG") for the City of Chicago at that time, Alexander Vroustouris ("Vroustouris"), decided that Plaintiff would be read "administrative rights" because the IGO was not going to seek a criminal prosecution of Plaintiff. Pl. SOF ¶ 115. Another IGO employee present at the interview, William Kirby, testified that there was a "criminal aspect" as well as an "administrative aspect" to Plaintiff's situation. Id. The union president representing Plaintiff at the interview requested that the IGO comply with Paragraph 4.3(H) of the CBA and give Plaintiff his criminal rights at the interview or cancel it. Id. ¶ 116. The interview went forward. Id.

Section 4.3(H) of the CBA between the City and Local No. 76, entitled "Conduct of Disciplinary Investigations," states:

(1) If the allegation under investigation indicates a recommendation for discipline is probable against the employee, said employee will be given the statutory administrative proceeding rights prior to the commencement of the interview. (2) If the allegation indicates that criminal prosecution may be probable against said employee, the provisions of this Section shall be inapplicable and said employee will be afforded his constitutional rights concerning self-incrimination prior to the commencement of the interview. An employee will not be read his/her administrative and Miranda rights at the same interview.

Def. SOF ¶ 75. IGO criminal investigations are procedurally managed with an eye to prosecuting the individual criminally. Id. ¶ 91. An administrative investigation by the IGO is undertaken and procedurally managed with the focus on whether disciplinary action—not criminal prosecution—is appropriate against a City employee. Id. ¶ 92. Vroustouris testified that a criminal investigation is not undertaken if an individual already has been arrested. Id. ¶ 91. Section 4.3(O)(1) of the CBA provides:

Any evidence or information including employee statements that is obtained in violation of the rights enumerated in this Section 4.3, shall be suppressed and shall not be used by the Employer for any disciplinary action against the employee, or in the case of promotions or transfers.

Id. ¶ 76.

Plaintiff agreed that Marback advised him of his "administrative rights" and that he responded "yes" when asked "Do you understand that if you refuse to answer any questions put to you, you'll be ordered by a superior officer to answer the questions. Do you understand that?" Def. SOF ¶ 54. Plaintiff also answered "yes" when asked: "Do you understand that if you persist in your refusal after the order has been given to you, you are advised that such a refusal constitutes a violation of the Personnel Rules of the City of Chicago, Rule XVIII, Section 1, paragraph 25, and may serve as a basis for which your discharge will be sought. Do you understand that?"; and "Do you understand that by law any admission or statement made by you during the course of this interview and the fruits thereof cannot be used against you in a subsequent criminal proceeding; do you understand that?" Id. ¶¶ 55-56. Marback testified that the IGO does not have the power to bring criminal charges, but it can grant "use immunity" from state prosecution for statements made during the course of an administrative interview. Id. ¶ 52.⁴ Although Marback testified that absent a court order or subpoena, it would be improper for the IGO to forward an administrative interview to the State's Attorneys Office, the Chicago Municipal Code ("CMC") does not require that formality if the files and reports are divulged to the U.S. Attorney, Illinois Attorney General, or Cook County State's Attorney. Id.; Pl. Resp. ¶ 52.

Before any city officials asked Plaintiff any questions, Plaintiff's supervisor, Defendant Catezone, entered the room and instructed Plaintiff to cooperate and answer all questions truthfully and completely and advised Plaintiff that his failure to do so may result in discipline. Def. SOF ¶ 50. Specifically, Catezone told Plaintiff, "As your superior, I'm ordering you to cooperate with the IGO of the City of Chicago and answer all questions put to you truthfully and correctly" and "Pursuant to the Personnel Rules of the City of Chicago, your failure to obey my order may serve as a basis for which your discharge would be sought." Id. ¶ 64. Immediately after making that statement, Catezone exited the interview room and returned to work because he was told he was not needed for anything further. Id. ¶ 100. Catezone did not know whether the questions asked during the interview would be specifically, directly, and narrowly related to Plaintiffs official job duties before he directed Plaintiff to answer. Pl. SOF ¶ 117.

Vroustouris left to Marback and Taggart's discretion what questions to ask during Plaintiff's interview. Pl. SOF ¶ 118. During the July 13, 2004 interview, Plaintiff answered questions relating to his date of birth, social security number, job title and duties and where he lived. Def. SOF ¶ 51. He denied "using illegal substances and smoking crack cocaine" and testified that he understood that it was "a violation of the Personnel Rules of the City of Chicago as well as the criminal laws of this state to purchase illegal substances." Id. ¶ 84. He answered "No," when asked the following questions: "Are you currently addicted to crack cocaine?"; "Have you ever been addicted to crack cocaine?"; and "Have you ever been addicted to any drugs?" Id. Marback asked Plaintiff if he was addicted to crack cocaine because he felt that it was relevant to determining whether Plaintiff was a danger to his coworkers and members of the public. Pl. SOF ¶ 126. Marback did not determine that Plaintiff was a danger, nor did he give Plaintiff a drug test. Id. Marback testified that when he asked Plaintiff if he had ever been addicted to cocaine he was referring only to Plaintiff's time as a City employee. Id. ¶ 127. Vroustouris acknowledged that only during employment with the City can addiction be a violation of the Personnel Rules. Id. Marback testified that when he asked Plaintiff if he had ever been addicted to any drugs, Marback was referring only to Plaintiff's time as a City employee and that the question was relevant to...