Gomez et al v. Garda CL Great Lakes, Inc. et al
Filing
176
ENTER MEMORANDUM OPINION AND ORDER; Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 12/29/2014:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION
GABRIEL
HEDBERG,
GOMEZ
and
ADAM
Case No.
13 C 1002
Plaintiffs,
Judge Harry D. Leinenweber
v.
GARDA CL GREAT LAKES, INC.,
VILLAGE
OF
BROADVIEW,
DETECTIVE DALE YURKOVICH, and
CURTIS MEIGHAN,
Defendants.
MEMORANDUM OPINION AND ORDER
Before
the
Court
are
Defendants’
Judgment [ECF Nos. 137 and 142].
Motions
for
Summary
For the reasons stated herein,
the Motions are granted.
I.
BACKGROUND
Except where noted, the following facts are undisputed, and
where there is dispute, the facts are construed in the light most
favorable to Plaintiffs as the non-moving parties. Moreover, the
Court has considered the parties’ objections to certain facts and
includes in this background only those facts that are supported,
relevant, and admissible.
Plaintiffs
Gabriel
Gomez
(“Gomez”)
and
Adam
Hedberg
(“Hedberg”) (collectively, the “Plaintiffs”) used to work for
Defendant
Garda
CL
Great
Lakes,
Inc.
(“Garda”),
which
is
a
private security company that provides armored transportation and
delivery
of
money.
Plaintiffs
worked
as
armored
vehicle
operators tasked in part with transporting “e-cash bags,” which
are sealed bags that contain money to refill ATMs.
An e-cash bag
usually contains $40,000.00 separated into smaller plastic bags.
On
December
19,
2011,
Plaintiffs
reported
for
work
and
checked out the required bags of money for their delivery route.
One of those bags was an orange e-cash bag sealed with a green
label.
By the end of their route, Plaintiffs did not end up
delivering the orange e-cash bag and checked it back in at the
end of the day.
On December 20, Plaintiffs again checked out the
orange bag as they began their route.
The orange bag was not
delivered, but when Plaintiffs checked the bag back in, it was
missing $10,000.00 and had a red seal instead of the original
green seal.
According to Garda, sometime during Plaintiffs’
deliveries, the seal was broken, $10,000.00 was taken, and the
bag was resealed.
Plaintiffs, however, claim that someone took
the money between their shifts on December 19 and 20 and that
when they checked out the bag at the start of their shift on
December 20, the money was already taken and the bag already had
a red seal.
Either way, the parties agree that the bag was
missing $10,000.00.
It
was
not
until
December
23
that
$10,000.00 was missing from the orange bag.
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Garda
discovered
Soon thereafter,
Garda’s
head
(“Centrachio”),
of
corporate
started
Plaintiffs
cooperated
submitting
to
an
interview
internal
with
polygraph
them.
security,
After
Daniel
investigation.
Centrachio’s
tests
and
initially
Centrachio
investigation
allowing
being
Both
by
Centrachio
placed
on
to
“stand-by
status” sometime during the investigation, Plaintiffs returned to
work on January 4, 2012.
About a month after Plaintiffs returned to work, Centrachio
contacted Defendant Dave Yurkovich (“Yurkovich”), a detective in
Defendant Village of Broadview’s police department, to report the
alleged theft of $10,000.00.
truth
of
parties
some
agree
of
that
Although Plaintiffs dispute the
Centrachio’s
Centrachio
statements
relayed
to
the
Yurkovich,
above
the
facts
to
Yurkovich in addition to some other information, such as more
details about the orange e-cash bag.
He told Yurkovich that the
orange bag contained within it two date-coded plastic bags that
each held a $20,000.00 brick of money, and he also stated that
only
Plaintiffs
would
have
had
access
to
the
orange
bag
on
December 19 and 20.
Based
criminal
on
Centrachio’s
investigation
and
information,
contacted
Yurkovich
started
Plaintiffs.
a
Yurkovich
called Plaintiff Gomez on February 28, 2012, and asked him to go
to
the
police
statement.
station
to
provide
fingerprints
and
give
a
Gomez said that he wanted to speak with his attorney
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before he went to the police station.
On that same day, after
speaking with his attorney, Gomez told Yurkovich that he would
not give his fingerprints or a statement, asserting his Fifth
Amendment privilege against self-incrimination.
left
messages
for
Plaintiff
Hedberg,
who
Yurkovich also
eventually
returned
Yurkovich’s calls on March 3 and stated he too was asserting the
Fifth Amendment.
During his investigation, Yurkovich contacted Centrachio and
told him that neither Plaintiff would provide a statement or
fingerprints.
Centrachio
responded
that
Garda
had
already
handled the matter internally by firing Gomez and further stated
that
Garda
was
going
to
fire
Hedberg.
The
parties
dispute
precisely when Plaintiffs were fired, but because, as discussed
below, Defendants are entitled to summary judgment either way,
the Court will presume that Plaintiffs are correct that Gomez and
Hedberg
were
fired
on
February
29,
2012
and
March
5,
2012,
respectively.
After
Plaintiffs’
terminations,
Yurkovich
continued
his
investigation by obtaining their fingerprint cards from Garda and
submitting those cards, along with the plastic bags that were
inside
the
orange
(“ISP”) Crime Lab.
e-cash
bag,
to
the
Illinois
State
Police
An ISP lab report dated March 19, 2014,
stated that a “suitable latent [fingerprint] impression” on one
of
the
internal
plastic
bags
“was
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made
by
the
person
whose
fingerprints appear on the fingerprint card marked . . . Gomez.”
[Opp. to Garda’s Mot. for Sum. Judgment (“Opp. Br.”), Ex. 28, ECF
No.
140-3].
Without
having
any
statement
from
Plaintiffs,
however, Yurkovich did not seek felony charges and closed his
investigation in April 2014.
Plaintiffs’ Third Amended Complaint contains four counts.
Count
I
alleges
that
Yurkovich
and
Defendant
Curtis
Meighan
(“Meighan”), Plaintiffs’ supervisor at Garda, violated 42 U.S.C.
§ 1983 by retaliating against Plaintiffs after they asserted
their Fifth Amendment privilege.
and
Meighan
conspired
to
Count II alleges that Yurkovich
deprive
Plaintiffs
constitutional rights in violation of § 1983.
indemnification
employer.
from
the
Village
of
of
their
Count III seeks
Broadview
as
Yurkovich’s
Finally, Count IV contains a common law retaliatory
discharge claim against Garda and Meighan.
II.
Summary
judgment
is
LEGAL STANDARD
appropriate
when
the
moving
party
satisfies its burden and “shows that there is no genuine dispute
as to any material fact and [the party] is entitled to judgment
as
a
matter
of
law.”
FED. R. CIV. P.
56(a).
A
dispute
is
“genuine” if the evidence would permit a reasonable jury to find
for the non-moving party, and a fact is “material” if it might
affect the outcome of the suit.
477 U.S. 242, 248 (1986).
Anderson v. Liberty Lobby, Inc.,
If the moving party satisfies its
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burden, the non-moving party must present evidence sufficient to
demonstrate that a genuine factual dispute exists. See, Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
In doing so, the
non-moving party “must do more than show that there is some
metaphysical doubt as to the material facts.” Sarver v. Experian
Info. Solutions, 390 F.3d 969, 970 (7th Cir. 2004).
Rather, the
non-moving party must demonstrate “through specific evidence that
a triable issue of fact remains on issues for which [that party]
bears the burden of proof at trial.” Knight v. Wiseman, 590 F.3d
458, 463-64 (7th Cir. 2009).
III.
ANALYSIS
Counts I and II, and by extension III, are premised on
§ 1983 liability and are against Meighan and Yurkovich.
Meighan,
however, is not a state actor, which is a pre-requisite for §
1983 liability claim.
Brokaw v. Mercer Cnty., 235 F.3d 1000,
1016 (7th Cir. 2000).
Moreover, Count I alleges that Yurkovich
retaliated against Plaintiffs by terminating them, despite the
undisputed
Plaintiffs.
fact
that
Yurkovich
could
not
and
did
not
fire
Thus, Plaintiffs first three claims would seemingly
fail as to each independent Defendant.
But a private citizen can be liable personally under § 1983
if that citizen conspired with a state actor in the alleged
constitutional deprivation.
Id.
conspiracy,
be
Yurkovich
can
And, provided there is such a
held
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liable
for
Plaintiffs’
terminations because “‘the overt acts of one conspirator are
attributable to all co-conspirators.’”
F.3d 1415, 1425 (7th Cir. 1995).
United States v. Soto, 48
Thus, Plaintiffs’ only hope of
succeeding on Counts I, II, or III necessarily depends on the
Court
first
finding
that
Plaintiffs
have
established
a
conspiracy, or at least presented sufficient evidence to warrant
a trial on the conspiracy issue.
Therefore, the Court will first
analyze the conspiracy issues in Counts I, II, and III and then
the common law retaliatory discharge claim in Count IV.
A.
Plaintiffs’ Conspiracy Claims
The parties agree that Meighan and Yurkovich never spoke to
each
other
directly,
yet
Plaintiffs
claim
that
Meighan
and
Yurkovich were involved in a conspiracy to deprive Plaintiffs of
their Fifth Amendment privilege.
conspiracy
was
achieved
through
According to Plaintiffs, the
the
use
of
Centrachio
as
an
“intermediary” who spoke with both Meighan and Yurkovich and
relayed to each of them information obtained from the other.
“[A] private citizen cannot ordinarily be held liable under
Section 1983 because that statute requires action under color of
state law.”
Brokaw, 235 F.3d at 1016.
But, “if a private
citizen conspires with a state actor, then the private citizen is
subject to Section 1983 liability.”
Id.
“To establish Section
1983 liability through a conspiracy theory, a plaintiff must
demonstrate that:
(1) a state official and private individual(s)
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reached
an
understanding
to
deprive
the
plaintiff
of
his
constitutional rights, and (2) those individual(s) were willful
participants in joint activity with the State or its agents.”
Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998).
Although
Yurkovich
there
agreed
to
is
no
direct
retaliate
evidence
against
that
Meighan
Plaintiffs,
evidence can establish the existence of a conspiracy.
and
indirect
“[I]f the
agreement is not overt, the alleged acts must be sufficient to
raise
the
inference
of
mutual
understanding
(i.e.,
the
acts
performed by the members of a conspiracy are unlikely to have
been undertaken without an agreement).”
Amundsen v. Chi. Park
Dist., 218 F.3d 712, 718 (7th Cir. 2000) (internal quotation
marks omitted).
Plaintiffs’
allegations
of
conspiracy
may
have
been
sufficient to survive a motion to dismiss, but at the summary
judgment stage they have failed to establish enough facts to
substantiate
their
claim.
combination of two facts:
Their
argument
rests
on
the
(1) Centrachio and Yurkovich spoke on
the phone during their respective investigations, and (2) each
took actions “within minutes of speaking with one another.” [Opp.
Br.
at
10].
These
two
facts,
according
to
Plaintiffs,
are
sufficient to allow a reasonable jury to infer that a “meeting of
the
minds”
occurred
whereby
Yurkovich
deprive Plaintiffs of their rights.
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and
Meighan
agreed
The Court disagrees.
to
Plaintiffs
plaintiff
who
rely
was
primarily
on
involuntarily
Pantaleo,
injected
becoming agitated at a hospital.
which
with
a
involved
drug
a
after
Pantaleo v. Hayes, No. 08 C
6419, 2013 WL 5311450, at *2–4 (N.D. Ill. Sept. 20, 2013).
In
that case, the plaintiff’s family duped him into going to a
hospital for treatment of some prior erratic behavior, and the
morning
after
his
overnight
stay,
barricaded himself in his room.
Id.
he
became
agitated
and
Hospital staff called the
police, who arrived and spoke directly with the staff regarding
the situation.
Id. at *2–3.
The staff indicated that they had
already decided to give the plaintiff a psychotropic drug against
his will and that the police were there so they could “use their
powers”
to
help
involuntarily.
the
hospital
Id. at *3.
administer
the
medicine
Following their conversation, the
hospital staff and police entered the plaintiff’s room.
*4.
Id. at
The plaintiff was uncooperative, leading one of the police
officers to tase him.
Id.
agreed to take the drug.
The plaintiff then calmed down and
Id.
The plaintiff’s mental health
later stabilized and he sued the hospital and its staff, and the
Village of
incident.
The
Hinsdale
and
its
police
officers
involved
in
the
which
was
Id. at *1, 4.
plaintiff
brought
several
excessive use of force under § 1983.
claims,
one
Id. at *10.
of
The plaintiff
sought to hold both the officers and the hospital staff liable
- 9 -
based on an alleged conspiracy.
Id.
The court found that the
evidence was sufficient to “create a question of fact as to
whether
defendants
administering
joined
psychotropic
together
with
medication
to
a
common
of
plaintiff]
[the
goal
in
violation of his constitutional right to refuse such medication.”
Id.
The court especially focused on the direct conversation
between the officers and the hospital staff, the contents of
which
were
known
and
showed
that
the
officers
were
asked
specifically to use their authority to help the staff administer
drugs involuntarily.
Id.
Plaintiffs argue that the facts in the present case are
“even stronger” than Pantaleo in showing a meeting of the minds
between Yurkovich and Meighan.
Not so.
Unlike the private
actors in Pantaleo who asked the officers specifically to use
their state
authority
to
help
them
give
the
plaintiff
drugs
against his will, here there is no evidence that either Meighan
or Centrachio asked Yurkovich to use his authority to deprive
Plaintiffs of any rights.
This was the central factor that led
the Pantaleo court to deny summary judgment; thus, Plaintiffs’
reliance on Pantaleo is misplaced.
Plaintiffs insist, however, that the timing of the phone
calls in relation to their termination is enough to allow a jury
to infer that a meeting of the minds took place.
The evidence
only establishes, at most, that Centrachio and Yurkovich kept
- 10 -
each other informed of what was happening in their respective
investigations.
inappropriate
As far as the Court is aware, there is nothing
about
a
detective
keeping
a
reporting
party
informed about the status of an investigation or vice versa, and
Plaintiffs have not pointed to any authority showing this type of
communication to be inappropriate.
Moreover, the existence of
phone calls between two alleged co-conspirators is not enough to
establish a conspiracy.
Goetzke v. Ferro Corp., 280 F.3d 766,
777–78 (7th Cir. 2002).
In order to hold private actors liable
under § 1983, Plaintiffs must produce evidence of a conspiracy
that rises above mere speculation.
Id. (finding that evidence of
numerous phone calls between two defendants “merely proves that
[they] remained in contact” and that, “[t]o assert that the calls
are evidence of a conspiracy is simply speculation”); see also,
Williams v. Seniff, 342 F.3d 774, 786 (7th Cir. 2003).
Plaintiffs have produced no evidence that Yurkovich agreed
with either Meighan or Centrachio to threaten Plaintiffs with
termination
if
they
did
not
give
up
their
Fifth
Amendment
privilege, nor have they produced evidence that Centrachio or
Meighan
agreed
with
Yurkovich
providing a statement.
to
fire
Plaintiffs
for
not
The most that Plaintiffs can prove is
that Yurkovich knew that Garda planned on firing Plaintiffs and
that Centrachio knew that Plaintiffs were asserting the Fifth
Amendment.
Once
again,
this
only
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shows
that
Yurkovich
and
Centrachio
were
in
investigations.
contact
with
one
another
about
their
A jury would have to engage in a healthy amount
of speculation to find that Yurkovich and Meighan had a “meeting
of
the
minds”
by
which
they
conspired
to
retaliate
against
Plaintiffs for asserting their Fifth Amendment privilege.
Plaintiffs
have
failed
to
establish
a
conspiracy
Thus,
and,
as
explained above, Counts I, II, and III cannot survive absent a
conspiracy.
Therefore,
Defendants
are
entitled
to
summary
judgment on those counts.
B.
Plaintiffs’ Common-law Retaliatory Discharge Claim
Plaintiffs
impermissible
also
argue
purpose
that
Meighan
under
Illinois’
law.
fired
To
them
for
succeed
an
on a
retaliatory-discharge claim, Plaintiffs must prove that (1) they
were discharged, (2) in retaliation for their activities, and (3)
that the discharge violated a clear mandate of public policy.
Bourbon v. Kmart Corp., 223 F.3d 469, 472 (7th Cir. 2007).
There
is “no precise definition of the term” public policy, but the
Illinois Supreme Court has explained that it “concerns what is
right
and
just
collectively.”
and
what
affects
the
citizens
of
the
State
Palmateer v. Int’l Harvester Co., 421 N.E.2d 876,
878 (Ill. 1981).
personal” matters.
Public policies are different from “purely
Id.
Thus, the tort applies in situations
where an employee is fired for refusing to violate a statute and
not where a worker is fired over a disputed company policy.
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Id.
at 879 (citing cases).
The tort is narrow, however, and the
Illinois Supreme Court “has deflected many attempts to expand
this tort and has maintained retaliatory discharge as a limited .
. . exception to the general rule of at-will discharges.”
Paz v.
Commonwealth Edison, 732 N.E.2d 696, 701 (Ill. App. Ct. 2000).
The parties agree that Plaintiffs were fired, though the
exact date of the termination is in dispute.
And, Plaintiffs
have at least established a genuine dispute over whether they
were
terminated
investigation.
for
their
activities
relating
to
Yurkovich’s
The only element at issue, then, is whether the
termination violated Illinois public policy.
Had Plaintiffs come
forward with enough evidence to establish a conspiracy, their
termination
might
have
been
in
violation
of
Illinois
public
policy, because in such a case, the termination itself would
violate the Fifth Amendment and its counterpart in the Illinois
Constitution.
A termination that itself violates the state and
federal constitutions would most likely be considered against
public policy.
Cf. Palmateer, 421 N.E.2d at 879.
But, in the absence of a conspiracy, the termination does
not violate any of Plaintiffs’ state or federal constitutional
rights.
The
question,
then,
is
whether
an
otherwise
lawful
termination violates public policy when the decision is related
to an employee exercising his personal rights outside of the
workplace.
Plaintiffs have not cited, and the Court cannot find,
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any case similar to the facts here where a court sustained a
retaliatory discharge claim.
Plaintiffs argue that they were
terminated because they refused to give up their Fifth Amendment
privilege against self-incrimination.
But the privilege against
self-incrimination a personal privilege that protects a person
from government “intrusion to extract self-condemnation,” Couch
v. United States, 409 U.S. 322, 328 (1973), and the Court cannot
find any authority to support the proposition that asserting the
privilege shields a person from private consequences.
To the contrary, the Illinois Supreme Court has referenced
other
constitutional
rights
explicitly
as
not
being
able
to
supply the public policy basis for a retaliatory discharge claim.
Barr v. Kelso-Burnett Co., 478 N.E.2d 1354, 1356–57 (Ill. 1985)
(finding
that
no
public
policy
is
violated
when
a
private
employer terminates an employee because of the employee’s speech,
which
is
protected
by
the
First
Amendment).
Based
on
this
authority, the Court cannot find that a private employer’s choice
to
terminate
an
employee
for
asserting
the
Fifth
Amendment
violates Illinois public policy.
Like the First Amendment, the
Fifth
is
Amendment’s
action.
See, id.
public
policy
tied
only
to
government
Thus, Plaintiffs have failed to establish
their claim of common-law retaliatory discharge.
IV.
For
reasons
stated
CONCLUSION
herein,
the
- 14 -
Defendants’
Motions
for
Summary Judgment [ECF Nos. 137 and 142] are granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:12/29/2014
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