Gomez et al v. Garda CL Great Lakes, Inc. et al
Filing
72
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 12/30/2013:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GABRIEL GOMEZ and
ADAM HEDBERG,
Plaintiffs,
v.
Case No. 13 C 1002
Hon. Harry D. Leinenweber
GARDA CL GREAT LAKES, INC.,
VILLAGE OF BROADVIEW, DETECTIVE
DAVID YURKOVICH, and CURTIS
MEIGHAN,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants’ two Motions to Dismiss
Plaintiffs’ Second Amended Complaint.
For the reasons stated
herein, both Motions are denied.
I.
As
related
(“Gomez”)
and
in
Adam
FACTUAL BACKGROUND
the
Complaint,
Hedberg
Plaintiffs
(“Hedberg”)
Gabriel
(“Plaintiffs”)
Gomez
were
employed by Defendant Garda CL Great Lakes, Inc. (“Garda”) as
armored truck drivers.
Garda is a private security company that
transports money securities.
Part
of
Plaintiffs’
job
transporting sealed bags of cash.
responsibilities
included
In December 2011, Plaintiffs
suspected that some cash was missing from one of their bags and
notified their supervisor. Plaintiffs denied any wrongdoing, and
Garda opened an internal investigation regarding the missing
money.
Plaintiffs cooperated with Garda’s investigation and
passed polygraph examinations.
At some point, Defendant Curtis Meighan (“Meighan”), a Garda
branch manager, informed the Broadview Police Department of the
alleged theft.
On or about February 24, 2012, Defendant David
Yurkovich (“Yurkovich”), a Broadview Police Detective, contacted
Gomez.
Yurkovich told him that he was investigating Garda’s
missing funds and asked him to come to the police station to give
a statement.
After consulting with counsel, Gomez informed
Yurkovich that, when questioned, he would invoke his Fifth
Amendment right to remain silent.
Two weeks later, Yurkovich
called Hedberg to explain that he was investigating the Garda
incident and, as with Gomez, request that Hedberg come in for
questioning.
On advice of counsel, Hedberg informed Yurkovich
that he intended to invoke his right to silence.
The next day, Meighan brought Gomez into his office to
discuss the investigation. He informed Gomez that he had learned
that he was not cooperating with Yurkovich’s investigation that
Garda
was
working
alongside
the
police
department
in
the
investigation, and that his failure to cooperate with the police
was also a failure to cooperate with Garda.
Nonetheless, Gomez
told Meighan that he was choosing to exercise his right to
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silence.
Meighan fired Gomez and had him escorted off Garda’s
property.
Meighan
termination
treatment
subsequently
and
of
the
Gomez
two
as
notified
men
Yurkovich
allegedly
leverage
against
of
agreed to
Gomez’s
use
Hedberg.
their
Hedberg,
however, refused to go along, and invoked his right to silence.
Yurkovich
allegedly
informed
Hedberg
that
he
had
been
communicating with Meighan that Gomez had already been terminated
for not cooperating, and that he, too, would lose his job if he
persisted in his silence.
Yurkovich contacted Hedberg for questioning again on March
5, 2012 and, again, Hedberg informed Yurkovich that he would not
answer questions.
Shortly thereafter, Meighan called Hedberg
into his office and informed him that he had been notified of his
unwillingness
to
cooperate
with
Yurkovich’s
investigation.
Hedberg told Meighan that he had not changed his mind and would
continue to remain silent.
Meighan then terminated Hedberg’s
employment with Garda.
Plaintiffs
Complaint
(the
brought
this
“Complaint”)
lawsuit.
seeks
The
damages
Second
based
on
Amended
alleged
deprivations of due process, conspiracy to deprive Plaintiffs of
their
constitutional
rights,
defamation,
and
retaliation.
Defendants have moved to dismiss all but the defamation claim.
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II.
LEGAL STANDARD
A complaint must provide a short and plain statement of the
claim showing the plaintiff is entitled to relief.
P. 8(a)(2).
FED. R. CIV.
To survive a motion to dismiss, the plaintiff must
“plead[] factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
that
the
defendant
is
liable
for
the
Ashcroft v. Iqbal, 556 U.S. 662, 663
(2009).
III.
A.
DISCUSSION
Conspiracy (Count III)
Count III alleges that Defendant Meighan and Yurkovich are
liable
under
42
U.S.C.
§
1983
for
conspiracy
Plaintiffs of their constitutional rights.
to
deprive
To establish § 1983
liability through a conspiracy, a plaintiff must establish that
(1)
a
state
official
and
private
individual(s)
reached
an
understanding to deprive plaintiff of his constitutional rights,
and (2) those individual(s) were willful participants in joint
activity with the State or its agents.
F.3d 577, 583 (7th Cir. 2011).
Logan v. Wilkins, 644
To afford defendants fair notice
of the claims against them, as required by the federal notice
pleading standards, conspiracy allegations must include “the
parties, the general purpose, and the approximate date of the
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conspiracy.” Loubser v. Thacker, 440, F.3d 439, 442-43 (7th Cir.
2006).
The Complaint alleges that Yurkovich and Meighan – a state
official and a private individual – agreed that Plaintiffs would
be terminated if they exercised their Fifth Amendment rights.
Compl. ¶ 123.
Both Yurkovich and Meighan threatened Plaintiffs
that they would be fired if they persisted in exercising their
right to remain silent.
conspiracy,
Meighan
Id. at 124.
fired
Gomez
after
In furtherance of the
he
learned
from
the
Broadview Police Department that Gomez was not cooperating with
the investigation.
Id. at 64-69.
Meighan informed Yurkovich
that he had fired Gomez, and then they agreed to use that
termination to coerce Hedberg into giving a statement.
71.
Id. at
Yurkovich expressed to Hedberg that he would lose his job if
he did not give a statement.
Compl. ¶¶ 64, 78, 81.
These alleged facts show that Defendants intended to punish
Plaintiffs for their exercise of their constitutional right to
remain silent. Under the pleading standard explained in Loubser,
these allegations of regular communication and joint action are
sufficient to give Defendants fair notice of the conspiracy claim
against them.
Therefore, the Motion to Dismiss the conspiracy
claim is denied.
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B.
Due Process (Count II)
Count
II
alleges
Plaintiffs
of
an
process.
that
Yurkovich
occupational
liberty
and
Meighan
interest
deprived
without
due
The concept of liberty protected by the Due Process
Clause includes one’s occupational liberty:
“the liberty to
follow a trade, profession, or other calling.”
City of Washburn, 965 F.2d 452 (7th Cir. 1992).
Wroblewski v.
To state a
claim, a plaintiff “must show that (1) he was stigmatized by the
defendant’s
conduct,
(2)
the
stigmatizing
information
was
publicly disclosed, and (3) he suffered a tangible loss of other
employment opportunities as a result of public disclosures.”
Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001).
1.
Meighan
The Court held previously that, as to Defendant Meighan,
Plaintiffs had alleged sufficiently all three elements of an
occupational liberty deprivation.
ECF No. 35 at 7-8 (noting
statements made by Meighan to third parties that questioned
Plaintiffs’
employment
integrity
in
their
effectively
chosen
line
barred
of
Plaintiffs
security
work).
from
Yet
Plaintiffs failed to state a claim against Meighan because they
failed to allege facts that would attribute Meighan’s conduct to
the state.
Id. at 8.
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“While a private citizen cannot ordinarily be held liable
under Section 1983 because that statute requires action under
color of state law, if a private citizen conspires with a state
actor, then the private citizen is subject to Section 1983
liability.” Brokaw v. Mercy Cnty., 235 F.3d 1000, 1016 (7th Cir.
2000).
As discussed above, the newest version of the Complaint
alleges the existence of a conspiracy between Meighan and a state
actor to deprive Plaintiffs of their constitutional right to
remain silent.
These allegations satisfy the state action
requirement for the purposes of the pending motions, and thus
Meighan’s Motion to Dismiss this Count is denied.
2.
Yurkovich
As to Defendant Yurkovich, the Court dismissed the due
process claim on the ground that the Complaint failed to allege
that Yurkovich was responsible for the liberty deprivation.
ECF
No. 35 at 10.
In the Complaint, Plaintiffs allege that Yurkovich referred
to them as
parties.
“thieves” to
Compl. ¶ 93.
Garda
employees
and
unknown
third
This allegation, missing from the
original Complaint, ties the alleged liberty deprivation to
Yurkovich’s conduct. Factual disputes, such as whether Yurkovich
merely
updated
Meighan
and
Garda
on
the
status
of
the
investigation (as Yurkovich insists) or conspired with the other
defendants to deprive Plaintiffs of their constitutional rights
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(Plaintiff’s version), cannot be resolved at the motion to
dismiss stage.
Yurkovich asserts that he is shielded by qualified immunity,
which “protects government officials from liability for civil
damages
insofar
established
as
their
statutory
or
conduct
does
constitutional
reasonable person would have known.”
U.S. 223, 231 (2009).
not
violate
rights
of
clearly
which
a
Pearson v. Callahan, 555
To determine whether a police officer is
entitled to the defense of qualified immunity, the Court asks (1)
whether “the facts alleged show the officer's conduct violated a
constitutional right” and (2) “whether the right was clearly
established” at the time of the alleged misconduct.
Saucier v.
Katz, 533 U.S. 194, 201 (2001).
Yurkovich’s defense rests entirely on his version of the
allegations. Whether Yurkovich is entitled to qualified immunity
is a factual question that the Court cannot decide at this stage.
Alvarado
v.
Litscher,
267
F.3d
648,
651
(7th
Cir.
2001)
(explaining that “because an immunity defense usually depends on
the facts of the case, dismissal at the pleading stage in
inappropriate”).
Therefore, Yurkovich’s Motion to Dismiss the
due process claim is denied.
C.
Retaliation (Count I)
Count I, brought under § 1983, alleges that Yurkovich and
Meighan
retaliated
against
Plaintiffs
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by
terminating
their
employment after they exercised their right to remain silent. As
discussed above, the alleged conspiracy between Meighan and
Yurkovich provides the state action necessary for a cause of
action under § 1983.
Adickes v. S. H. Kress & Co., 398 U.S. 144,
152 (1970).
“It is well established that an act in retaliation for the
exercise of a constitutionally protected right is actionable
under Section 1983 even if the act, when taken for different
reasons, would have been proper.”
Howland v. Kilquist, 833 F.2d
639, 644 (7th Cir. 1987).
To plead adequately a retaliation
claim,
allege
a
plaintiff
constitutionally
must
protected
that
(1)
activity,
(2)
he
he
engaged
in
suffered
a
deprivation that would likely deter protected activity in the
future,
and
motivating
(3)
“the
factor
in
retaliatory action.”
[protected]
the
activity
Defendants'
was
decision
at
to
least
take
a
the
Gomez v. Randle, 680 F.3d 859, 866 (7th
Cir. 2012).
Plaintiffs satisfy the first element easily, because they
have alleged that they invoked their Fifth Amendment right to
remain
silent.
Next,
Plaintiffs
have
alleged
that
their
employment was terminated – precisely the sort of “deprivation”
contemplated in Fifth Amendment retaliation cases.
Cunningham, 431 U.S. 801, 805-06 (1977).
Lefkowitz v.
Finally, Plaintiffs
have alleged that Meighan terminated their employment immediately
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after learning that they had exercised their rights.
¶¶ 68, 69, 87, 90, 91.
Compl.
This close timing is a sufficient basis
for the Court to infer, when ruling on a motion to dismiss and
drawing all inferences in favor of the Plaintiffs, that the
Plaintiffs were fired because they invoked their Fifth Amendment
privilege against self-incrimination.
Co.,
636
F.3d
312,
315
(7th
Loudermilk v. Best Pallet
Cir.
2011)
(explaining
that
suspicious timing can supply a causal nexus when “an adverse
action comes so close on the heels of a protected act that an
inference of causation is sensible”).
Plaintiffs have pled
adequately all three elements of a constitutional retaliation
claim.
Defendants contend that this case is governed by a line of
Seventh
Circuit
cases
that
discuss
Title
VII
employment
discrimination claims brought against state employers under §
1983.
that
In one case, for example, the Seventh Circuit explained
Section
1983
provides
a
remedy
for
deprivation
of
constitutional rights; it “does not provide a remedy for rights
created under Title VII.”
F.3d
946,
951
(7th
Schroeder v. Hamilton Sch. Dist., 282
Cir.
2002).
This
line
of
cases
is
inapplicable because Plaintiffs rely on their Fifth Amendment
privilege against self-incrimination and the corresponding right
to be free from retaliation when that right is exercised, not any
employment-related right created by Title VII.
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D.
Retaliatory Discharge (Count VI)
Plaintiffs assert a state law retaliatory discharge claim
against the Garda Defendants.
To state a retaliatory-discharge
claim, a plaintiff must allege that (1) an employee has been
discharged, (2) in retaliation for the employee’s 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).
While there is “no precise definition of the term” public
policy,
the
Illinois
Supreme
Court
has
explained
that
it
“concerns what is right and just and what affects the citizens of
the State collectively.”
N.E.2d
876,
878
(Ill.
Palmateer v. Int’l Harvester Co., 421
1981).
Public
policies
are
to
be
distinguished from those matters that are “purely personal.” Id.
So,
for
example,
the
tort
applies
in
situations
where
the
employee was fired for refusing to violate a statute or refusing
to evade jury duty, and not circumstances where the worker was
fired over a dispute over company policy or where the worker took
too much sick leave.
Id. at 879 (citing cases).
The Complaint alleges that Plaintiffs were terminated for
exercising their right to remain silent. That right is protected
by
the
Article
Fifth
I,
Amendment
Section
10
to
the
United
States
of
the
Illinois
Constitution,
Constitution,
Section 5/103-2(a) of Chapter 725 of the Illinois Code.
and
Similar
to the right to refrain from violating the law and the obligation
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to attend jury duty, the right to remain silent “strike[s] at the
heart
of
a
citizen’s
responsibilities.”
social
rights,
duties,
and
It is precisely the sort of “public policy”
that is violated when a citizen is fired for engaging in that
protected conduct.
Defendants
argue
that
the
privilege
against
self-
incrimination restricts only government conduct. Defendants will
have an opportunity to prove, through facts adduced in discovery
or at trial, that they were not engaged in a conspiracy and are
otherwise not a state actor.
However, for the purposes of the
motion to dismiss, the Complaint presents a plausible case that
Plaintiffs may be entitled to relief.
Thus, the Motion to
Dismiss this Count is denied.
IV.
CONCLUSION
For the reasons stated herein, the Defendants’ Motions to
Dismiss [ECF Nos. 37, 42] are denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:12/30/2013
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