Murray v. Kramer et al

Filing 95

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 5/5/2015:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENISE MURRAY,

)
)
Plaintiff,
)
)
v.
)
)
SHARON LITTLE, BERNESSA TATE, )
PATRICK FITZGERALD, RICHARD )
ELLITCH and JOSEPH WAYS, SR.,
)
)
Defendant.
)

No. 13 C 2496
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

The plaintiff was fired from her job with the Cook County State’s Attorney’s office when she
failed to show up for a mandatory drug test. She claims that, although she was given written notice
of the test and she signed and dated that notice, she didn’t actually read it – she merely folded it up
and stuck it in her pocket – and so didn’t show up for the test. To plaintiff’s way of thinking, that
wasn’t her fault and she is entitled to redress for something that she could quite easily have
prevented from ever happening to her. More importantly, even though she was able to challenge the
decision to terminate her through a multi-stage grievance process that culminated in a hearing before
an independent arbitrator, who found her version of events not credible, she insists that she has
been deprived of due process of law.
Throughout every area of the law, of course, a party’s choice to ignore a notice or not read
a contract works against themher. See e.g.,Posey v. Skyline Corp., 702 F.2d 102, 106 (7th Cir.
1983)(plaintiff’s claim that he never saw the notice at issue insufficient to stave off summary
judgment); Faulkenberg v. CB Tax Franchise Systems, LP, 637 F.3d 801,809(7th Cir.

2011)(“Ignorance of the contract's arbitration provision is no defense if they failed to read the
contract before signing.”); Shaw v. AutoZone, Inc., 180 F.3d 806, 811 (7th Cir. 1999)(rejecting claim
that plaintiff had never seen employee handbook when she signed acknowledgment form); Ho v.
Donovan, 569 F.3d 677, 681 (7th Cir. 2009)(“At all events, fear that governments are up to no good
is a reason to open notices and act to defend one's interests, not to ignore notices.”); Rios-O'Donnell
v. American Airlines, Inc., 2013 WL 157610, 5 (N.D.Ill. 2013)(“. . . failure to read these repeated
notices is regrettable, but it does not give her a basis for a viable claim. . . .”). See also Novitsky v.
American Consulting Engineers, L.L.C.,196 F.3d 699, 702 (7th Cir. 1999)(Easterbrook, J.)(“Any
other approach would undermine the validity of the written word and encourage people either to
close their eyes (hoping that they can reap the benefits without incurring the costs and risks of the
venture) or to come up with hard-to-refute tales of not reading or understanding the documents they
sign.”)(parenthesis in original); Bennett v. Flanigan, 220 F.2d 799, 802 (7th Cir. 1955).
But plaintiff – who is proceeding pro se1 – was skilled and creative enough to morph her
own intentional omission (if she is to believed) into a federal case where the defendants are accused
of having deprived her of due process. She began by alleging that her former employer fired her
because of a disability in violation of the Americans with Disabilities Act. When that didn’t work
out – Judge Feinerman dismissed her case – she charged her former employer and certain supervisory
1

Plaintiff twice moved for court-appointed, free counsel before Judge Feinerman and was twice
denied. [Dkt. ## 13, 43]. Of course, there is no right to counsel in a civil case, and when a party files a
motion for recruitment of counsel, the questions to be asked are whether she is indigent and has made a
reasonable effort to obtain counsel, and “whether the difficulty of the case—factually and legally—exceeds
the particular plaintiff's capacity as a layperson to coherently present it to the judge or jury himself.” Dewitt
v. Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014). That is exactly the analysis Judge Feinerman undertook,
first on July 25, 2003, and then again on December 16, 2013.
Plaintiff did not renewed her motion for recruitment of counsel after the case was transferred here
by consent pursuant to 28 U.S.C. §636(c)(1).

2

personnel with denying her due process as a public employee. That complaint was not dismissed,
and the defendants have moved for summary judgment.
While in certain contexts pro se plaintiffs are accorded a measure of latitude – often
substantial, see generally Stelmokas v. Kodzius, 460 Fed.Appx. 600, 605 (7th Cir. 2012); Michael
Fridkin and Rachel Brady, Playing on an Uneven Field: Litigating Against a Pro Se Opponent, The
Circuit Rider 17 (May 2015) – they are not entitled to ignore the rules that bind all other litigants,
McNeil v. United States, 508 U.S. 106, 113 (1993); S.E.C. v. Spadaccini, 256 Fed.Appx. 794, 795
(7th Cir.2007), and they most certainly are not entitled to a misapplication of legal principles in their
favor because they are proceeding without counsel. Nonetheless, plaintiff’s response to the motion
for summary judgment has been considered with far greater latitude than had it been filed by a
lawyer.
For example, none of the arguments that Plaintiff makes as to why the pretermination
interview and post-termination hearings she fully participated in did not amount to due process are
supported by citation to pertinent authority. Had they been made by a lawyer, they would be deemed
waived. Bass v. Joliet Public School Dist. No. 86, 746 F.3d 835, 841 n.1 (7th Cir. 2014); United
States v. Hassebrock, 663 F.3d 906, 914 (7th Cir.2011); Mahaffey v. Ramos, 588 F.3d 1142, 1146
(7th Cir.2009). Nonetheless, all of her skeletal, perfunctory arguments, and accusations are addressed.

I.
Facts
A.
As always, the facts underlying this summary judgment proceeding are drawn from the
parties’ Local Rule 56.1 submissions. “For litigants appearing in the Northern District of Illinois,
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the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for
summary judgment.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012). Even pro
se litigants must comply with the local rules, Whitmore v. Boelter Brands, 576 Fed.Appx. 609, 610
(7th Cir. 2014); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006), and, pursuant to Local Rule
56.2, plaintiff received notice of the requirements of the local rules and consequences for not
following them when defendants filed for summary judgment. [Dkt. # 85].
Local Rule 56.1 requires a party seeking summary judgment to include with its motion “a
statement of material facts as to which the ... party contends there is no genuine issue and that entitle
the ... party to a judgment as a matter of law.” Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus,
Inc., 527 F.3d 635, 643 (7th Cir. 2008). Each paragraph must refer to the “affidavits, parts of the
record, and other supporting materials” that substantiate the asserted facts. Local Rule 56.1(a)(3);
F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005).
The party opposing summary judgment must then respond to the movant's statement of
proposed material facts; that response must contain both “a response to each numbered paragraph
in the moving party's statement,” Local Rule 56.1(b)(3)(B), and a separate statement “consisting of
short numbered paragraphs, of any additional facts that require the denial of summary judgment,”
Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact,
must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp.,
Inc., 559 F.3d 625, 632 (7th Cir. 2009); Bay Area Business Council, Inc., 423 F.3d at 633.
The district court is entitled to enforce strict compliance with its local rules regarding
summary judgment motions. Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir. 2011);
Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir.2010). Responses and facts
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that are not set out and appropriately supported in an opponent’s Rule 56.1 response will not be
considered, see Shaffer v. American Medical Association, 662 F.3d 439, 442 (7th Cir. 2011)(court
need not consider any fact not contained in the parties' Rule 56.1 statements); Bay Area Business
Council., 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission),
and as a result, the movant’s properly supported facts will be deemed admitted. Apex Digital, Inc.
v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013).
B.
The plaintiff was an administrative assistant in the Cook County Department of Corrections’
records department. As such, she was subject to Sheriff’s General Order 3.26.2+A of the Civilian
Drug-Free Workplace Policy, which states:
mandatory drug testing shall be conducted when a civilian employee is returning to
the Department after an absence of 15 days or more with the exception of vacation
time, personal time, holiday and compensatory time due days. However if the reason
for the absence is medical but other time earned is then used in the alternative the
employee will be subject to testing.
[Dkt. #82, ¶ 10]. The General Order further provided that a “[r]efusal to submit to” a drug test or
“[f]ailure to cooperate” meant mandatory termination.” [Dkt. #82, ¶ 11; Def.Ex. K, at 0304].
Between June 17, 2011 and July 7, 2011, plaintiff tried to use sick leave for the following
dates: June 19-21, June 26-30, and July 3-7. When she called in sick for 16 additional days between
July 11, 2011 and August 17, 2011, she no longer had sufficient accumulated sick leave and her
absences were classified as unauthorized. [Dkt. #82, ¶ 22]. After being off work for medical reasons
so much – 15 days or more in a row – the rules required plaintiff to follow certain steps upon her

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return on July 8, 2011.2 She had to see the County doctor and present a note from her physician
releasing her for return to her job. [Dkt. #82, ¶¶ 21, 23]. The County doctor also had to examine her
and give her a pass. [Dkt. # 2, ¶¶21, 24]. And, of course, she had to comply with the mandatory drug
test required of all those in her situation.
After seeing the County doctor, plaintiff moved on to see Sharon Little, the Cook County
Sheriff’s Office’s personnel manager, at 4 p.m. on July 8th. During that meeting, Ms. Little handed
plaintiff a Drug Testing Notification Form. [Dkt. #82, ¶27]. Plaintiff does not dispute that she
received the form. (Plaintiff’s Statement of Facts, ¶ 1).3 Ms. Little says she also told plaintiff that
she had to submit to a drug test. Ms. Little says she went on to tell plaintiff where the drug test
would take place, that she had an hour to make it to the drug testing unit, and that they would be
waiting for her there. [Dkt. #82, ¶27]. Plaintiff claims that Ms. Little never told her anything, just
handed her the forms. (Plaintiff’s Statement of Facts, ¶ 1). Both Ms. Little and plaintiff signed,
dated and wrote the time – 4:05 p.m. – on the Drug Testing Notification Form, and Ms. Little gave
plaintiff a copy to present to the Drug Testing Unit. [Dkt. #82, ¶ 28]. However, under plaintiff’s
version, nothing was said by anyone. Plaintiff then left, and Ms. Little called the Drug Testing Unit
to let them know plaintiff was on the way. [Dkt. #82, ¶ 29].

2

Plaintiff complains that defendants are adding weekend days into the mix to arrive at 15.
(Plaintiff’s Statement of Facts, ¶¶ 22, 23, 26, 33). But the attendance records she submits show she was
absent the 5 weekdays of the week of June 19th, 5 weekdays the week of June 26th, and 5 weekdays the week
of July 3rd, for a total of 15 consecutive weekdays, even if weekends are not included. (Plaintiff’s Statement
of Facts, Ex. B, at 14). But, in any event, the rule clearly states that if the reason for an absence was medical
– and plaintiff does not dispute hers was – even time used other than sick leave time is included. (Def. Ex.
K, at 0305).
3

Plaintiff complains that, in the past, she had received a written drug testing notice from the County
doctor, but did not get one this time. (Plaintiff’s Statement of Facts, ¶ 24). But, no matter, because she
concedes she got a written notice from Ms. Little.

6

The form was the epitome of simplicity, with “DRUG TESTING NOTIFICATION FORM”
in large-type, all-caps, block letter emblazoned at the top. Below that were blocks in which to print
the employee’s and supervisor’s names, and below that were a set of five instructions, the first two
being that the employee was selected for a drug test and had to report to screening at 31st and South
California Avenue4, and that the employee had to be there within an hour. Below that were blocks
for the supervisor’s signature and the employee’s signature and time and date. Above the space for
the employee’s signature it says, “I understand the contents of this form.” [Defendants’ Ex. K, at
0288]. It is difficult to imagine how one could not notice it was a drug testing notice while taking
the time to sign the form and enter the time and date. And while it would seem impossible to have
signed the form and averted one’s eyes from what was immediately above the signature block, we
accept Plaintiff’s version of things.
About an hour later, the supervisor of the Drug Testing Unit called Ms. Little and told her
plaintiff never arrived. [Dkt. #82, ¶ 29]. Ms. Little called the Records Department to see if plaintiff
had gone back there, but she had not. Ms. Little informed the Records Department that plaintiff
could not return to work until she had passed the mandatory drug test. [Dkt. #82, ¶ 30]. It turns out
that plaintiff went straight home after her meeting with Ms. Little. [Dkt. #82, ¶ 31]. While she was
at home, her supervisor, Bernessa Tate, called her and told she could not return to work because she
had failed to comply with the mandatory drug test. [Dkt. #82, ¶ 32]; (Plaintiff’s Statement of Facts,
¶1). Plaintiff claims this was the first she heard of any drug test, but she also claims that she simply

4

The facility is just four blocks from the office where plaintiff and Ms. Little were. [Dkt. # 82, ¶ 25].

7

didn’t bother to read the written notice. (Plaintiff’s Statement of Facts, ¶ 1).5
On July 11th, plaintiff went back to see Ms. Little and explained that she had not shown up
for the drug test because she hadn’t heard her tell her she had to take a drug test and she didn’t know
that the test was mandatory if you combined sick leave with other time to get to the 15-day limit.
[Dkt. #82-4, at 16; Plaintiff Dep., at 57]. She didn’t bother to read the drug testing form Ms. Little
gave her and that she signed and dated; she just folded it up and put it in her pocket. [Dkt. #82-4,
at 20; Plaintiff Dep., at 49, 72]. Still, at her deposition, plaintiff testified that she had been on
extended absences before and had submitted to drug tests as a result, and that she was familiar with
the process. [Dkt. #82, ¶ 34; Dkt. #82-4, at 17; Plaintiff Dep., at 61].6 Indeed, she even submits as

5

Attempting to discredit Ms. Little’s testimony that she gave plaintiff oral notice of the test – again,
there is absolutely no dispute that she gave her written notice – plaintiff points to Ms. Little’s testimony from
plaintiff’s November 2011 Unemployment Benefits Hearing:
Q: Did you tell her what you were giving her?
Ms. Little: Yes.
Q: And what did you say to her and what did she say to you about that document?
Ms. Little: I gave her the documentation, she signed off on it, then I told her that she needed
to report to the Drug Testing Unit and she signed the paperwork and left.
(Plaintiff’s Statement of Facts, ¶ 15; Ex. B, at 6; see also ¶¶ 27, 28, 31). Plaintiff submits that because Ms.
Little said did not say what plaintiff’s response was at the time, she is making up the story that she orally
informed her of the drug test. (Plaintiff’s Statement of Facts, ¶ 15). It’s not clear how plaintiff gets from
point A to point B on that line of reasoning, especially since Ms. Little clearly testified that she told plaintiff
what she was giving her. At other points in plaintiff’s submissions, it would seem that plaintiff’s theory is
that, because Ms. Little’s memory was more specific much later on in her affidavit of January 27, 2015, the
fabrication was a recent one. But in the affidavit, as in the deposition testimony, Ms. Little says nothing
about any response plaintiff might have had to the notice of a drug test either. (Defendants’ Ex. C, Little
Aff., ¶ 8).
6

Plaintiff asserts that her “first clear understanding” of this process came during her deposition.
(Plaintiff’s Statement of Facts, ¶ 10). But her deposition testimony indicates that she had this understanding
previously. The questions are phrased, “were you aware” and “[t]hat was your understanding”, and plaintiff
(continued...)

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evidence the written notice of a drug test that she received in April 2011, which she read and
complied with. (Plaintiff’s Statement of Facts, Ex. A, at 15).
Despite her failure to comply with testing on July 8th, plaintiff was allowed to return to work
after she passed a drug test on July 11th. But the reprieve was short-lived. On July 13th, the
supervisor of the Drug Testing Unit, Peggyann Hynes, sent a complaint to the Office of Professional
Review informing them that plaintiff had failed to show up for a mandatory drug test on the 8th. [Dkt.
# 82, ¶ 35]. Patrick Fitzgerald was assigned to investigate, and along the way he interviewed
plaintiff and Ms. Little, and acquainted himself with the pertinent documents like the drug testing
notice plaintiff had signed and the complaint from Ms. Hynes. [Dkt. # 82, ¶ 36]. His interview with
plaintiff took place on July 26th, and plaintiff, who was a member of the Service Employees
International Union (“SEIU”), had her union steward with her. [Dkt. # 82, ¶ 38]. Richard Ellitch,
another investigator, was also at the interview although he had played no part in the investigation
prior to that. [Dkt. # 82, ¶ 39].
Prior to the interview, plaintiff received a written notice of the charges against her, informing
her that she could furnish the names of witnesses who would testify in her behalf, and of her right
to counsel and her right to postpone the interview in order to retain counsel. [Dkt. # 82, ¶¶ 40-43].
Plaintiff signed these notices, and testified at her deposition that she read them and understood them.

6

(...continued)
answers affirmatively throughout that line of questioning. (Plaintiff. Dep., at 36). Later in her deposition,
plaintiff testified that, at the time of her return to work, she didn’t know that she had to submit to a drug test
if she combined sick and personal leave for a 15-day medical absence. (Plaintiff Dep., at 57). But, when she
was given the rules to read during her testimony, she said it was clear. (Plaintiff Dep., at 58). And, as
plaintiff concedes, she was obligated to be familiar with the rules and policy as a Sheriff’s Office employee.
(Plaintiff Dep., at 30). If she simply didn’t read it until her deposition – which seems to be the case as she
quickly understood it then – that obviously was her choice.

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[Dkt. # 82, ¶¶ 40-42; Dkt. # 82-4, at 22; Plaintiff Dep., at 79-81]. She also received a waiver of
counsel form, which she signed, indicating she wished to proceed immediately without counsel.
[Dkt. # 82, ¶ 42; Dkt. # 82-4, at 22; Plaintiff Dep., at 80-81]. And, Mr. Fitzgerald showed her the
drug testing notice that she signed and dated and the complaint from Ms. Hynes.7
Mr. Fitzgerald concluded that plaintiff had violated the General Order by failing to show up
for an mandatory drug test. [Dkt. # 82, ¶ 49]. He submitted his findings to the Office of
Professional Review director, Joseph Ways, who concurred and recommended that plaintiff be
terminated. [Dkt. # 82, ¶¶ 50-51]. The recommendation went through command channels and was
approved. [Dkt. # 82, ¶ 52]. Plaintiff was finally terminated on August 17th, and she had an exit
interview with Rosemarie Nolan and the SEIU vice president. [Dkt. # 82, ¶ 54]. Following the exit
interview, plaintiff signed the exit interview form under protest, as she said she would be filing a
grievance. [Dkt. # 82, ¶ 56].
SEIU filed a grievance on plaintiff’s behalf pursuant to the Collective Bargaining Agreement.
The union argued that : a) the Sheriff’s Office failed to follow the Civilian Drug-Free Workplace
Policy; b) the Sheriff’s Office failed to follow progressive discipline or demonstrate just cause for
plaintiff’s termination and; c) the drug test plaintiff took on July 11, 2011 yielded a negative result
for illegal drugs. [Dkt. # 82, ¶ 61]. At the third step of the grievance process, the grievance hearing

7

Incredibly, plaintiff submits, without citation to any supporting evidence that Mr. “Fitzgerald never
presented [her] with any documents.” (Plaintiff’s Statement of Facts, ¶ 44). As for the clearly notice of
charges, notice of administrative rights, and attorney waiver, plaintiff signed. It is, therefore, ridiculous to
assert that Mr. Fitzgerald did not present them. As for the complaint and the written drug testing notice, both
Mr. Fitzgerald and Mr. Ellitch swore in their affidavits that plaintiff received these documents. (Defendants’
Exs. F, ¶ 16; G, ¶ 15). In her statement of facts, plaintiff cites to no evidence that Mr. Fitzgerald did not
provide her with any documents; in fact, she cites to the very paragraph of his affidavit in which he says he
gave her – and she signed – the notice of charges, notice of administrative rights, and attorney waiver.
(Plaintiff’s Statement of Facts, ¶ 44, Ex. D, at 35, line 15).

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– presided over by the director of labor affairs for the Cook County Sheriff’s Office – plaintiff
acknowledged that she made an error and signed the drug testing notification form without reading
it. Ms. Little contradicted this by stating that plaintiff had reviewed the form in front of her. [Dkt.
# 82, ¶ 63; Dkt. # 82-15, at 2]. The director denied the grievance, concluding that there had been no
violation of the CBA. [Dkt. # 82, ¶ 64; Dkt. # 82-15, at 3].
The final step of the grievance process was independent arbitration. [Dkt. # 82, ¶ 68]. The
arbitration hearing took place on October 5, 2012, in front of Arbitrator Edwin H. Benn. Plaintiff
was represented by an SEIU attorney, Daniel Kuehnert. The burden was on the Sheriff’s Office to
not only demonstrate that plaintiff engaged in misconduct, but also that the level of discipline was
appropriate. [Dkt. # 82, ¶ 69]. During the hearing Ms. Little, Ms. Hynes, and the plaintiff testified,
documents were entered into evidence, and both the Sheriff’s Office and plaintiff’s union counsel
presented arguments. [Dkt. # 82, ¶ 70].
Arbitrator Benn issued his 14-page Opinion and Award on October 29, 2012, setting forth
the evidence that was presented at the hearing, the burden the Sheriff’s Office needed to meet, an
analysis as to why the Sheriff’s Office had shown that plaintiff had engaged in misconduct, why the
level of discipline was appropriate, and why the Union’s “well-framed arguments” were not enough
to overturn plaintiff’s termination. [Dkt. # 82, ¶ 71]. Arbitrator Benn issued his 14-page, carefully
reasoned opinion on October 29, 2012 denying plaintiff’s grievance. [Dkt. #82, Ex. O]. He
concluded that the Civilian Drug-Free Workplace Policy required plaintiff to submit to a mandatory
drug test on July 8, 2011, and by not submitting to a drug test on that date she had violated that
policy. Id. He also found that the Civilian Drug-Free Workplace Policy was clear that termination
was the consequence for any employee that failed to obey an order to take a drug test and, despite
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“the strong efforts of the Union on the Grievant’s behalf,” he found just cause for plaintiff’s
termination and denied her grievance. Id.
The arbitrator thoroughly reviewed the conflicting testimony between plaintiff and Ms. Little
regarding whether plaintiff was told that she had to take an immediate drug test at the drug testing
unit and that they were awaiting her arrival. Id. at p. 5, et seq. Plaintiff, of course, told a different
story, denying that she was given notification and instructions that she had to take a drug test that
day. The arbitrator also discussed plaintiff’s claim that she never noticed that any of the paperwork
indicated that she had to take a drug test. Id. at 60.
The arbitrator made a well-reasoned credibility determination regarding who was telling the
truth, Ms. Little or plaintiff. He found that “the evidence shows” that Ms. Little “specifically told”
plaintiff that she had one hour to go to the drug testing unit and take the drug test, and that “they
were waiting on her... at the drug trailer... [and] she had to go to the Drug Testing Unit.” The
arbitrator went on to find that plaintiff’s signature appears on the Drug Testing Notification Form
“right below the language ‘I understand the contents of this form.’” The arbitrator found that the
Drug Testing Notification Form was “very clear” in its instructions in this regard. Id. at 8-9. The
arbitrator concluded his careful credibility assessment by noting Ms. Little’s demeanor and good
recall of events and the absence of any apparent motive to fabricate the testimony against plaintiff,
who, he emphasized, had been through drug testing before. He noted that the instructions on the form
could not have been plainer in telling plaintiff she had one hour from the time she signed the form
at 4:05 p.m. before she took the test. Given the overwhelming evidence, the arbitrator understandably
concluded that plaintiff’s “denial that Little instructed her to take the drug test cannot be credited.”
Id..
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II.
ANALYSIS
A.
Summary judgment is proper if the pleadings, discovery materials, disclosures, and affidavits
demonstrate no genuine issue of material fact such that the defendants are entitled to judgment as
a matter of law. Fed R. Civ. P. 56(c); Covell v. Menkis, 595 F.3d 673, 675 (7th Cir. 2010). While we
construe all facts and draw all reasonable inferences in favor of the nonmoving party, this favor does
not extend to drawing inferences that are supported by only speculation or conjecture. Argyropoulos
v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)
Accordingly, the nonmoving party must do more than raise some metaphysical doubt as to
the material facts; she must come forward with specific facts showing that there is a genuine issue
for trial. Id. A genuine issue of material fact only exists if there is sufficient evidence favoring the
nonmoving party to permit a jury to return a verdict for that party. Id.
Plaintiff’s complaints about the due process the defendants afforded her in connection with
her termination are these: while she received written notice that she had to go for a drug test, she did
not receive oral notice; that she did not receive notice that an investigation was being conducted until
her pretermination hearing on July 26, 2011; and that Mr. Fitzgerald was biased because he had been
conducting the investigation and by the time of her interview with him, her termination was a fait
accompli. She has several other gripes with what transpired between the time she pocketed the drug
testing notice without reading it and the conclusion of her independent arbitration hearing but, for
the most part, these do amount to real arguments about deprivation of due process. Nevertheless,
as plaintiff is proceeding pro se, we address some of her arguments regarding what happened to her
before her right to due process right “clicked in,” so to speak, and her complaints about certain things
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that may or may not have occurred along the way.
B.
This all began with plaintiff’s extended leave of absence, and it has been noted that, despite
the assertions to the contrary, her absentee record reflects that she was off for 15 consecutive work
days. Supra at 3 n.2. Even so, an argument along the lines of the defendants sending plaintiff for
mandatory drug testing after an absence of less that 15 days is an argument that the defendants did
not adhere to their own rules, which doesn’t amount to a due process violation. Kvapil v. Chippewa
County, Wis., 752 F.3d 708, 715 (7th Cir. 2014). What is more, even if defendants’ addition had been
wrong, plaintiff had several pre- and post-termination opportunities to address this. There is no
indication she ever tried. And she cannot transmute her own failures into a due process violation by
the defendants.
Plaintiff also says that she did not know that the 15-day limit included both sick leave and
other leave if the reason for the absence was medical. But, as also already noted, when she read the
policy at her deposition, she testified that she had no trouble understanding it. She simply had not
read it before, even though she acknowledges that it was her responsibility to know the rules. And,
in any event, it really doesn’t matter because she concedes she received a written notice – a clearly
written notice, as already discussed – that she had to report for a drug test before she could return
to work.
Still, the plaintiff insists she has a problem with the notice she received. She complains that
while she received a written notice that she had to undergo a drug test, she did not receive oral notice
at that time. But as noted above, this is a contention that the arbitrator rejected after careful analysis.
Due process does not require that that credibility assessment be jettisoned in favor of one that
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Plaintiff finds congenial to her story.
Plaintiff adds to this argument the unsupported charge that Ms. Little lied throughout the
grievance process when she said she told plaintiff she had to take a drug test in addition to giving
her written notice – although she does not make any attempt to explain what this has to do with the
due process argument. But that’s not what the arbitrator found after hearing the witnesses, analyzing
in a common sense fashion the evidence, and having had the opportunity to observe the witnesses.
Jones v. Astrue, 623 F.3d 1155,1160 (7th Cir.2010). Compare Ashcraft v. Tennessee, 322 U.S. 143
(1944) (Jackson, J., dissenting) (“A few minutes observation of the parties in the courtroom is more
informing than reams of cold record.”). Particular deference is given to credibility determinations,
which will not be disturbed unless “completely without foundation.” United States v. Salyers, 160
F.3d 1152, 1162 (7th Cir.1998), citing United States v. Ferguson, 35 F.3d 327, 333 (7th Cir.1994).
Unless the fact finder has credited testimony that is contrary to the laws of nature or so internally
inconsistent or implausible on its face that no reasonable fact finder would credit it, courts of appeals
defer to the trial court's finding. See United States v. Collins, 604 F.3d 481, 486 (7th Cir.2010). There
is nothing in this case that requires a different rule to be applied.
The fact that Ms. Little’s affidavit may have been slightly more detailed than her deposition
testimony – according to the plaintiff – doesn’t undermine her credibility in the least. Deposition
testimony happens in real time, and a deponent’s responses are a function of the questions asked by
the examiner. If the plaintiff’s attorney who questioned Ms. Little chose not to ask questions that
would have called for factually detailed answers – there isn’t much detail involved in the encounter
in any event – Ms. Little can hardly be faulted for the understandably limited questioning. See n. 5
supra. Any lack of detail is a function not of Ms. Little’s fidelity to the truth, but of her lawyer’s
15

strategic decisions, the consequences of which are binding on her. Moreover, one compiles an
affidavit at her leisure and without the pressure of staring down the barrel of an inquisitor. Finally,
there is nothing in Ms. Little’s affidavit that contradicts anything she said at her deposition.
But, most importantly, none of this matters. Due process doesn’t guarantee who wins
otherwise every disappointed litigant would have a Constitutional claim. That would be silly. The
great thing about a written drug test notice is that the employee signs and acknowledges receiving
is that the recipient can’t come back and say she didn’t have any notice she had to take a drug test.
And, on the other side, it protects an employee from a situation where, in the absence of written
notice, a supervisor can lie about having provided the employee oral notice. It bears repeating that
plaintiff does not claim that Ms. Little prevented her from reading the notice, obscured the notice
while she signed (of course plaintiff could have read it immediately thereafter), or told her the notice
she was signing was something else entirely. And, having been sent for drug testing before, plaintiff
would not be confused as to what a drug testing notice was or meant if she glanced at it while signing
it. Accepting plaintiff’s story at face value, she has no one to blame but herself for folding it up and
stuffing it in her pocket. Decisions have consequences. Lynch, Inc. v. SamataMason Inc., 279 F.3d
487, 490-492 (7th Cir.2002)
C.
That brings us to the due process claim. Defendants don’t dispute that plaintiff had a property
interest in her job, as she was a member of a union with a collective bargaining agreement. See
Palka v. Shelton, 623 F.3d 447, 452 (7th Cir. 2010). As such, the only issue is whether she was
afforded due process in connection with her termination. To prove a violation of his procedural due
process rights, a plaintiff must show that the State deprived her of a protected liberty or property
16

interest and that the deprivation occurred without adequate due process. Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 569 (1972); Salas v. Wisconsin Dept. of Corrections, 493 F.3d 913,
926-27 (7th Cir. 2007).
The inquiry breaks down into pre- and post-termination proceedings. The scope of the right
to a pretermination process is dependent upon the adequacy of post-termination remedies. Carmody
v. Board of Trustees of University of Illinois, 747 F.3d 470, 474 (7th Cir. 2014); Michalowicz v.
Village of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008). Due process “requires some kind of a
hearing prior to the discharge of an employee who has a constitutionally protected property interest
in his employment . . . .” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). When
adequate post-termination proceedings exist, a pretermination hearing need only provide “an initial
check against mistaken decisions – essentially, a determination of whether there are reasonable
grounds to believe that the charges against the employee are true and support the proposed action.”
Id. at 545-46.
In other words, if “‘there is the opportunity for full administrative review once a termination
decision has been reached, the pre-termination hearing can be somewhat truncated.’” Michalowicz,
528 F.3d at 534. In its truncated form, a pretermination “hearing” need only include oral or written
notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee
to tell his or her side of the story. Gilbert v. Homar, 520 U.S. 924, 929 (1997); Loudermill, 470 U.S.
at 546; Carmody, 747 F.3d at 474; Michalowicz, 528 F.3d at 537. The idea is that there be “an an
initial check against mistaken decisions—essentially, a determination of whether there are reasonable
grounds to believe that the charges against the employee are true and support the proposed action...”
Loudermill, 470 U.S. at 545-46; Gilbert, 520 U.S. at 929.
17

1.
The pretermination “hearing” in this case consisted of plaintiff, accompanied by her union
steward, sitting down for an interview with Mr. Fitzgerald, who had been assigned to investigate her
case. Mr. Ellitch also sat in, although he had not been assigned to plaintiff’s case. Before the
interview, plaintiff was given a written notice of the charge that she had failed to comply with the
drug testing policy, written notice of her administrative rights, and a waiver of counsel form. As
already noted, she signed and dated these notices, indicating that she understood what was going on
and what would transpire. She does not contend otherwise and any such argument would be still
born. She has never contended otherwise.
Mr. Fitzgerald showed plaintiff the complaint register from Ms. Tate and the drug testing
notice that plaintiff had signed during her meeting with Ms. Little. (Defendants’ Ex. F, ¶ 16; Ex. G,
¶ 15); see also supra at 7 n.7. During the interview, plaintiff told the story we are now familiar with:
Ms. Little gave her written notice of her mandatory drug test but not oral notice, and although
plaintiff signed and dated the notice, she said she stuffed it in her pocket without reading it. As
plaintiff concedes, “[t]hey allowed [her] to tell [her] story.” (Plaintiff’s Dep., at 82). Mr. Fitzgerald
typed up her statement, and she signed it, making only a single typographical change. Mr. Fitzgerald
later concluded that plaintiff had violated the drug testing policy and submitted his findings to Mr.
Ways.
It is beyond debate that plaintiff had notice of the charge against her, was shown the evidence
supporting that charge, and had an opportunity to tell her side of the story. That’s all that is required
in these circumstances. Gilbert, 520 U.S. at 929; Loudermill, 470 U.S. at 546; Carmody, 747 F.3d
at 474; Michalowicz, 528 F.3d at 537. But plaintiff has some issues with the process. She complains
18

that she received these notices just prior to the interview, and that she did know that an investigation
had been ongoing since she failed to show up for her drug test. She says if she had had more time
to consider things, she “could have made a better decision on her Administrative rights.” (Plaintiff’s
Statement of Facts, ¶ 42). But it is undisputed that, had plaintiff not wished to proceed at that time,
the interview would have been postponed to a later date. [Dkt. # 82, ¶ 43]; (Plaintiff’s Statement of
Facts, ¶ 43). And it is not clear what more plaintiff could have accomplished had she done so. The
charge against her was singularly uncomplicated, and it is undisputed that she claims she failed to
read the notice despite having signed it, and that she failed to show up for her drug test. Under such
circumstances, even contemporaneous notice without the opportunity for postponement would
satisfy the requirements of due process. See Staples v. City of Milwaukee, 142 F.3d 383, 387 (7th
Cir. 1998)(“. . . we would not want to say that contemporaneous notice at a hearing could never
satisfy due process. Whether it does or not will depend on what has taken place before the hearing,
on the nature of the violation the employee is charged with, and on the risk of error if the employee
does not have some advance notice of the hearing.”).
Plaintiff explains that her negative drug test on July 11, 2011, gave her a “false sense of
security” and, presumably, this is why she chose to proceed with the interview without delay.
(Plaintiff’s Statement of Facts, ¶ 43). She doesn’t indicate what she would have done with the extra
time or how it might have helped her. Indeed, it’s not exactly clear what she is driving at because
the notice of charges she signed clearly informs her that she failed to comply with drug testing
policy. (Defendants’ Ex. K, at 0319). Moreover, the typed statement, which she signed, recounting
the story she told at the interview says nothing about the July 11 drug test. (Defendants’ Ex. K, at
0319). If she thought the negative test trumped her failure to show up for the initial test, she surely
19

would have made that a part of her statement.
Plaintiff also asserts that the pretermination process was not fair because Mr. Fitzgerald had
been the one doing the investigating. (Plaintiff’s Statement of Facts, ¶¶ 38, 41). But the fact that
Mr. Fitzgerald was conducting the investigation does not amount to bias against the plaintiff. See
Staples v. City of Milwaukee, 142 F.3d 383, 387 (7th Cir. 1998)(“. . . [plaintiff] must have something
more than the fact that [the same individual] was involved in both the investigation and adjudication
of the dispute.”); Perotti v. Marberry, 355 Fed.Appx. 39, 43 (7th Cir. 2009)(“A hearing officer is
not automatically deemed biased, however, simply because he adjudicated or was involved in a
previous disciplinary charge . . . .”).8
Finally, plaintiff ascribes great import to the fact that, on the decision to terminate her, Mr.
Ways scribbled “No Loudermill,” as in “no Loudermill hearing.” (Plaintiff’s Statement of Facts, ¶
8). Seemingly, plaintiff takes this as a demonstration of the intent to deprive her of due process. But
as we have seen, nothing of the sort was visited upon her because she had notice of the charge
against her and a full and fair opportunity to tell her story, as she admitted at her deposition. Most
likely this jotting is nothing more than a reference to the fact that, given the extensive posttermination process that would be due plaintiff as an SEIU union member – see infra at 21, – no fullblown, pre-termination Loudermill hearing was called for.
2.
The post-termination process was certainly adequate as well. As a member of SEIU, the

8

Plaintiff also contends that her previous disciplinary record played a role in her termination and
that the information in that record was inaccurate. (Plaintiff’s Statement of Facts, ¶ 38). But there is no
indication that plaintiff’s past disciplinary record played any role in Mr. Fitzgerald’s conclusion that she
violated drug testing policy. (Defendants’ Ex. K, at 0256-0257).

20

plaintiff availed herself of a multi-tiered grievance process that culminated in a hearing before an
independent arbitrator. At the penultimate step in this process, a grievance hearing, plaintiff had
union representation and had the opportunity to present evidence. The decision maker at that level
determined that plaintiff violated the drug testing policy, and that termination was the appropriate
discipline.
From there, the plaintiff appealed and had another hearing before an independent arbitrator.
This time she was represented by an attorney and, again, had the chance to put on evidence and
witnesses. At this hearing, it was the Sheriff’s Office’s burden to prove that plaintiff violated the
policy and that the discipline was appropriate. The arbitrator determined she did and that it was,
explaining his conclusions and evaluation of the evidence in a 14-page opinion, in which he noted
that plaintiff’s representation made “strong efforts” on her behalf. Still, he concluded that there was
just cause for plaintiff’s termination.
These procedures gave the plaintiff all the process to which she was due. She “had the
opportunity to present evidence and arguments concerning” her failure to show up for her mandatory
drug test, and “had more than sufficient notice and an opportunity to be heard . . . .” Bodenstab v.
County of Cook, 569 F.3d 651, 664 (7th Cir. 2009). See also Powers v. Richards, 549 F.3d 505, 512
(7th Cir. 2008)(plaintiff had “the right to a full hearing—where he was represented by counsel and
allowed to conduct discovery, present evidence, and cross-examine witnesses—and that [s]he took
full advantage of it.”). Moreover, the Seventh Circuit has made it clear that grievance and arbitration
procedures typically satisfy the requirements of post-termination due process. Griffin v. Bennett,
204 Fed.Appx. 565, 568-569 (7th Cir. 2006)(“Moreover, our precedents do not suggest that public
employees are entitled to post-termination relief apart from what is provided for in their collective
21

bargaining agreements.”); Catlett v. Woodfin, 13 Fed.Appx. 412, 416 (7th Cir. 2001); Chaney v.
Suburban Bus Div. of the Reg'l Transp. Auth., 52 F.3d 623, 630 (7th Cir.1995). There is nothing
about the post-termination proceedings in this case that suggest they should be regarded any
differently.
Plaintiff’s problems with her post-termination proceedings aren’t really arguments about
whether she was afforded due process, they are more along the lines of an appeal of the two
proceedings, one an independent arbitration, in which she was found to have violated policy and her
termination was upheld. But, these arguments will be addressed in any event. She says the
conclusions of the grievance hearing and the independent arbitrator are both wrong because she
never refused to take a drug test or failed to comply with policy, she should have had an opportunity
to “recant”, that Ms. Little lied about giving her oral notice of the drug test. And she presses the
issue that, it does not seem fair that, because she did not fail a drug test, she should be treated as
though she had by being terminated.
Touching on this final point first, there is good reason that refusal or failure to take a test is
treated similarly to failing a test. Employees who refuse or fail to take a drug test can prompt others
to act similarly, and that would undermine the Sheriff’s Office’s entire drug-free workplace policy.
See Pollock v. Department of Navy, 369 Fed.Appx. 133, 138 (Fed. Cir. 2010). That’s why failure
to show up is as bad in its own way as failing a test.
Next, plaintiff seems to argue that, technically, she didn’t “refus[e] to submit to testing” or
“fail[] to cooperate”, she just “made a mistake” and didn’t show up and, so, she could not have been
terminated under the drug testing policy. (Plaintiff’s Statement of Facts, ¶¶ 1, 36). But the fact is,
she had notice of the drug test and chose not go. That’s refusing to cooperate. A “pocket veto” is
22

still a veto.
Changing course, plaintiff looks to the text of General Order 3.27 which states that, if an
employee refuses to report to drug testing, the assistant executive director or external operations or
their designate must order the employee to report in front of an IAD investigator and union steward.
(Defendants’ Ex. Q, at B.5). Plaintiff complains that no one – in this case it seems that the designate
would have been Ms. Tate – followed this rule. But, as the defendants point out, this argument is
off target for two reason. One, the rule plaintiff cites applies to random drug testing, not the
mandatory testing required after extended absences for medical reasons. And, two, plaintiff did not
tell anyone she was refusing to take the test, she simply never showed up. Even if the procedure set
out in 3.27(B) did apply to mandatory testing, it covers a situation where the employee says she
won’t be taking the drug test. Clearly, it is inapplicable to plaintiff’s situation. Plaintiff’s reliance
on Mr. Fitzgerald testifying that if plaintiff had refused to take the test under 3.27 she would have
been allowed to recant (plaintiff’s Statement of Facts, ¶ 13) is also unavailing. Again, General Order
3.27(B) does not apply because plaintiff simply ignored the notice to appear for testing, went home,
and never showed up. Mr. Fitzgerald was not testifying that this procedure applied; he was being
led down a hypothetical path by plaintiff’s counsel. (Plaintiff’ Statement of Facts, Ex. B, at 3).9
Then there is Ms. Little. Plaintiff does not have good things to say about the characters in
her termination play, but she reserves her worst for Ms. Little. As plaintiff sees it, Ms. Little was
out to get her, orchestrating a “witch hunt,” and lying throughout the proceedings to achieve her
ends. This is an argument that goes nowhere given the extensive process plaintiff received in this

9

The testimony plaintiff is referring to did not occur at any of the proceedings she attacks in her
lawsuit, but at her unemployment benefits hearing some months after the final arbitration proceeding on her
termination.

23

case. As plaintiff grudgingly admits, “everyone looked at [Ms. Little] as a credible witness . . . .”
(Plaintiff’s Memorandum of law, at 2). Two separate reviewers, one an independent arbitrator,
found Ms. Little credible. Second of all, as noted above, it’s difficult to follow the path that plaintiff
cites to show Ms. Little lied to the conclusion that she did, and even more difficult to see how the
point plaintiff claims she lied about had or would have had any affect on the final result in plaintiff’s
post-termination proceedings.
Plaintiff first claims Ms. Little was not sure if she “was off work for 15 days or more than
15 days.” (Plaintiff’s Memorandum of Law, at 2). But whether it was 15 days or more than 15 is
of no consequence, as the rule applies to “an absence of 15 days or more.” See supra, at 3;
(Defendants’ Ex. K, at 0305). In other words, there is not a disputed material issue of fact. Second,
plaintiff provides no citation to any part of the record where Ms. Little was “confused” about
whether plaintiff had been off 15 days or more that 15 days. (Plaintiff’s Memorandum of Law, at
2, 3). She says only that she “has her Arbitration Transcript where . . . in the beginning she say I was
off work for 15 days but later she changes it to more than 15 days.” (Plaintiff’s Memorandum of
Law, at 3). Without proper citation, see Bay Area Business Council, Inc., 423 F.3d at 633; Ammons
v. Aramark Unif. Servs., 368 F.3d 809, 817-18 (7th Cir. 2004), the only testimony we can find on this
topic is at plaintiff’s exhibit B, at 25, where Ms. Little says that plaintiff had been “off for a set
amount of time . . . .” It may well be, that somewhere in the record, or in plaintiff’s recollection of
the record, Ms. Little used the phrases “15 days” and “more than 15 days” interchangeably –
defendants do at one point [Dkt. # 82, ¶¶ 10, 26), but, again, given the wording of the rule, it makes
no difference and is so slight an error that it could hardly be said to detract form one’s credibility.
Plaintiff’s other basis for attacking Ms. Little’s credibility was addressed supra at 5, n.5. The
24

fact that she might have provided a bit more detail in her affidavit – if it can even be said that she
did – than she did in her hearing testimony is of no consequence here. Cf. Bell v. Prefix, Inc., 321
Fed.Appx. 423, 427 (6th Cir. 2009)(“While the affidavits are more detailed than the deposition
testimony on many points, they merely expand on areas that were left open or were underdeveloped
in the deposition. Therefore, the affidavits were proper and we consider them.”); Bass v. City of
Sioux Falls, 232 F.3d 615, 618 (8th Cir. 1999)(“The fact that [individual’s] deposition testimony
does not identify a specific time or date . . . concerning the grievance does not render his subsequent
[more detailed] affidavit testimony inconsistent or revised.’).
Clearly, the plaintiff has failed to establish that there is a genuine issue of material fact that
precludes summary judgment in favor of the defendants. She has not shown that she suffered any
deprivation of her right to due process either pre- or post-termination. All she has shown is that she
chose to ignore a notice that she had to report for mandatory drug testing and failed to show up. She
calls this a mistake that she feels she ought not to have been fired for. She seems to confuse her
general sense of what seems fair to her with a violation of her due process rights. But the two are
not one and the same. People are terminated, properly so, for mistakes all the time, and that does
not equate to their constitutional rights being violated. One can certainly understand (and perhaps
even sympathize with) the plaintiff’s desire to turn the clock back to just before she pocketed her
drug test notice and failed to appear within the hour for the mandatory drug test. But that desire isn’t
enough to stave off summary judgment.
3.
Plaintiff also charges the individual defendants with violating due process. But an individual
cannot be held personally liable under 42 U.S.C. §1983 unless he or she caused or participated in
25

a constitutional deprivation. Hafer v. Melo, 502 U.S. 21, 25 (1991); Kelly v. Municipal Courts of
Marion County, Ind., 97 F.3d 902, 909 (7th Cir. 1996). As plaintiff cannot show she was deprived
of due process, summary judgment is appropriate in favor of the individual defendants as well.

CONCLUSION
In the final analysis, plaintiff’s argument is really no more than that she is telling the truth,
Ms. Little lied, and it is unfair that she lost her job. But “procedural due process” neither
“guarantee[s] a particular result,” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1295 (11th
Cir. 2005), nor does it guarantee that there will be no incorrect results. Collins v. City of Harker
Heights, 503 U.S. 115, 129 (1992). The defendants’ motion for summary judgment [Dkt. # 81] is
GRANTED.

By:_____________________________________
UNITED STATES MAGISTRATE JUDGE

DATE: May 5, 2015

26