Burge et al v. Rogers et al

Filing 108

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 8/6/2015: Defendants' motion for summary judgment 82 is granted. Enter judgment in favor of defendants on Count I. Counts II-VIII are dismissed without prejudice. Terminate civil case. Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RONALD BURGE SR.,
RONALD BURGE JR.,
LEWIS LACEY, and
PAUL GANIER

No. 13 CV 6399
Judge Manish S. Shah

Plaintiffs,
v.
RILEY ROGERS, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiffs, present and former police officers, say they were retaliated against
for issuing a parking ticket to the mayor of Dolton, Illinois. Their complaint alleges
numerous state-law claims against the Village and its leaders, as well as a claim for
violations of procedural due process. Defendants have moved for summary
judgment on the sole federal claim. For the following reasons, the motion is granted.
I.

Legal Standard
Summary judgment is appropriate if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014); Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking

summary judgment has the burden of establishing that there is no genuine dispute
as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
II.

Background
Plaintiffs Ronald Burge Sr., Ronald Burge Jr., Lewis Lacey, and Paul Ganier

are current and former employees of the Dolton police department. Plaintiffs each
claim defendant Riley Rogers—the mayor of Dolton—retaliated against them for the
roles they played in Rogers receiving a parking ticket (though the specifics of that
political intrigue are not relevant to the present motion). The material facts are not
in dispute.
Plaintiff Ronald Burge Sr.
In 2011, Rogers’s predecessor hired Burge Sr. to serve as Dolton’s Deputy
Chief of Police. Burge Sr. was promoted to the position of Acting Chief of Police the
following year. This appointment proved short lived, with Rogers replacing
Burge Sr. immediately after taking office. The new mayor obtained the Board of
Trustees’ advice and consent in hiring the new Chief of Police (defendant John
Franklin), but the mayor did not seek their explicit approval before terminating
Burge Sr.
Burge Sr. obtained each of his positions in the Dolton police department by
means of a mayoral appointment, and not through the competitive process set forth
in the Board of Fire and Police Commissioners Act. See 65 ILCS 5/10-2.1-6(a).

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Plaintiff Ronald Burge Jr.
On March 1, 2012, Burge Jr. became a part-time Dolton police officer.
Franklin terminated Burge Jr. shortly after becoming the new Chief of Police in
May 2013.
Plaintiff Lewis Lacey
In 1998, Lacey was hired as a patrol officer for the Dolton police department.
He became a sergeant in 2003—a promotion he tested for through the Fire and
Police Commission. In 2011 or 2012, Lacey was appointed to the position of
commander, which he did not test for. In 2013, Franklin moved Lacey from
commander back to sergeant.
Plaintiff Paul Ganier
In 2012, Burge Sr. and Lacey assigned Ganier to the traffic division of the
Dolton police department, where he remained for a year and a half. Franklin moved
Ganier to regular patrol on May 3, 2013. Ganier’s salary and pension benefits were
not affected, nor did his position or rank otherwise change.
The Complaint
Plaintiffs filed an eight-count complaint against the Village, the mayor, the
new Chief of Police, and six Village Trustees. Count I alone alleged federal claims—
specifically, violations of substantive and procedural due process, and a violation of
plaintiffs’ rights to equal protection of the laws. Jurisdiction over the state-law
claims is based on 28 U.S.C. § 1367.

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The Trustee defendants moved to dismiss the substantive due process and
equal protection claims under Rule 12(b)(6). [28]. That motion was granted. [59].
Although the non-Trustee defendants did not move to dismiss those two claims—
they answered them instead—the non-Trustee defendants contend the dismissal
applied to them as well. Plaintiffs respond by arguing that (1) the prior order should
not apply to Trustee defendants Robert Pierson and Cathern Bendell because they
are differently situated, and (2) Judge Feinerman got it wrong on both claims.
Plaintiffs’ first position is puzzling, since Pierson and Bendell were two of the six
Trustees to explicitly move to dismiss the claims. See [28] at 1. On the second point,
this is not the appropriate forum in which to seek review of the prior order.
Moreover, Judge Feinerman’s analysis of the allegations in the complaint
demonstrated that the substantive due process and equal protection claims failed in
their own right; not contingent on the situation of any defendant. Engquist v. Ore.
Dep’t of Agric., 553 U.S. 591, 604–05 (2008), bars the class-of-one theory in the
public employment context, and there can be no substantive due process claim
where the right to procedural due process is the more specific source for
constitutional protection for the allegedly wrongful terminations and demotions.
[60] at 2–3. All defendants are entitled to judgment in their favor on the substantive
due process and equal protection claims, for the reasons stated in Judge
Feinerman’s opinion.
Accordingly, the only federal claim to be addressed is the alleged violations of
plaintiffs’ rights to procedural due process. If their motion for summary judgment is

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granted, defendants also seek dismissal of the remaining state-law claims. Finally,
defendants ask for summary judgment on all claims as to Pierson and Bendell.
III.

Analysis
To maintain a claim for a procedural due process violation, a plaintiff must

show he was deprived of a protected property interest. Tom Beu Xiong v. Fischer,
787 F.3d 389, 399 (7th Cir. 2015). “To have a protectable property interest in a
benefit, such as continued employment, a plaintiff must have more than an abstract
need or desire for it and more than a unilateral expectation of it. Instead, a plaintiff
must have a legitimate claim of entitlement to it.” Dibble v. Quinn, –– F.3d ––, 2015
WL 4393536, *3 (7th Cir. July 20, 2015) (quotations omitted). “In general, a public
employee has a legitimate claim of entitlement to continued employment ‘when an
employer’s discretion is clearly limited so that the employee cannot be denied
employment unless specific conditions are met.’” Id. (quoting Colburn v. Trustees of
Indiana Univ., 973 F.2d 581, 589 (7th Cir. 1992)). In other words, a public employee
“generally is required to show that the terms of his employment provide for
termination only ‘for cause’ or otherwise evince ‘mutually explicit understandings’ of
continued employment.” Kvapil v. Chippewa County, 752 F.3d 708, 713 (7th Cir.
2014).
Plaintiffs identify several authorities that purportedly limited the Village’s
discretion to deny them employment. First, plaintiffs cite a section of the Illinois
Board of Fire and Police Commissioners Act concerning the removal of police
officers. See 65 ILCS 5/10-2.1-17. Generally speaking, “no officer or member of the

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. . . police department” may be removed “except for cause.” Id. If the employee to be
removed is an appointed Chief of Police, though, he can be removed by the
appointing authority itself, whether or not “for cause.” Id. Such a termination is
complete once (1) the appointing authority files the reasons for the removal with the
“corporate authorities,” and (2) those authorities approve the termination by a
majority vote. Id.
Defendants say this section does not apply to Burge Sr. at all because he was
not hired by the Dolton Board of Fire and Police Commissioners. Nothing in the
language of the Act, however, suggests its protections are limited in the manner
defendants

propose. Further,

in Szewczyk v. Board of Fire and Police

Commissioners, the Illinois Court of Appeals applied § 10-2.1-17 to just such a
mayorally-appointed Chief of Police. See 2011 IL App (2d) 100321 ¶¶ 27–28.
Defendants also believe the section does not apply to Burge Sr. because
Dolton has exempted Chiefs and Deputy Chiefs from the Commissioners’
jurisdiction. For this point, defendants rely on the Dolton Code, which explicitly
grants the mayor the power to appoint the “Police Chief” and the “Assistant Police
Chief.” [85-2] § 2-7-8(A); see also 65 ILCS 5/10-2.1-4. What defendants do not
explain, though, is why Dolton’s act of granting the mayor the right to appoint these
positions, removes them from the jurisdiction of the Commissioners for all other
purposes as well. Neither the Illinois statute nor the Village Code says anything to
that effect.1 While Dolton could have exempted Chiefs and Deputy Chiefs in this
The Illinois Supreme Court has sanctioned home rule municipalities enacting ordinances
that contradict the Act. See Stryker v. Village of Oak Park, 62 Ill.2d 523, 526–27 (1976).
1

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manner, see, e.g., Grayer v. Welch, 2011 WL 4578373, *5 (N.D. Ill. Sept. 30, 2011)
(“[e]ach . . . appointment [of a lieutenant] shall be exempt from the jurisdiction of
the Police Commission”), Dolton did not do so.
Thus, the Act’s removal provisions applied to Burge Sr. at the time he was
terminated, and the question becomes whether 65 ILCS 5/10-2.1-17 limited the
mayor’s right to terminate Burge Sr. in any substantive way. See Miyler v. Village
of East Galesburg, 512 F.3d 896, 898–99 (7th Cir. 2008). It did not. As a Chief of
Police who was appointed by the mayor, Burge Sr. was not protected by the “for
cause” standard applicable to rank-and-file police officers. See Szewczyk, 2011 IL
App (2d) 100321 ¶¶ 52–58. Instead, Burge Sr. could be terminated simply by the
mayor filing his reasons for the termination with the Village Board, and the Village
Board confirming the termination by a majority vote. 65 ILCS 5/10-2.1-17. Because
these requirements did not limit the mayor’s discretion in any substantive way,
Burge Sr. cannot premise his constitutional claim on that section of the Act. Miyler,
512 F.3d at 898–99.
Burge Jr., Lacey, and Ganier likewise cannot premise a procedural due
process claim on 65 ILCS 5/10-2.1-17, because—at the time of their alleged
deprivations—the Act did not cover either part-time police officers (Burge Jr.) or
officers who were merely moved from one job to another (Lacey and Ganier). See 65
ILCS 5/10-2.1-26; Altman v. Hurst, 734 F.2d 1240, 1242 (7th Cir. 1984).2
Plaintiffs also cite Ordinance 07-406, which governs hiring part-time police officers for
full-time roles. Although the ordinance does create some arguably substantive limitations,
those rules apply only to officers who have already been hired into full-time positions. [93-8]
at 2–3. These limitations do not apply to Burge Jr., who was never hired full-time.

2

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Plaintiffs’ next two purported sources of substantive limitation are (1) a
Dolton ordinance requiring the mayor to get the Village Board’s advice and consent
before terminating any employee, and (2) the Rules and Regulations of Dolton’s
Board of Fire and Police Commissioners. See [1-4] at 2; [1-5] at 3–9. These
authorities fare plaintiffs no better, however, because their requirements are also
non-substantive and thus cannot underlie a property interest. See Miyler, 512 F.3d
at 898–99.3
Finally, plaintiffs argue that a substantive limitation controlled the mayor’s
discretion because defendants all admitted in their answers that plaintiffs “had a
right not to be fired, demoted or otherwise disciplined in violation of public policy or
as a result of arbitrary and capricious action or in violation of law . . . .” As
defendants point out, though, a question of law, such as this, is not susceptible to
judicial admission. See McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 682 (7th Cir.
2002). As a result, defendants responses to Paragraph 4 of had no legal effect.
In sum, there is no genuine question of fact concerning whether plaintiffs had
a legitimate claim of entitlement to continued employment. Summary judgment is
therefore warranted in favor of defendants on Count I. Because no federal claims
remain, the other counts are dismissed without prejudice. See 28 U.S.C.

Although the Rules set forth a definition for “cause” that is substantive in nature, [1-5] at
4, the Rules do not elsewhere use that term to establish a substantive limitation relevant to
this case.
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§ 1367(c)(3); Williams Electronics Games, Inc. v. Garrity, 479 F.3d 904, 906 (7th Cir.
2007).4
IV.

Conclusion
Defendants’ motion for summary judgment [82] is granted. Enter judgment

in favor of defendants on Count I. Counts II–VIII are dismissed without prejudice.
Terminate civil case.

ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: 8/6/15

Defendants’ request that I enter summary judgment on all claims (including the state-law
claims) as to defendants Bendell and Pierson is denied. Defendants’ perfunctory argument
that these defendants had no involvement is insufficiently developed; especially since
plaintiffs have put forth evidence of Bendell’s and Pierson’s knowing involvements in Burge
Sr.’s termination. See [93-11]. In any event, the better course is to dismiss the state law
claims without prejudice. Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999) (“it is
the well-established law of this circuit that the usual practice is to dismiss without
prejudice state supplemental claims whenever all federal claims have been dismissed prior
to trial.”).
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