Grady II v. Board of Trustees of Northern Illinois University et al
Filing
28
ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 1/16/2015:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION
DONALD GRADY II,
Plaintiff,
Case No.
14 C 1245
v.
Judge Harry D. Leinenweber
BOARD OF TRUSTEES OF NORTHERN
ILLINOIS UNIVERSITY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
For several years, Plaintiff Donald Grady (“Grady”) served
as
Chief
of
Police
and
Public
Safety
at
Northern
University (hereinafter, “NIU” or the “University”).
Illinois
In 2013,
Grady was fired in the wake of a scandal arising out of the NIU
Police
Department’s
alleged
mishandling
of
a
criminal
sexual
assault case involving an NIU police officer named Andrew Rifkin
(“Rifkin”) and an undergraduate student named K.K. (the Court
will
refer
identity).
Trustees
to
the
victim
by
her
initials
to
protect
her
Grady, who is African American, sued NIU’s Board of
(the
“Board”)
and
a
number
of
other
individuals,
alleging that he was discriminated against on the basis of race,
retaliated against for complaining about racial discrimination
and for investigating corruption within the NIU administration,
and
denied
substantive
and
procedural
connection with his termination.
due
process
rights
in
Grady also asserts claims for
violations of the Illinois State Officials and Employees Ethics
Act
and
the
Illinois
Whistleblower
Act.
In
two
separate
Motions, the Defendants now seek to dismiss the claims against
them.
I.
In
November
2011,
BACKGROUND
K.K.
filed
a
complaint
with
the
NIU
Police Department alleging that Rifkin had raped her at his offcampus apartment.
When confronted with the complaint, Rifkin
admitted to having sexual relations with K.K., but insisted that
the encounter had been consensual.
The NIU Police Department
referred
County
the
matter
to
the
DeKalb
State’s
Attorney’s
Office for investigation and Rifkin thereafter was indicted on
criminal sexual assault charges.
In the subsequent weeks, two female NIU undergraduates came
to Grady’s office to voice support for Rifkin.
students
had
not
been
present
when
the
Although both
incident
with
K.K.
occurred, they nonetheless informed Grady that they believed the
encounter had been consensual.
agreed
to
Department
After
submit
Lieutenant
meeting
written
formal
with
statements
in
written
Kartik
both
At Grady’s urging, the students
Ramakrishnan
students,
Rifkin’s
statements
NIU
Police
(“Ramakrishnan”).
Ramakrishnan
personnel
- 2 -
to
file,
placed
but
their
did
not
complete
a
Department’s
police
report
criminal
or
add
investigation
the
statements
file
because
he
to
the
believed
that the students’ accounts did not refute K.K.’s allegations.
Almost a year later, Rifkin’s attorneys filed a motion in
his criminal case seeking to dismiss the charges against him on
the basis that the NIU Police Department had withheld the two
students’ statements in violation of Brady v. Maryland, 373 U.S.
83
(1963),
which
requires
that
certain
exculpatory
evidence
“material either to guilt or to punishment” and known to the
prosecution be tendered to a criminal defendant prior to trial.
Upon learning of Rifkin’s motion, Grady questioned Ramakrishnan
about
what
Ramakrishnan
statements
had
happened
admitted
and
to
neglected
to
the
that
Grady
to
students’
he
provide
had
them
to
statements.
misfiled
the
the
State’s
Attorney’s Office for possible disclosure.
On November 2, 2012, Judge Robbin Stuckert, before whom
Rifkin’s criminal case was pending, held a hearing on the Brady
motion.
that
At the conclusion of the hearing, Judge Stuckert ruled
Ramakrishnan
had
withheld
the
statements
intentionally.
Judge Stuckert ultimately denied Rifkin’s Brady motion, however,
and he made no finding as to whether Grady had any role in the
Police Department’s failure to disclose.
Three
Attorney’s
days
Office
later,
issued
on
November
a
5,
press
release
- 3 -
2012,
the
calling
State’s
for
an
investigation into what had occurred and asserting that the NIU
Police
Department’s
actions
had
“jeopardized
and the police department’s credibility.”
NIU
representative
stated
publicly
that
Rifkin’s
defense
At the same time, an
the
Illinois
State
Police would be asked to assist in the review and completion of
that investigation.
On November 9, 2012, Grady’s immediate supervisor, Eddie
Williams (“Williams”), NIU’s Executive Vice President and Chief
of Operations, was relieved of his authority over the NIU Police
Department, and F. William Nicklas (“Nicklas”) was appointed in
his place.
At 7:30 p.m. that evening, Nicklas telephoned Grady
to arrange a meeting the following morning.
However, he did not
disclose to Grady the purpose of that meeting.
At the scheduled meeting, Nicklas informed Grady that he
was
being
immediately.
placed
on
paid
Thereafter,
administrative
Nicklas
issued
leave
a
effective
news
release
announcing that Grady had been suspended “pending finalization
of charges and disciplinary actions” against him.
Grady also
received a letter confirming his suspension, in which Nicklas
stated that NIU intended to initiate proceedings to terminate
him for “just cause” based upon the Police Department’s failure
to
make
mandatory
Brady
disclosures
Rifkin prosecution.
- 4 -
in
connection
with
the
On November 17, 2012, the Chicago Tribune reported on an
interview
with
NIU’s
President,
Defendant
(“Peters”), about Grady’s suspension.
John
Peters
Peters stated that Grady
had been banned from campus because the University could not
“under
any
circumstances
tolerate
such
clear
contracts, authority, and responsibility.”
breaches
of
The Tribune story
added that the NIU Office of Public Relations had told the paper
that Grady was “not expected to return to the job.”
On November 28, 2012, Grady received a written statement
listing the charges that NIU was “considering” bringing against
him.
These
Grady’s
charges
misconduct
in
consisted
relation
of
to
general
his
assertions
supervision
of
about
others
regarding the handling of the two students’ statements and his
deletion of various files from his work computer prior to being
placed on leave.
support
of
condoned
the
The letter, however, cited no evidence in
University’s
Ramakrishnan’s
position
failure
to
that
Grady
disclose
knew
the
of
or
students’
statements.
On January 9, 2013, Nicklas sent Grady a further letter
stating that NIU intended to initiate action to terminate his
employment
based
upon
the
November
28,
2012
statement
of
charges.
The letter informed Grady that he could request an
“informal
pre-termination
meeting”
- 5 -
with
Nicklas
and
that
he
would be permitted to present any information he believed would
be relevant to the decision-making process.
After requesting a pre-termination meeting, Grady sent a
letter to Nicklas objecting to the lack of specificity in NIU’s
charges and the University’s failure to respond to his previous
requests for clarification.
In his letter, Grady further stated
that he believed that NIU’s actions were “not related to some
fault or impropriety on [his] part, but rather [were] based on
unjust, illicit, discriminatory, and/or retaliatory considerations.”
Grady’s
2013.
At
pre-termination
that
“substantially
disciplinary
meeting,
completed
actions
meeting
was
Nicklas
its
based
told
review”
upon
held
its
on
Grady
and
February
that
was
NIU
1,
had
considering
preliminary
findings.
Nicklas assured Grady that he would be given an opportunity to
respond to NIU’s charges before any disciplinary action would be
taken.
However,
when
Grady
asked
Nicklas
to
describe
the
specific evidence upon which the charges against him were based,
Nicklas refused to do so.
Three weeks later, on February 19, 2013, Nicklas sent Grady
a letter stating that his employment at NIU had been terminated.
The stated bases for Grady’s termination were his failure to
“appropriately
supervise”
the
NIU
Police
Department
and
the
Department’s mishandling of Brady material in connection with
- 6 -
Rifkin’s criminal prosecution.
In Grady’s termination letter,
Nicklas stated:
I do not believe there was merely a mistaken
withholding of evidence on the part of the
Department in the Rifkin case.
Moreover, I
do not find credible your claim that you
were
not
involved
in
the
purposeful
withholding of exculpatory evidence. . . . I
find that you knew, or should have known,
about all or most of this conduct.
I
further find that it is more probable than
not that you either ordered, encouraged,
and/or condoned much or all of it, or that
you
were
indifferent
to
upholding
the
regular procedures of the Department in this
case, or that you were negligent in your
supervisory duties.
After
engaging
unsuccessfully
in
NIU’s
formal
grievance
process, Grady filed this lawsuit seeking, among other things,
an order of reinstatement, back and front wages, damages based
upon an alleged loss of earning capacity, and punitive damages.
Grady contends that there was no evidence that he had anything
to
do
with
Ramakrishnan’s
mishandling
of
the
students’
statements and that his termination instead was the product of a
“discriminatory and retaliatory agenda” on the part of Nicklas
and other NIU officials.
Grady further asserts that he was
retaliated against for complaining about NIU’s unlawful racial
discrimination towards him in connection with the University’s
termination
internal
proceedings
corruption
and
for
allegations
senior administrators.
pursuing
that
certain
implicated
unrelated
several
NIU
To that end, Grady argues that NIU’s
- 7 -
stated reason for firing him was “nothing more than a convenient
pretext
for
a
draconian
and
preordained
infected by unlawful discriminatory animus.
termination
process”
(Pl.’s Mem. in Opp.
to Def.’s Mot. to Dismiss (“Pl.’s Opp. Mem.”) at 2, ECF No. 21).
II.
LEGAL STANDARD
A motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) challenges the legal
sufficiency of a complaint.
Hallinan v. Fraternal Order of Chi.
Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).
A complaint
must provide a short and plain statement of the claim showing
that
the
plaintiff
P. 8(a)(2).
is
entitled
Essentially,
the
to
relief.
complaint
FED.
must
R.
CIV.
provide
the
defendant with “fair notice” of the claim and its basis.
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Bell
Thus, to
survive a motion to dismiss, a complaint must contain sufficient
factual allegations that, if accepted as true, state a claim
that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
III.
ANALYSIS
The Defendants in this case have divided themselves into
two
groups,
each
of
which
now
separately
seeks
dismissal
of
various claims pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
Defendants
The first group is comprised of the Board and
Nicklas,
Peters,
Steven
- 8 -
Cunningham
(“Cunningham”),
and Jerry D. Blakemore (“Blakemore”), all senior administrators
at
NIU
(hereinafter,
Defendants”).
collectively,
the
“Administration
The second group of Defendants is comprised of
several NIU employees who served as members of the committee
that
denied
Grady’s
(hereinafter,
request
collectively,
for
the
a
grievance
“Grievance
hearing
Committee
Defendants”).
A.
The Administration Defendants
1.
Cunningham and Blakemore
As an initial matter, Cunningham and Blakemore separately
seek dismissal of the Complaint as it relates to them on the
basis that Grady’s allegations fail to disclose facts sufficient
to demonstrate that they had any part in the decision to suspend
or terminate his employment at NIU.
At
the
Cunningham
time
of
occupied
Administration
and
the
the
Human
events
Office
Resources;
President and General Counsel.
that
Cunningham
and
alleged
of
in
Vice
Blakemore
the
Complaint,
President
served
as
for
Vice
Although the Complaint asserts
Blakemore
“participated”
in
NIU’s
termination decision, it provides no detail as to how either was
involved.
Grady appears to be of the view that no elaboration
is necessary, contending instead that Cunningham and Blakemore’s
participation simply can be assumed based upon their job titles
and the fact that both Defendants had a motive to fire him
- 9 -
because he recently had named them as the targets of an internal
corruption investigation.
Any inference that might be drawn in
that regard, however, would be wholly speculative.
While one
could surmise from the Complaint that Cunningham and Blakemore
possibly were involved in the decision to fire Grady because
both
had
the
ability
and
motive
to
direct
his
termination,
allegations that are “merely consistent” with the potential for
liability cannot alone form the basis of a plausible claim to
relief.
Iqbal, 556 U.S. at 678 (quotation marks and citation
omitted).
Because
the
Complaint
fails
to
reveal
anything
about
Cunningham and Blakemore’s actual conduct beyond the unsupported
conclusion that they “participated” in Grady’s termination, the
claims asserted against both Defendants must be dismissed.
2.
The Board, Nicklas, & Peters
The remaining Administration Defendants challenge several
aspects of the Complaint.
They first contend that they cannot
be
of
held
liable
for
any
the
wrongdoing
alleged
in
the
Complaint because they are protected from civil liability under
the
doctrine
of
qualified
immunity.
Qualified
immunity
insulates state actors from civil lawsuits “insofar as their
conduct
does
not
violate
clearly
established
statutory
or
constitutional rights of which a reasonable person would have
known.”
Sullivan
v.
Ramierez,
360
- 10 -
F.3d
692,
697
(7th
Cir.
2004).
Because that inquiry ordinarily requires analysis of the
evidence
specific
to
the
case
at
hand,
issues
of
qualified
immunity generally are addressed at the summary judgment rather
than the pleading stage.
651 (7th Cir. 2001).
not
required
anticipate
Tamayo
Although
Moreover, a discrimination plaintiff “is
initially
and
v.
Alvarado v. Litscher, 267 F.3d 648,
to
plead
a
defense
overcome
Blagojevich,
dismissal
526
based
factual
of
allegations
qualified
F.3d
1074,
1090
upon
qualified
(7th
that
immunity.”
Cir.
immunity
2008).
may
be
appropriate in limited circumstances where it is obvious that
the plaintiff seeks relief based upon the violation of “a broad
constitutional right that had not been articulated at the time
the violation is alleged to have occurred,” Jacobs v. City of
Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000), the allegations
in this case concern racial discrimination and retaliation, the
applicable
constitutional
standards
for
which
were
well-
established at the time of the events alleged in the Complaint.
See,
e.g.,
Auriemma
v.
Rice,
910
F.2d
1449,
1457
(7th
Cir.
1990); Jacobeit v. Rich Twp. High Sch. Dist. 227, 673 F.Supp.2d
653,
661
Defendants
(N.D.
have
Ill.
not
2009).
demonstrated
Because
how
the
“their
Administration
actions
could
reasonably have been thought consistent with the rights they are
alleged to have violated,” Anderson v. Creighton, 483 U.S. 635,
- 11 -
638 (1987), the claims against them may not be dispensed with on
immunity grounds at this stage.
The Administration Defendants’ next quibble is with Grady’s
42
U.S.C.
§ 1981
(“Section
1981”)
equal
protection/race
discrimination and retaliation claims, which are set forth in
Counts III and IV, respectively.
contend
that
those
counts
should
The Administration Defendants
be
dismissed
because
Grady
failed to invoke 42 U.S.C. § 1983 (“Section 1983”), which is the
exclusive remedy for Section 1981 violations committed by state
actors.
See, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701
(1989).
Although the Administration Defendants are correct that
recovery under Section 1981 is available only pursuant to the
general
procedural
mechanism
created
by
Section
1983,
the
Complaint states explicitly that Counts III and IV are “brought
through 42 U.S.C. § 1983.”
(Am. Compl. at 31-32, ECF No. 6).
That is sufficient under federal pleading standards to survive a
motion to dismiss.
Indeed, it is more than is required.
As the
Supreme Court emphasized quite recently, the Federal Rules of
Civil Procedure “do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted.”
Johnson v. City of Shelby, Miss., 574 U.S. ---, 135
S.Ct.
346
346,
(2014)(per
curiam).
In
Johnson,
the
Court
summarily reversed a decision of the Court of Appeals for the
Fifth
Circuit,
which
had
held
- 12 -
inadequate
a
civil
rights
complaint
against
state
actors
Section 1983 specifically.
need
not
contain
pleadings’”
and
plaintiffs
a
that
seeking
that
failed
to
mention
The Court stressed that a complaint
“punctiliously
“no
stated
heightened
damages
for
‘theory
pleading
violations
of
rule
of
the
requires
constitutional
rights to invoke § 1983 expressly in order to state a claim.”
Id. at 347.
The
Administration
Defendants
further
contend
that
Count III is inadequate because Grady failed to allege facts
suggesting
that
he
was
treated
less
favorably
than
similarly situated non-African American individuals.
is
true
that
evidence
of
a
plaintiff
who
discrimination
lacks
may
direct
seek
to
or
other
While it
circumstantial
establish
his
case
“indirectly” through the evidentiary framework set forth by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
801-03
(1973)
–
one
aspect
of
which
requires
proof
that
similarly situated employees received more favorable treatment,
see, Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 511
(7th
Cir.
2012)
application
at
the
–
the
McDonnell
pleading
stage.
Douglas
Carlson
Inc., 758 F.3d 819, 827 (7th Cir. 2014).
standard
v.
CSX
has
no
Transp.,
Thus, a plaintiff “is
not required to include allegations [in his complaint] – such as
the existence of a similarly situated comparator – that would
establish
a
prima
facie
case
of
- 13 -
discrimination
under
the
‘indirect’ method of proof.”
Id.
Rather, the “argument that
[Grady] has not identified any similarly situated, non-African
American,
light-skinned
employees
who
were
treated
more
favorably is an issue more appropriately addressed in a summary
judgment
motion
than
a
motion
to
dismiss.”
Howell
v.
Rush
Copley Med. Grp. NFP, No. 11 C 2689, 2012 WL 832830, at *5 (N.D.
Ill. Mar. 12, 2012).
The
Seventh
requirements
“minimal.”
motion
to
employer
for
Circuit
pleading
repeatedly
a
case
of
has
race
held
instituted
the
a
complaint
“need
(specified)
the
discrimination
See, e.g., Tamayo, 526 F.3d at 1084.
dismiss,
that
only
adverse
are
To survive a
aver
that
employment
the
action
against the plaintiff on the basis of his race.”
Lavalais v.
Vill.
Cir.
of
Melrose
Park,
734
F.3d
629,
633
(parenthetical in original, brackets omitted).
in this case plainly meet that standard.
(7th
2013)
The allegations
The Complaint asserts
that Grady was fired because he is African American, that his
alleged role in the mishandling of the Rifkin witness statements
was a pretext for the true racial motivations underlying his
termination, and that, even if he somehow was responsible for
the NIU Police Department’s failure to disclose Brady material,
he was treated worse than other Caucasian employees who were
involved in more serious misconduct.
Defendants
remain
adamant
that
- 14 -
While the Administration
Grady’s
termination
was
“completely unrelated to race or any other protected factor,”
(Admin. Def.’s’ Reply in Supp. of Mot. to Dismiss at 6, ECF
No. 23), Grady’s allegations are plausible enough to state a
claim.
The
which
Administration
asserts
a
claim
Defendants
for
denial
next
of
argue
due
that
Count
process
under
V,
the
Fourteenth Amendment of the United States Constitution, should
be
dismissed
because
(1)
Grady
was
not
entitled
procedural
protections
in
connection
with
termination
suspension,
and
(2)
was
Grady
process prior to his termination.
point,
although
being
placed
on
his
to
any
paid
afforded
pre-
adequate
With regard to the first
paid
administrative
leave
ordinarily “does not trigger due-process protections unless the
suspension imposes a substantial indirect economic effect on the
plaintiff,” Palka v. Shelton, 623 F.3d 447, 452 (7th Cir. 2010),
Grady’s Complaint makes the case that he indeed suffered from
various
indirect
effects.
To
wit,
Grady
alleges
that
his
suspension “had a devastating impact on [his] reputation and
career and rendered him unemployable as a sworn law enforcement
officer at any level.”
on
to
assert
that
(Am. Compl. ¶ 102).
the
Defendants’
The Complaint goes
“unlawful
conduct,”
which
includes his suspension, caused “loss of employment, loss of
past and future income and benefits, loss of earning capacity,
emotional
distress,
loss
of
reputation,
- 15 -
and
humiliation
and
embarrassment.”
(See, id. ¶¶ 29, 30, 31, 32, 35, 38, 40, & 41).
As the Seventh Circuit has recognized, an employment action that
“impedes future job opportunities or has other indirect effects
on
future
property.”
income
can
inflict
an
actionable
deprivation
of
Head v. Chicago Sch. Reform Bd. of Trs., 225 F.3d
794, 803 (7th Cir. 2000).
While the Administration Defendants
argue that Grady’s claimed damages in that regard arose from his
termination rather than his suspension, proof of any precise
causal link is not required at this early juncture.
See, Keel
v. Vill. of Harvey, No. 10 C 6467, 2010 WL 310768, at *2 (N.D.
Ill.
Jan.
21,
2010).
It
is
enough
for
now
that
Grady
has
alleged that his suspension caused him to suffer significant
indirect economic effects.
As for the Administration Defendants’ contention that NIU’s
pre-termination procedural protections were sufficient, Grady’s
Complaint makes clear that the limited process he did receive
fell far below the standards required by law.
Public employees
who are, by virtue of contract or other legal authority, subject
to discharge only for “just cause,” must be afforded certain
minimum
pre-termination
safeguards,
even
when
there
is
an
opportunity for a more comprehensive post-termination hearing.
Baird v. Bd. of Ed. for Warren Cmty. Unit Sch. Dist. No. 205,
389 F.3d 685, 690-91 (7th Cir. 2004).
These pre-termination
safeguards include “(1) oral or written notice of the charges;
- 16 -
(2)
an
explanation
of
the
employer’s
evidence;
and
(3)
an
opportunity for the employee to tell his or her side of the
story.”
Head, 225 F.3d at 804.
While NIU did send Grady a letter purporting to set forth a
statement
of
the
charges
against
him,
that
communication
consisted only of “general assertions” and did not describe any
of the University’s supporting evidence.
Subsequent
communications
similarly
(Am. Compl. ¶¶ 78-80).
revealed
little
about
evidence upon which the charges against Grady were based.
¶ 81).
Although
Nicklas
agreed
to
hold
a
the
(Id.
pre-termination
“hearing” at Grady’s request, he did nothing at that conference
other than “recite[] the charges against [Grady] and list[] a
series of documents that would be made available . . . after the
meeting.”
(Id. ¶ 89).
discussed;
information,
nor,
was
The contents of those documents were not
despite
Grady
his
told
repeated
how
they
requests
or
any
for
other
further
evidence
related to the charges against him.
At some point prior to his termination, Grady was entitled
to an explanation of the University’s evidence.
Merely alluding
without specifics to the various “types” of adverse evidence
upon which NIU intended to rely was not sufficient.
In the end,
NIU never laid out its full case against Grady until after it
already had rendered a final decision.
- 17 -
(Am. Compl. ¶ 94).
Compounding that problem is the fact that Grady did not
receive a post-termination hearing, which NIU was required to
provide under law.
Gilbert v. Homar, 520 U.S. 924, 929 (1997);
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 545-46 (1985);
Swank v. Smart, 898 F.2d 1247, 1256 (7th Cir. 1990).
Upon
filing a grievance in accordance with NIU’s internal policies,
Grady’s request for a hearing was denied without explanation
despite his renewed complaints of unlawful discrimination and
retaliation.
grievance
(Am.
Compl.
process
and
¶ 113).
left
That
Grady
denial
without
ended
a
the
meaningful
opportunity to address the University’s evidence or respond to
the charges against him.
In view of these allegations, Grady
has stated a claim for a violation of his due process rights.
The
Administration
Defendants
next
take
issue
with
the
separate aspect of Grady’s due process claim that seeks damages
based upon his alleged loss of a liberty interest in future
employment in the law enforcement field.
Where, as here, “an
employee claims that a government employer has infringed his
liberty to pursue the occupation of his choice, the employee
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
opportunities as a result of public disclosure.”
Vallas,
256
F.3d
661,
669-70
(7th
- 18 -
Cir.
2001).
employment
Townsend v.
Grady’s
allegations satisfy all three of these elements.
According to
the Complaint, the Administration Defendants pursued a highly
public
termination
serious
personal
process,
and
in
which
supervisory
Grady
misconduct.
was
accused
Upon
of
Grady’s
suspension, Nicklas issued a press release that blamed Grady for
his direct involvement in the withholding of evidence in the
Rifkin case.
That release, as well as a letter on the same
topic that was sent to Grady directly, received “wide publicity
and adverse editorial comment” in the media.
NIU’s
final
finding
termination
that
Grady
had
letter,
in
“ordered,
which
(Am. Compl. ¶ 68).
Nicklas
encouraged,
stated
and/or
his
condoned
much or all of” the misconduct in the Rifkin case and that he
was
“indifferent
to
upholding
the
regular
procedures
of
the
Department . . . or that [he was] negligent in [his] supervisory
duties,”
also
received
broad
press
coverage.
(Id.
¶ 100).
Grady asserts that NIU’s actions thus had the effect of ruining
his reputation to the extent that he no longer is capable of
finding work as a law enforcement officer “at any level.”
(Id.
¶ 102).
The Administration Defendants insist that they cannot be
held
responsible
because
had
the
been
for
Grady’s
circumstances
made
public
by
diminished
surrounding
virtue
of
employment
his
a
prospects
termination
press
release
already
issued
previously by the DeKalb County State’s Attorney’s Office and
- 19 -
Judge Stuckert’s findings on the record in Rifkin’s criminal
case.
However,
it
was
Ramakrishnan
and
the
NIU
Police
Department in general – not Grady – that were blamed by Judge
Stuckert and the State’s Attorney’s Office for the alleged Brady
violations in the Rifkin case.
of
naming
Grady
NIU alone took the further step
specifically,
and
it
was
the
University’s
decision to publicize his termination that likely inflicted the
most damage on his ability to find future employment.
See,
Townsend, 256 F.3d at 670 (“[A]t the heart of every claim that
an employer has infringed an employee’s liberty of occupation,
is a charge that the ‘circumstances of the discharge, at least
if they were publically stated, had the effect of blacklisting
the
employee
from
employment
in
comparable
jobs.’”)(quoting
Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir. 1987)).
To that
end, Grady has stated a claim based upon the deprivation of a
liberty interest in future employment in law enforcement.
Finally,
the
Administration
Defendants
argue
that
Count VIII, which asserts retaliation claims under the Illinois
Whistleblower
Act,
should
be
dismissed
because
individual
defendants cannot be held liable under the Act unless they also
are
the
plaintiff’s
“employer,”
Defendants contend they were not.
which
the
Administration
Grady has agreed to withdraw
Count VIII voluntarily, (see, Pl.’s Opp. Mem. at 3 n.1), so
- 20 -
there
is
no
need
to
address
the
merits
of
this
argument.
Accordingly, Count VIII is dismissed as to all Defendants.
B.
The Grievance Committee Defendants
The Grievance Committee Defendants have moved to dismiss
Grady’s procedural due process claim (Count V) – the only claim
asserted against them – on grounds that they are protected by
absolute
judicial
immunity
with
relating to Grady’s termination.
respect
to
their
decisions
As its name implies, absolute
judicial immunity is a form of protection ordinarily available
only to judges.
Nonetheless, absolute “quasi-judicial” immunity
has been extended to non-judges in two limited circumstances:
first, where a non-judicial officer acts in a judicial capacity
or
engages
in
quasi-judicial
conduct,
and
second,
where
a
subordinate undertakes certain administrative functions at the
express direction of a judicial officer.
F.3d
279,
Defendants
286-87
do
not
(7th
Cir.
contend
2004).
that
The
they
authority of any judicial officer.
Snyder v. Nolen, 380
Grievance
acted
Committee
pursuant
to
the
Rather, they argue that the
resolution of Grady’s grievance was a quasi-judicial function
and that their role in the process was equivalent to that of a
judicial decisionmaker.
In
assessing
whether
conduct
is
quasi-judicial,
courts
apply a “functional approach,” which “look[s] to the nature of
the
function
performed,
not
the
- 21 -
identity
of
the
actor
who
performed it.”
Heyde v. Pittenger, 633 F.3d 512, 517 (7th Cir.
2011)(quotation
marks
and
citations
omitted).
Six
factors,
initially set forth by the Supreme Court in Butz v. Economou,
438 U.S. 478 (1978), are central to that determination:
(a) the need to assure that the individual
can perform his functions without harassment
or
intimidation;
(b)
the
presence
of
safeguards that reduce the need for private
damages actions as a means of controlling
unconstitutional
conduct;
(c)
insulation
from political influence; (d) the importance
of precedent; (e) the adversary nature of
the process; and (f) the correctability of
error on appeal.
Cleavinger v. Saxner, 474 U.S. 193, 202 (1985)(citing Butz, 438
U.S. at 512).
Before turning to these factors and the particulars of this
case, it should be noted that the Seventh Circuit has concluded
that it is “most unlikely” that an NIU hearing official would be
entitled to absolute immunity.
224 (7th Cir. 1993).
Osteen v. Henley, 13 F.3d 221,
Although the court did not rule either way
on the issue, a review of related precedent is instructive.
In Wood v. Strickland, 420 U.S. 308 (1975), the Supreme
Court considered whether school board members who voted to expel
a
student
Court
were
reasoned
entitled
that,
to
even
absolute
though
judicial
the
board
immunity.
The
members
were
“adjudicators” and “judge[d] whether there [were] violations of
school regulations,” affording them absolute immunity was not
- 22 -
appropriate because doing so “would not sufficiently increase
the ability of school officials to exercise their discretion in
a
forthright
students
manner
subjected
deprivations.”
to
warrant
to
the
absence
intentional
or
of
a
otherwise
remedy
for
inexcusable
Wood, 420 U.S. at 319-20.
Applying this reasoning, the Fifth Circuit, in Harris v.
Victoria
Independent
School
District,
declined
to
extend
absolute immunity to school board members who claimed that their
review of a teacher’s grievance was quasi-judicial in nature.
Harris v. Victoria Independent School District, 168 F.3d 216,
224-25 (5th Cir. 1999).
important
for
school
Although the court noted that it was
board
members
to
be
able
to
render
decisions free from the threat of incurring personal liability,
it found that qualified immunity afforded sufficient protections
in that regard.
Circuits
cases.
have
Id. at 225.
arrived
at
The Third, Sixth, and Eleventh
similar
conclusions
in
comparable
See, Skehan v. Bd. of Trs. of Bloomsburg State Coll.,
538 F.2d 53, 60 (3d Cir. 1976)(en banc)(finding no appreciable
difference
between
the
school
board
members
in
Wood
who
adjudicated a student discharge and state college officials who
were tasked with adjudicating a faculty termination); Purisch v.
Tenn. Technological Univ., 76 F.3d 1414, 1422 (6th Cir. 1996)
(denying absolute immunity to a university grievance committee);
Stewart v. Baldwin Cnty. Bd. of Educ., 908 F.2d 1499, 1508 (11th
- 23 -
Cir. 1990)(denying absolute immunity to school board officials
who made the final decision to discharge a school maintenance
department employee).
Application of the six Butz factors to the facts as alleged
in
this
case
yields
no
different
result.
First,
there
is
nothing to suggest that the Grievance Committee Defendants are
in need of any protection beyond qualified immunity to insulate
them
from
harassment
or
intimidation.
Second,
there
do
not
appear to have been adequate safeguards in place that would have
assured the Grievance Committee’s compliance with constitutional
requirements.
Indeed, there were “no standards” for ruling on
grievances or determining whether or not to grant a request for
a hearing.
(Am. Compl. ¶ 111).
Third, because the Grievance
Committee Defendants also were University employees, they did
not
have
the
type
of
independence
judicial decisionmakers.
typically
associated
with
See, e.g., Cleavinger, 474 U.S. at
203-04 (finding that prison disciplinary board members who also
served as prison employees and were subordinate to the warden
were
“under
dispute[s]
in
employee[s]”).
obvious
favor
pressure
of
Fourth,
the
there
to
resolve . . . disciplinary
institution
is
no
and
their
indication
fellow
that
the
Grievance Committee placed any weight on precedent or applied
any legal framework at all when evaluating the evidence.
Fifth,
the grievance procedure, as far as Grady was concerned, was not
- 24 -
adversarial.
“any
According to the Complaint, Grady was not allowed
input”
hearing.
into
the
decision
regarding
(Am. Compl. ¶ 111).
his
request
for
a
Although he was permitted to
communicate with the Grievance Committee in writing, he never
received a meaningful opportunity to present his case or respond
to the University’s evidence.
summarily
and
decision.
the
(Id.
Rather, his grievance was denied
Committee
¶ 113).
offered
Sixth,
“no
and
explanation”
finally,
of
was
there
its
no
internal appellate process available by which Grady could have
sought review of the Grievance Committee’s ruling.
Although the
Grievance Committee Defendants point out that Grady could have
challenged
their
certiorari
with
available
in
Illinois
decision
an
most
Illinois
state
Administrative
alternatives.
by
filing
circuit
a
court,
administrative
Review
Law
common
does
law
that
writ
of
recourse
is
actions
not
where
provide
the
other
See, Arroyo v. Chi. Transit Auth., 916 N.E.2d 34,
40 (Ill. App. Ct. 2009).
Thus, the opportunity to file such a
writ does not set the grievance process in this case apart from
any
other
non-judicial
administrative
determinations
in
Illinois.
On balance, the grievance process in this case cannot be
characterized
as
quasi-judicial
in
nature.
The
Grievance
Committee Defendants were not akin to neutral judges and the
proceedings here bore little resemblance to those of a court of
- 25 -
law.
For these reasons, it would be inappropriate to extend the
protections of absolute judicial immunity to the Defendants in
this case.
IV.
CONCLUSION
For the reasons stated herein, the Defendants’ Motions to
Dismiss [ECF Nos. 15, 17] are granted in part and denied in
part.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:1/16/2015
- 26 -
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