Kukla v. Village of Antioch

• Decision Date: 06 November 1986
• Docket Number: No. 85 C 7946.,85 C 7946.
• Citation: 647 F. Supp. 799
• Parties: William L. KUKLA and Denise A. DeVore Kukla, Plaintiffs, v. VILLAGE OF ANTIOCH, a municipality, Charles H. Miller, individually and in his official capacity as Chief of Police, Mary Lou Weber, Robert C. Wilton, Donald Amundsen, Ronald Cunningham, and Rod White, each of them individually and in their official capacities as members of the Antioch Village Board of Trustees; and Kenneth M. Clark, in his official capacity as Village Attorney, Defendants.
• Court: U.S. District Court — Northern District of Illinois

647 F. Supp. 799

William L. KUKLA and Denise A. DeVore Kukla, Plaintiffs, v. VILLAGE OF ANTIOCH, a municipality, Charles H. Miller, individually and in his official capacity as Chief of Police, Mary Lou Weber, Robert C. Wilton, Donald Amundsen, Ronald Cunningham, and Rod White, each of them individually and in their official capacities as members of the Antioch Village Board of Trustees; and Kenneth M. Clark, in his official capacity as Village Attorney, Defendants.

No. 85 C 7946.

United States District Court, N.D. Illinois, E.D.

November 6, 1986.

COPYRIGHT MATERIAL OMITTED

Thomas W. Duda, Thomas M. Cannon, Cooper & Cooper, Ltd., Buffalo Grove, Ill., for plaintiffs.

Gregory G. Lawton, Judge & Knight, Ltd., Park Ridge, Ill., for defendants.

MORAN, District Judge.

MEMORANDUM AND ORDER

A male sergeant and a female dispatcher of a village police department were fired for living together. They bring an action alleging that both the fact of and the procedures accompanying their firing infringed their rights to privacy, freedom of association and due process under the United States Constitution. The village and its agents move to dismiss or in the alternative for summary judgment. Because of the particular facts presented here in what is a highly fact-dependent area, the motion for summary judgment is granted in substantial part. Decision on the due process claim is withheld pending further development of the record and briefing from the parties.

FACTS

The police force of the Village of Antioch, Illinois, consists of twelve officers. It is headed by the police chief, followed by a lieutenant, and then two sergeants. All other officers are patrolmen. The department also employs four dispatchers. Plaintiff William Kukla was one of the two sergeants with the department. Plaintiff Denise Kukla was a dispatcher. During the period during which they both worked for the department, they were not husband and wife. The Antioch Board of Trustees terminated them on April 11, 1985, for failure to comply with Police Department Directive No. 72, which reads as follows:

Based upon considerations of public policy and the necessity for military-type discipline and respect, it will be misconduct justifying discharge for employees of different ranks to socialize in situations inimical to the discipline and order of the Department.

Antioch Police Chief Charles Miller promulgated that regulation on August 16, 1984. Its history has some relevance to the instant case. According to Chief Miller's affidavit, in the first half of 1984 Sgt. Kukla was dating a dispatcher named Christine Dick. She made a number of serious errors as a dispatcher, among them sending vehicles to far distant locations when other vehicles were closer. However, no patrol officers had reported those errors to Miller, apparently to avoid offending Sgt. Kukla. Eventually Miller learned of them, and Ms. Dick resigned in July 1984. Chief Miller then issued the directive, intending to prevent a recurrence. Plaintiff Denise Kukla, then Denise DeVore, was hired to replace Ms. Dick. Both William and Denise Kukla were on notice of the directive.

Plaintiffs began dating in October 1984. Their relationship started becoming serious in November. At some point between that time and February 1985 they began living together at Denise's home. The dispute as to the timing depends on one's definition of "living together"; plaintiffs do not dispute that William spent considerable time at Denise's home beginning in November, or that they had a sexual relationship. Chief Miller learned of their relationship in mid-January 1985 and conferred with both of them on February 11. Denise worked her next shift after that meeting but did not report for work thereafter. She explains her actions as an attempt to save William from an adverse employment decision. Chief Miller nevertheless reported both of them to the Village Attorney and Village Board.

The Board authorized the attorney to prefer charges leading to their dismissal. While those charges were pending, but before any hearing was held, William and Denise were married in Las Vegas, Nevada. William reported himself sick in order to travel to Las Vegas for the wedding. On April 11, 1985, the Board heard the charges, took testimony, and after deliberation ordered both William and Denise dismissed from their employment.

Plaintiffs bring this action under 42 U.S.C. § 1983 against the Village, Chief Miller, the members of the Village Board, and Kenneth Clark, the Village Attorney. They claim that directive no. 72 and their firing under it infringed their constitutional rights of freedom of association and privacy. They also assert that the regulation was arbitrarily and capriciously applied to them, depriving them of equal protection of the laws. They further complain that they were terminated without due process of law in that the Board did not decide to terminate them impartially on the basis of the evidence presented at their hearing, but rather on the basis of prior ex parte communications from defendant Clark. William Kukla, alone, also brings a claim against the Village for back overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.

The defendants now move for dismissal or in the alternative for summary judgment on various grounds. All defendants, including the Village, contend that (1) directive no. 72 does not infringe plaintiffs' constitutional rights since the Village, as an employer, may restrict the conduct of its employees when the restriction is narrowly drawn in support of a legitimate employment-related interest; (2) plaintiffs have no equal protection claim since they have not alleged that the regulation was intentionally used to discriminate against them on the basis of their membership in a group or class; (3) no due process rights were implicated by the discharge, since the Kuklas had no property interest in their jobs, and the charges affected no liberty interest since the charges did not defame the Kuklas; (4) William Kukla has no FLSA claim since the decision allowing application of that act to units of local government, Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), should not apply retroactively. The members of the Village Board assert that as legislators they have absolute immunity to any damage award under § 1983. Clark asserts absolute prosecutorial immunity, and Chief Miller a qualified immunity under the rule of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Both sides have submitted affidavits and documents, and defendants also submit a transcript of the Board's hearing and its official decision.

DISCUSSION

I. Discharges of Public Employees as a Burden to the Exercise of their Constitutional Rights

The Kuklas claim that under the principles of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a police department regulation which allows their discharge for living together is unconstitutional. Perry held that an opportunity for employment with a government must be treated like any other government benefit for purposes of constitutional law. The state "may not deny that benefit to a person on a basis that infringes his constitutionally protected interests." 408 U.S. at 597, 92 S.Ct. at 2697. An employee at will who would have no legal recourse if fired by a private employer nevertheless may have an action if his or her employer is a government agency and he or she was fired for a constitutionally impermissible reason.

A. Varying Results for Association and Privacy Claims

The Kuklas contend that Swope v. Bratton, 541 F.Supp. 99 (W.D.Ark.1982), is on all fours with the instant case and should dictate this court's result. In Swope, as here, a police sergeant was accused of cohabitation with a dispatcher. The court held that the department could not demote him to patrolman for that reason. Plaintiffs also rely on such cases as Littlejohn v. Rose, 768 F.2d 765 (6th Cir.1985), cert. denied, 475 U.S. ___, 106 S.Ct. 1260, 89 L.Ed.2d 570 (1986), which held that a public school system could not refuse to rehire a non-tenured teacher merely because she was going through a divorce, and Briggs v. North Muskegon Police Dept., 563 F.Supp. 585 (W.D.Mich.1983), aff'd mem., 746 F.2d 1475 (6th Cir.1984), cert. denied, 473 U.S. ___, 105 S.Ct. 3535, 87 L.Ed.2d 659 (1985), which found that the discharge of a police officer for an adulterous cohabitation was unconstitutional. The Kuklas maintain that their relationship had constitutional protection through their freedom of association and right to privacy. Firing them for it without any evidence that it diminished their on-the-job performance, they argue, infringed their constitutionally protected interests.

The cases dealing with unfavorable personnel actions against employees in law enforcement for their private and personal associations, however, do not line up neatly behind plaintiffs' (or defendants') stance. Wilson v. Taylor, 733 F.2d 1539 (11th Cir. 1984), and Shuman v. City of Philadelphia, 470 F.Supp. 449 (E.D.Pa.1979), like Swope and Briggs held unconstitutional unfavorable employment decisions grounded on officers' friendships with the opposite sex. In Wilson, a policeman discharged for dating the daughter of an organized crime figure brought a constitutional claim against his department, and won. Shuman concerned a veteran officer who left his wife for cohabitation with an 18-year old. The court voided his firing. But, on the other hand, in Potter v. Murray City, 760 F.2d 1065 (10th Cir.), cert. denied, 474 U.S. ___, 106 S.Ct. 145, 88 L.Ed.2d 120 (1985), a Utah municipality could constitutionally discharge a policeman on discovering that he practiced polygamy, even though he asserted not only his right to...