Lawlor v. Metro. Water Reclamation Dist. of Greater Chi.
| Decision Date | 11 March 2020 |
| Docket Number | Case No. 17-cv-117 |
| Parties | DENIS LAWLOR and DANIEL VARALLO, Plaintiffs, v. METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Before the Court are the motion to dismiss [94] filed by Defendants Major Luis Gutierrez, Lieutenant Cynthia Tencza, Karen Stec, and the Illinois State Police (collectively, the ), the motion to dismiss [99] filed by Defendants Metropolitan Water Reclamation District of Greater Chicago ("MWRD"), Kaye Heidenreich, David St. Pierre, and Denise Korcal (collectively, the "MWRD Defendants), and the motion to dismiss [102] filed by Defendant Motorola Solutions, Inc. ("Motorola"). For the reasons set forth below, Defendants' motions to dismiss [94, 99, 102] are granted with respect to the federal claims (Counts I, II, III, and IV), which are dismissed with prejudice. The Court declines to exercise supplemental jurisdiction over the state-law claims, dismissing them without prejudice. Civil case terminated.
This lawsuit stems from the alleged malfunction of a handheld radio manufactured by Motorola, which caused a conversation between Plaintiffs Denis Lawlor and Daniel Varallo to be inadvertently broadcast over a radio channel dedicated to the Illinois State Police. A recording of the conversation was copied and given to Plaintiffs' employer, resulting in their termination.
Plaintiffs Denis Lawlor and Daniel Varallo were police officers for the MWRD. [82] at ¶¶ 26-27. At approximately 1:00 a.m. on January 18, 2015, Plaintiffs were engaged in what they characterize as a private conversation, which was intercepted by the Illinois State Police's Chicago North radio channel. Id. at ¶ 46. Only the Illinois State Police were authorized to access and broadcast on the Chicago North radio channel. Id. at ¶ 54. The conversation between Plaintiffs lasted approximately 58 minutes. Id. at ¶ 56.
Illinois State Police Telecommunication Specialist Angie Vandenberg, who was working as the dispatcher on the Chicago North radio channel, did not recognize the voices of the persons talking. Id. at ¶ 57. Vandenberg recognized that Plaintiffs' conversation did not involve official Illinois State Police business or a public safety matter. Id. at ¶ 59. Acting Master Sgt. Rodney Collins, who was the midnight shift commander that night, listened to the entire conversation between Plaintiffs as the conversation was being transmitted over the Illinois State Police's Chicago North radio station. Id. at ¶ 69-70. Sgt. Collins realized that the conversation between Plaintiffs was not related to any official Illinois State Police business or public safety matter. Id. at ¶ 71. Someone from the Illinois State Police—the amended complaint elides over exactly who—contacted the MWRD to ask if it was the source of the transmissions. Sgt. Patrick Kennedy at the MWRD contacted Plaintiffs and the transmission ended. Id. at ¶ 75. Plaintiffs allege that the Illinois State Police recorded the entire private conversation between Plaintiffs, but Plaintiffs do not indicate whether the Illinois State Police always recorded the Chicago North radio channel. Id. at ¶ 61. It does appear, however, that recording the channel was the normal Illinois State Police practice. See [82] at ¶ 82-83; [95-4] (Illinois State Police Directive ADM-011, Section I.A) ("The Illinois State Police (ISP) will [u]se logging recorders and console-based instant retrieval at Illinois State Police facilities to record radio channels and emergency telephone lines.").2 Plaintiffs also fail to indicate who at the Illinois State Police recorded the conversation.
After the incident, Sgt. Collins sent an email to his supervisor Captain Luis Gutierrez (a State Defendant) to document the incident. [82] at ¶ 76. Defendant Gutierrez instructed Sgt. Collins to open an investigation after the incident to determine whether or not there was any "FCC violation," presumably meaning a violation of Federal Communications Commission regulations. Id. at ¶ 77. Defendant Gutierrez verbally requested that Karen Stec, a Telecommunications Supervisor for the Illinois State Police and a State Defendant, provide him with a copy of "the communication." Id. at ¶ 78. She did not receive a written request from Defendant Gutierrez to copy a recording of the conversation onto a CD. Id. at ¶ 81. Defendant Stec had experienced several "open mic" situations in the past, but had never recorded any other open mic situation to a CD. Id. at ¶ 77. After listening to the conversation, Defendant Gutierrez realized that the conversation had nothing to do with an emergency situation. Id. at ¶ 85. Defendant Gutierrez then gave Illinois State Police Lieutenant Cindy Tencza (a State Defendant) a CD containing Plaintiffs' conversation and directed her to investigate. Id. Defendant Gutierrez noted, however, that any such investigation should be closed if the MWRD conducted an internal investigation. Id. at ¶ 86.
Defendant Gutierrez did not receive a formal written request or a subpoena from the MWRD for the CD containing the recording of the private conversation between Plaintiffs. Id. at ¶ 87. Rather, Defendant Tencza spoke with Kaye Heidenreich (an MWRD Defendant), the Chief of Police for the MWRD, and Defendant Tencza volunteered to give Defendant Heidenreich the CD containing the recording of Plaintiffs' conversation, as long as the MWRD would discipline Plaintiffs based on their statements recorded on the CD. Id. at 88. Defendant Tencza delivered a copy of the CD to Defendant Heidenreich on January 22, 2015. Id. After Defendant Heidenreich listened to the CD, Denise Korcal (an MWRD Defendant), the Director of Human Resources for the MWRD, was summoned to Defendant Heidenreich's office to listen to a portion of Plaintiffs conversation.3 Id. at ¶ 99. Defendant Korcal called David St. Pierre (an MWRD Defendant), the Executive Director of the MWRD, and ordered that copies and a transcript of Plaintiffs' conversation be made. Id. at ¶¶ 100-102. The MWRD provided a copy of the CD to "the press," though the amended complaint does not identify any individuals or even specific media outlets as recipients. Id. at 103. The MWRD Defendants used the recording of Plaintiffs' conversation to terminate Plaintiffs' employment with the MWRD. Id. at ¶¶ 113-115.
Plaintiffs allege that the conversation was transmitted because of a malfunction in the StarCom communications system used by the Illinois State Police. The Illinois State Police and Motorola jointly created StarCom. Id. at ¶ 20. In December 2014, the Illinois State Police became aware that StarCom had a problem that caused it to intercept non-police communications and broadcast them on Illinois State Police radio channels. Id. at ¶ 35. Motorola investigated and determined that each of the inadvertent transmissions came from MWRD radios. Id. at ¶ 36. The Illinois State Police and Motorola closed their investigation without resolving the problem. Id. at ¶ 39.
Separately, Plaintiffs allege that in 2013, a female police officer with the MWRD participated in an internal investigation regarding the behavior of a co-worker who was creating a hostile work environment for the female officer. Id. at ¶ 106. The female MWRD officer recorded her fellow male MWRD employee while he was using profanity towards her. On March 20, 2013, Defendant Korcal, wrote the female MWRD officer a letter and informed the female officer, "You stated you inadvertently recorded [the male MWRD employee's] alleged use of profanity, but that recording was obtained without [the male MWRD employee's] knowledge or permission; therefore, it cannot be used as evidence against him." Id. at ¶ 107.
Plaintiffs brought this lawsuit bringing claims under 42 U.S.C. § 1983, alleging that the State Defendants and the MWRD Defendants violated Plaintiffs' (1) First Amendment rights, (2) Fourth Amendment rights, and (3) Fourteenth Amendment equal protection rights. Plaintiffs also allege that all Defendants violated the Electronic Communication Privacy Act. Finally, Plaintiffs bring a number of state-law claims against all Defendants, including Defendant Motorola. Defendants moved to dismiss, see [94, 99, and 102], and the Court granted the motions, dismissing some counts with prejudice and others without prejudice. The Court gave Plaintiffs the opportunity to replead the claims dismissed without prejudice, if they could do so consistent with Federal Rule of Evidence 11. See [67]. Plaintiffs moved for reconsideration [71]. The Court granted the motion in part, vacating the "with prejudice" aspect of its prior dismissal order for all claims except those barred by the Eleventh Amendment. [78] at 1. The Court allowed Plaintiffs "a full opportunity to replead as to both the facts and their legal theories," warning that if "the amended complaint does not survive a renewed motion to dismiss * * * the claims will be dismissed with prejudice." [78] at 1. Plaintiffs amended their complaint, see [82], and Defendants' second round of motions to dismiss [94; 99; 102] are now before the Court.4
To survive a Federal Rule of Civil Procedure ("Rule") 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level." E.E.O.C. v. Concentra Health Servs., Inc., ...
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