Selmani v. Vill. of Bartlett

• Decision Date: 27 January 2021
• Docket Number: No. 20-cv-2097,20-cv-2097
• Citation: 515 F.Supp.3d 882
• Court: U.S. District Court — Northern District of Illinois
• Parties: Gzim SELMANI, Plaintiff, v. VILLAGE OF BARTLETT, et al., Defendants.

515 F.Supp.3d 882

Gzim SELMANI, Plaintiff,

v.VILLAGE OF BARTLETT, et al., Defendants.

No. 20-cv-2097

United States District Court, N.D. Illinois, Eastern Division.

Signed January 27, 2021

Thomas Steven Radja, Jr., Collins & Radja, Naperville, IL, for Plaintiff.

Lori Ann Vanderlaan, Allie Burnet, Best, Vanderlaan & Harrington, Chicago, IL, for Defendants.

Memorandum Opinion and Order

Elaine E. Bucklo, United States District Judge

Plaintiff Gzim Selmani, a police officer employed by the Village of Bartlett Police Department, brings this action against Defendants—the Village of Bartlett (the "Village"), the Village President, and several Bartlett Police Department officials—seeking damages stemming from the Village's decision to put Mr. Selmani on unpaid medical leave in 2019 after psychological symptoms caused by a 2014 training incident intensified. Defendants move to dismiss Mr. Selmani's six-count Amended Complaint in its entirety [44]. For the reasons that follow, Defendants’ motion is granted in part and denied in part.

I.

In reviewing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), I "accept all well pled facts as true and draw all permissible inferences in favor of the plaintiff." Agnew v. Nat'l Collegiate Athletic Ass'n , 683 F.3d 328, 334 (7th Cir. 2012). To survive a motion to dismiss, the complaint must state a claim "that is plausible on its face" after conclusory allegations are disregarded. W. Bend Mut. Ins. Co. v. Schumacher , 844 F.3d 670, 675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

Mr. Selmani was hired as a police officer by the Village of Bartlett Police Department in September 2012. In August 2014, he accepted an assignment as a member of the Specialized Police Emergency Action Response ("SPEAR") team. Mr. Selmani took part in a SPEAR team training exercise involving simulated ammunition on or about August 11, 2014. After the exercise had concluded, Mr. Selmani removed his protective equipment. Mr. Selmani's team members, including several of the defendants, then instructed Mr. Selmani to re-enter the training room and subsequently fired thirty to fifty rounds of simulated ammunition from their AR-15 rifles at Mr. Selmani at close range. As a result of this incident, which Mr. Selmani characterizes as "hazing," Mr. Selmani suffered both physical and emotional injuries. He alleges that he "struggled for years from recurring and disturbing nightmares and flashbacks of the traumatic event." ECF No. 37 ¶ 23.

Mr. Selmani resigned from the SPEAR team in 2017, and ultimately reported the incident to his employer in early 2019. He sought counseling at that time, and as a result, he was eventually diagnosed with Post-Traumatic Stress Disorder

("PTSD")

and other psychological disorders. In February 2019, Mr. Selmani requested that he be put on paid leave. Instead, purportedly without explanation, the Village placed Mr. Selmani on unpaid leave in May 2019 and subsequently ceased providing employee benefits such as health care. Mr. Selmani complains that he is entitled to a year of salary and other benefits under the Public Employee Disability Act ("PEDA"), 5 Ill. Comp. Stat. 345/1, but that the Village did not initially inform Mr. Selmani that he was eligible for those benefits, and then denied his application for reasons of timeliness and process.

The operative Amended Complaint (the "complaint") was filed in October 2020 after I granted a motion to dismiss the initial complaint. See ECF No. 33. The Amended Complaint asserts six causes of action, including both federal claims pursuant to 42 U.S.C. § 1983 and state-law claims. Defendants now move to dismiss the complaint in its entirety.

II.

In Count I, Mr. Selmani brings a claim for due process violations pursuant to 42 U.S.C. § 1983. Specifically, he claims that he was deprived of due process when he was placed on unpaid leave without a pre-decision hearing or other opportunity to be heard.

Due process claims such as Mr. Selmani's present two "basic legal questions": "(1) is there a property or liberty interest protected by due process; and (2) if so, what process is due, and when must that process be made available?" Bradley v. Vill. of Univ. Park , 929 F.3d 875, 882 (7th Cir. 2019) (citing Simpson v. Brown County , 860 F.3d 1001, 1006 (7th Cir. 2017) ). Defendants argue that Mr. Selmani has failed to allege the first element—a protected property interest. "The basic characteristic of a property interest is the continued flow of benefits, which may not be interrupted without an opportunity to be heard." Ceko v. Martin , 753 F. Supp. 1418, 1423 (N.D. Ill. 1990). "For public employees, a ‘protected property interest in employment can arise from a state statute, regulation, municipal ordinance, or an express or implied contract.’ " Bradley , 929 F.3d at 882 (citing Crull v. Sunderman , 384 F.3d 453, 460 (7th Cir. 2004) ).

In his Amended Complaint, Mr. Selmani asserts that the property interest in his employment stems from three independent sources: (1) an Illinois state statute, 65 Ill. Comp. Stat. 5/10-2.1-17, (2) the Collective Bargaining Agreement ("CBA") that was in effect at the time, and (3) the PEDA statute. I turn first to the Illinois state statute, which provides:

Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. The hearing shall be as hereinafter provided, unless the employer and the labor organization representing the person have negotiated an alternative or supplemental form of due process based upon impartial arbitration as a term of a collective bargaining agreement. Such bargaining shall be mandatory unless the parties mutually agree otherwise. Any such alternative agreement shall be permissive.

65 Ill. Comp. Stat. Ann. 5/10-2.1-17.

Defendants deny that the statute creates a property interest in Mr. Selmani's position. First, they contend that the statute does not apply by its terms because Mr. Selmani was placed on unpaid leave, not "removed" or "discharged." It is true that the statute does not provide any explicit protections regarding leaves or suspensions. See Spring-Weber v. City of Chicago , No. 16 C 8097, 2017 WL 1316267, at *5 (N.D. Ill. Apr. 10, 2017) (contrasting 65 Ill. Comp. Stat. 5/10-2.1-17 with another statute explicitly referring to suspensions). However, "[e]ven in the absence of explicit statutory protection, ... removal or suspension—even a suspension with pay—from a statutorily protected employment position ‘might produce ... economic effects that trigger the protection of the Due Process Clause.’ " Luellen v. City of East Chicago , 350 F.3d 604, 613-14 (7th Cir. 2003) (citing Townsend v. Vallas , 256 F.3d 661, 676 (7th Cir. 2001) ). In such cases, the due process clause is implicated where "the property lost due to the suspension is so integral to the employee's position such that loss of the property could be deemed a loss of the employee's position." Spring-Weber , 2017 WL 1316267, at *5.

In Ceko v. Martin , for example, a 911 police dispatcher complained that he was deprived of due process when he was placed on an unpaid medical leave of absence without an opportunity to contest the decision. 753 F. Supp. at 1421. The dispatcher argued that his property right arose from another Illinois statute that provided that a police employee could not be "removed or discharged, or suspended ... except for cause." Id. at 1422. The court found that while the dispatcher was not suspended or removed "in the strict sense of the term," his due process rights were implicated because "he was effectively deprived of his salary." Id. at 1422-23. The court explained: "The interest in continued employment would be hollow indeed if it did not secure payment, the primary benefit of being employed." Id. at 1423.

Here, just like the plaintiff in Ceko , Mr. Selmani was placed on unpaid leave. The denial of Mr. Selmani's salary constituted an effective denial of his employment, which is protected under 65 Ill. Comp. Stat. 5/10-2.1-17. Accordingly, although Mr. Selmani was placed on unpaid leave rather than removed or terminated, he has adequately alleged a protected property interest. See also Spring-Weber , 2017 WL 1316267, at *5 (fire paramedic placed on involuntary medical leave had property interest in employment under 65 Ill. Comp. Stat. 5/10-2.1-17 despite statute's failure to mention suspension or leave); Bauchard v. Martin , No. 91 C 7839, 1993 WL 79259, at *4 (N.D. Ill. Mar. 16, 1993) (police officer placed on involuntary leave of absence had protected property interest in employment). Because I conclude that Mr. Selmani alleged a property interest stemming from the Illinois statute, I need not consider whether the CBA or the PEDA statute also creates a property interest.

Defendants also argue that applicable CBA includes a grievance procedure that effectively supersedes the Illinois statute such that the statute does not provide Mr. Selmani with a protectable property interest. Defendants point to the statutory language: "[N]o officer or member of the ... police department ... shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. The hearing shall be as hereinafter provided, unless the employer and the labor organization representing the person have negotiated an alternative or supplemental form of due process based upon impartial arbitration as a term of a collective bargaining agreement. " 65 Ill. Comp. Stat. 5/10-2.1-17 (emphasis added). By its terms, however, the statute simply provides that labor organizations may negotiate for an arbitration proceeding instead of a hearing in the form specified by the statute. The...