Shakman v. Democratic Org. of Cook Cnty.

• Decision Date: 29 January 2013
• Docket Number: Case No. 69 C 2145.
• Parties: Michael L. SHAKMAN, et al., Plaintiff, v. DEMOCRATIC ORGANIZATION OF COOK COUNTY, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

920 F.Supp.2d 881

Michael L. SHAKMAN, et al., Plaintiff,

v.DEMOCRATIC ORGANIZATION OF COOK COUNTY, et al., Defendants.

Case No. 69 C 2145.

United States District Court,

N.D. Illinois,

Eastern Division.

Jan. 29, 2013.

Brian Ignatius Hays, Katherine Heid Harris, Locke Lord LLP, Edward W. Feldman, Fredrick E. Vars, Gabriel Bankier Plotkin, Michael L. Shakman, Miller Shakman & Beem LLP, Chicago, IL, for Plaintiff.

James Quinn Brennwald, Edes & Rosen, Naomi Ann Avendano, Stephen Ray Patton, David Justin Seery, City of Chicago, Myron F. Mackoff, The Hubert Law Group, P.C., Stephanie L. Stewart, Ted Shuya Petrovic Li, The Gloor Law Group, LLC, Brian Dennis McCarthy, Sally J. Scott, Franczek Sullivan, P.C., William R. Pokorny, Franczek Radelet PC, Lilianna Maria Kalin, Patrick T. Driscoll, Jr., Daniel H. Brennan, Jr., Tyrone C. Fahner, Sheila Marie Finnegan, Mayer Brown LLP, Stephen H. Pugh, Tiffany Mary Ferguson, Pugh, Jones & Johnson, P.C., Brent Douglas Stratton, Office of the Attorney General, Naomi Ann Avendano, Jennifer Anne Naber, Joseph Michael Gagliardo, Laner, Muchin, Dombrow, Becker, Leslie Michelle Darling, Tracey Renee Ladner, City of Chicago, Law Department Corporation Counsel, Chicago, IL, Deborah Joyce Allen, Illinois Department of Transportation, Schaumburg, IL, for Defendants.

MEMORANDUM OPINION AND ORDER¹

SIDNEY I. SCHENKIER, United States Magistrate Judge.

This matter is before the Court upon the motion of the post-Supplemental Relief Order Complaint Administrator, Mark Vogel, to compel the testimony of Doris Gershon (“Motion to Compel”) (doc. # 3036). For the reasons set forth below, the Court grants the Motion to Compel.

I.

In 1972, Defendant Cook County (the “County”) entered into a consent decree, which prohibited the County from “conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor.” Shakman v. Democratic Org. of Cook County, 481 F.Supp. 1315, 1358 (N.D.Ill.1979), vacated sub nom., Shakman v. Dunne, 829 F.2d 1387 (7th Cir.1987). In 1994, the County entered into a subsequent consent decree that incorporated the 1972 consent decree's prohibitions and extended those prohibitions to include the County's hiring practices ( see doc. # 587 at 5). On February 2, 2007, the Honorable Wayne R. Andersen entered a Supplemental Relief Order (“SRO”), which included a procedure for administering complaints of unlawful political discrimination in Cook County employment in violation of the consent decrees or the SRO ( Id.). Similar consent decrees and a supplemental relief order were entered regarding the Cook County Forest Preserve District (the “Forest Preserve”) ( see doc. # 1010: January 14, 2009, Supplemental Relief Order (“FPD–SRO”)), as well as to various other governmental entities which are defendants in the Shakman litigation. We focus here on the orders pertaining to the County and the Forest Preserve.

The consent decrees and the supplemental relief orders created a network of individuals and entities assigned various responsibilities for ensuring that the County and the Forest Preserve meet their obligations to eschew unlawful political discrimination in employment practices. We do not attempt a comprehensive catalog of this network; we highlight only those individuals and entities relevant to the present dispute.

The SRO governing the County established a “Shakman Compliance Administrator,” now known as the Cook County Compliance Administrator (“CCA”), charged with ensuring future compliance with the County's consent decrees (doc. # 531). Among other things, the CCA was empowered to review the County's hiring practices, assist in establishing training programs on non-political hiring, adjudicate claims based on pre-SRO violations, and assist in proposing a new hiring plan ( Id.). The FPD–SRO created a similar position—the District Compliance Administrator for the Forest Preserve District (“DCA”) with similar authority (doc. # 1010).

The SROs governing the County and the Forest Preserve also created a procedure whereby individuals could lodge complaints alleging political discrimination that they claim occurred after entry of the SROs. The SROs specified that the County Inspector General's Office (“IGO”), or another individual selected by the Court, would administer the complaint procedure (doc. # 587 at 22–31). ² If the plaintiffs objected to the individual serving as the Inspector General discharging that function under the SRO, they could suggest that another individual or entity be appointed to administer the complaint procedures (doc. # 587 at 22 n. 1). The plaintiffs did object, and in 2009, Judge Andersen appointed Mark Vogel as post-SRO Complaint Administrator (“CA”) for the County and the Forest Preserve (docs. 1024, 1025).³ The Court charged the CA with investigating and reporting complaints of unlawful political discrimination in County employment (doc. # 587 at 11–16; doc. # 1025). To accomplish this task, the Court empowered the CA to issue subpoenas and “to take testimony to the same extent as a lawyer for a party in discovery proceedings in civil litigation” (doc. # 1025 at 3).

II.

We now turn to the dispute that is the subject of the present motion. Doris Gershon worked for more than 25 years in the Human Resources Department for Cook County (“HR”) (doc. # 3116: Response To Post–SRO Complaint Administrator's Motion to Compel Testimony of Doris Gershon (“Resp. Br.”) at 8). Most recently, she served as Deputy Chief of HR. In carrying out their Shakman decree and SRO duties, in 2009 and 2010, various officials interviewed Ms. Gershon about areas within her knowledge and expertise: hiring practices and procedures of Cook County. On March 5, July 15, August 19, and August 24 of 2009, the CCA and her staff interviewed Ms. Gershon, and she answered questions regarding her HR duties, including “hiring and the hiring process (including screening, eligibility lists, job descriptions, requests to hire, and testing); onboarding; reclassifications; layoffs; recalls; desk audits; salary increases; and evaluation of a hiring process” (doc. # 3036: Post–SRO Complaint Administrator's Motion to Compel Testimony of Doris Gershon (“CA's Br.”) at 14).

On May 18, 2010, the CA's Office interviewed Ms. Gershon, and she answered questions regarding “the job application system, Taleo, and department interaction with HR regarding hiring, union positions, requests to hire and promotions” ( Id. at 14–15). On September 14, 2010, the OIIG interviewed Ms. Gershon. At that meeting, she was represented by the State's Attorney's Office, and she answered questions regarding “improper manipulation of the Shakman Exempt List” and “other employment matters such as her duties, maintenance of personnel files, and the creation of job positions” ( Id. at 14). On October 20, 2010, the DCA interviewed Ms. Gershon regarding “the hiring processes of the FPD” ( Id.). She was again represented by the State's Attorney's Office and answered questions regarding “hiring, posting of job positions, accepting applications, screening, eligibility lists, interviews, hiring decisions, documentation, policies and procedures, recalls, staff and specific position postings” ( Id.).

In addition, Ms. Gershon, in her capacity as Deputy Director of HR, was called to testify at two Cook County Employee Appeals Board hearings during 2010. At those hearings, Ms. Gershon answered questions under oath regarding “the Shakman Exempt List and the employment and termination of two allegedly Shakman exempt employees” (CA's Br. at 15).

Mr. Vogel, in his role as CA, subpoenaed Ms. Gershon, who is no longer employed by Cook County, for a deposition on March 6, 2012 (CA's Br. at 2). ⁴ The CA sought to gather information about County employment practices, policies, and facts relevant to complaint investigations he was conducting ( Id.). At the March 6, 2012 deposition, Ms. Gershon's attorney, Raymond Pijon, advised attorneys from the CA's office that Ms. Gershon had received a grant of immunity on February 5, 2007, for her grand jury testimony regarding hiring practices in Cook County, and that she intended to exercise her Fifth Amendment privilege against self-incrimination and refuse to answer any related questions ( Id., Ex. 1 at 8). The deposition proceeded, and Ms. Gershon declined to answer nearly every question, asserting the Fifth Amendment ( Id.) Consequently, the CA elected to continue the deposition on a later date.

In April, May, and June 2012, the CA and an attorney from the CA's office communicated with Mr. Pijon and informed him that Ms. Gershon had already voluntarily disclosed information that related to “most, if not all, of the same lines of questioning” that the CA wished to pursue at her deposition (CA's Br. at 3 & Ex. 2), Ms. Gershon's deposition was then resumed on June 13, 2012 ( Id., Ex. 3). Again, Ms. Gershon asserted her Fifth Amendment privilege to nearly all questions, and when asked to identify what fear she had of prosecution, her attorney refused to allow her to answer ( Id., Ex. 3 at 4).

Consequently, on October 9, 2012, the CA filed the present Motion to Compel, arguing that Ms. Gershon's invocation of her Fifth Amendment privilege lacks merit because: 1) she did not establish that answering any of the CA's questions would tend to incriminate her or forge a link in the chain of evidence under any theory of criminal liability; 2) her blanket assertion of privilege is frivolous and in some cases, in bad faith; and 3) even if she had a valid Fifth Amendment claim, she waived her privilege as to areas of questioning that she had already answered during previous interviews. The CA's motion included transcripts from both depositions (CA's Br. at Ex's. 1. 3). In addition, the CA included a summary showing how previous interview statements that Ms....