suspension. But like Panthera and Dangman, Sgt. Johnson was offered suspension in lieu of dismissal
so he, too, received similar treatment. Miller is a closer call because he engaged in arguably more
serious misconduct — allegedly sexually assaulting a woman -- but received less punishment; on the other
hand, Miller, unlike Panthera did not have any prior disciplinary record.

Officer Sheridan is a different story. Panthcra has raised genuine issues of fact as to whether
Sheridan engaged in similar misconduct when he vociferously argued with his superior about an
assigned task using profanity in front of civilians and told the superior “you don’t know what you're
doing.” A reasonable jury could conclude that Sheridan was insubordinate and had disobeyed a direct
order. Sheridan, like Panthera, had a prior record — he had been suspended on four prior occasions
for various offenscs but unlike Panthera, he was not even threatened with Board proceedings.
Defendants have not offered any rational basis for this disparity in treatment, which is sufficient to defeat
summary judgment on Count 2 of the complaint.

For similar reasons, a jury could reasonably conclude that defendants deliberately sought to
deprive Panthera of his equal protection rights based on subjective ill will, which gives rise to a
vindictive action equal protection claim. See Albiero, 246 F.3d at 932. In other words, a jury could
find that defendants treated Panihera less favorably than Officer Sheridan “out of sheer vindictiveness.”
Id. (quoting Esmail v. Macrane, 53 F.3d 176, 178 (7" Cir. 1995)). If defendants “would have taken
the complained-of action anyway, cven if [they] didn’t have the animus, the animus would not condemn
the action.” Jd. (“[iJll will must be the sole cause of the complained-of action”). But as noted earlier,
defendants have not presented any argument in this regard. Accordingly, they are not entitled to

summary judgment on Count 2 of the complaint.

19



(internal quotations omitted). And though “an employee’s decision to deliver the message in private
supports an inference that the real concern is the employment relation,” Wales v. Board of Education
of Community Unit School District 300, 120 F.3d 82, 84 (7" Cir, 1997), this is not decisive

Gustafson v. Jones, 117 F.3d 1015, 1018 (7" Cir. 1997) (“Gustafson £’) (“speech that occurs

wholly within a governmental entity may still touch on a matler of public concern”); Delgado, 282 F.3d
at 518 (‘the fact that [former police officer] Delgado communicated privately with his superiors docs
not make his speech less a matter of public concern”).

Viewed in contcxt, Panthera has raised a genuine issue of fact as to whether he was speaking
out on a matter of public concern or merely airing intemal employment complaints, such as his personal
grievance with Lt. Raglione, his desire to be treated “fairly,” and his concem that Lt, Simon failed to
properly discipline Lt. Raglione. See, e.g., Taylor v, Carmouche, 214 F.3d 788 (7" Cir. 2000)
(“statements made in an employment setling about how the tasks should be carticd out arc appropriate
subjects for reaction by management, without constitutional obstacles”). The Court is skeptical that
complaints about improper flirting by a lieutenant on one occasion’ and about a decision to summon the
fire department on a burglary call are issues of public concem, but summary judgment is not
appropriate in the face of Panthera’s evidence that he “intended to bring to light what [he] belicved to
be the negative law enforcement consequences o!” Lt. Raglione’s behavior. Gustafson 1, 290 F.3d at

908.

3 The Court notes that although Lt. Raglione apparently frequently showed up at
Panthera’s calls, the Service Merchandise call was the first time Panthera ever reports observing Lt.
Raglionc flirting with someone at the scene.

13



that Lt. Raglione’s initial belief that Panthera was not insubordinate during the Service Merchandise
incident would have been sufficient lo convince the Board to disregard the contrary testimony it heard
from Lt. Simon and Capt. Vorderer. With respect to the issue of bias, the Court finds no evidence that
the Board, which was expressly admonished to rule strictly on the evidence presented, failed to reach
an impartial decision. Under the circumstances, Panthera has failed to show that he received an unfair
hearing, and his arguments arc insufficicnt to show that the Board’s findings were arbitrary or
capricious. See Krocka, 327 Ill. App. 3d at 49, 762 N.E.2d at 589 (plaintiff received fair hearing
wherc he was represented by counsel, had an opportunity to be heard, cross-examined witnesses and
presented no evidence of bias).

As noted earlier, the partics have different versions of what Panthera said to detainee Foltz on
July 6, 2000. And Panthera is correct that his version, if believed, arguably would not support a finding
of disloyalty. Nevertheless, the Board listened to the testimony, observed (he witnesses and appears to
have credited the testimony of the several officers who reported hearing Panthera tell Foltz to suc the
Department because the pepper-spraying was “bullshit.” This Court cannot properly disturb the
Board's findings on this issue. See Clark v. Board of Fire and Police Commissioners of Village of
Bradley, 245 Ill. App. 3d 385, 392-93, 613 N.E.2d 826, 831 (1993) (“[iJt is the function of the Board
to determine the credibility of the witnesses”),

With regard to the fifth charge, Panthera claims that he did not willfully disobey Capt.
Vorderer’s order because he tumed in his star, ID card and keys as instructed and was not in fact

ordered to report to Capt. Vorderer. But Capt. Vorderer and Lt. Spellman both testified that they

specifically told Panthcra to sce the Captain, and the Board was free to believe their testimony. See



Panthera told Lt. Simon that Lt. Raglione had been unprofessional during the call and had flirted
and made “goo goo eyes” at the fomale keyholder. Def. Facts 4738, 39. Panthera reported that Lt.
Raghone failed to draw his weapon or respond to his radio, and suggested that this was because the
Lieutenant was overly focused on the keyholder. PI. Facts (26. Panthera also expressed displeasure
at the fact that Lt. Raglione had called out the fire department at the end of the call, which he felt was
“ridiculous.” In addition, Panthera “made some indication that I had personal conflict with (Lt,
Raglione], and that it’s obvious that he is not interested in treating me fairly and said this is a perfect
example, period. And J made an indication to him that yes, he has shown up on my calls and other
officers have even asked me why Lt. Raglione more or less rides me.” Panihera Dep., pp. 76-77; DX
14, pp. 37-38. Li. Simon told Panthera that he would look into the matter and, shortly thereafter, he
spoke with Lt. Raglione about the incident. Pl, Facts 927. At that time, neither Lt. Raglione nor Lt.
Simon had any inclination to discipline Panthera. Simon Dep., pp. 58-62; Pl. Facts 936,

On June 30, 2006, Panthera returned to Lt. Simon’s office to discuss the June 28 Service
Merchandise call. According to Panthera, “T was upset that he seemed as though the entire issue
around safety for the officers and safety of the civilians was blown off, and I could only see this
happening again until somebody got hurt.” Pl. Facts 928, Panthera reiterated his concerns to Lt.
Simon, who informed him that he had spoken to Lt, Raglione and did not believe he had acted
improperly. Panthera Dep., pp. 83-85. Panthera then asked whether another officer, Ruswick, had
been reprimanded for leaving the scene of a burglary two weeks carlier, He stated that Lt. Simon was

showing favoritism towards Lt, Raglione because of his rank, and that he {Panthera) would have been


3. Individual Liability

The parties dispute whether Chief Houk and Capt. Vorderer may be individually liable under
§1983. The Seventh Circuit has long held that “lability does not atlach unless the individual defendant
caused or participated in a constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7" Cir.
1996). In this case, Chief Houk and Capt. Vorderer jointly recommended that Panthcra be brought
before the Board for dismissal, which may have constituted a violation of his First Amendment and
equal protection rights. These are “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Brokaw y, Mercer County, 235 F.3d 1000, 1022 (7" Cir.
2000). Thus, Chief Houk and Capt. Vorderer may be liable on Counts 1 and 2 of the complaint.*
B. Administrative Review Claim

In Count 3 of the complaint, Panthera seeks reversal of the Board’s decision terminating his
employment. Review of an administrative agency’s decision regarding discharge requires a two-slep
analysis. See Krocka v. Police Board of City of Chicago, 327 Ml. App. 3d 36, 46, 762 N.E.2d 577,
586 (2001); Kappel v. Police Board of City of Chicago, 220 Ul. App. 34 580, 588, 580 N.E.2d
1314, 1320 (1991). First, the court must determine whether the agency's findings are “contrary to the

manifest weight of the evidence.” Launius v. Board of Fire and Police Commissioners of City of

4 The fact that the Board of Fire and Police Commissioners made the ultimate termination

decision is insufficient to insulate Chief Houk and Capt. Vorderer from lability for their role in the
process. See Vance, 97 F.3d at 993 (“[a]n official satisfies the personal responsibility requirement of
section 1983 ... if the conduct causing the constitutional deprivation occurs at [his] direction or with
[his] knowledge and consent. That is, he must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eyc.... In short, some causal connection or affirmative link between the action
complained about and the official sued is necessary for §1983 recovery”) (internal quotations omitted).

20



with Capt. Vorderer’s order, albeil three or four days late. And though he did not call Capt. Vorderer
personally, he did ask his union representative to tell the Captain on July 12 that he wanted to consull
with counscl prior to meeting with him. Moreover, Defendants’ witnesses may have testified that
Panthera was difficult or insubordinate towards them, bul Panthera never received any disciplinary
action for any of the events described by those wilnesses.

Nevertheless, given the Board’s findings that Panthera was repeatedly insubordinate and that he
failed to obey, even for a short period, an order of his Captain, the Court cannot say that the Board
“acted unrcasonably or arbitrarily by selecting a type of discipline that was inappropriate or unrclated to
the needs of the service.” Krocka, 327 Tll. App. 3d at 48, 762 N.E.2d at 588 (“[a]s the reviewing
court, we may not consider whether we would have imposed a more lenient disciplinary sentence”).
See also Norman, 245 Ill. App. 3d at 830-31, 614 N.E.2d at 504-05 (discharge may be appropriate
if the continued employment of an officer who disobeyed his superior officers would be detrimental to
the discipline and effectiveness of the department).

Panthera raises one final challenge to the Board's decision: he claims that the Board could only
discharge him on the basis of the fifth charge which accused him of failing to obey Capt. Vorderer’s
order, but that the fiflh charge, standing alone, was insufficient to justify his dismissal. Pl. Br., p. 42.
Panthera bases this argument on the fact that in the administrative complaint, defendants sought 30-day
suspensions for the first four charges and dismissal only for the fifth charge. Contrary to Panthera’s
assertion, however, this does not mean that the Board, alter hearing the evidence, was precluded from
imposing more severe discipline than defendants had requested. See flolden v. Police Board of City

of Chicago, 324 ILL. App. 3d 862, 755 N.E.2d 67, 74 (2001) (“if'an administrative agency’s

26



without having received any additional instruction to do so. Tn addition, Panthera admitied to raising his
voice in his meeting with Lt. Simon and Lt. Raglione, and the record reflects that he accused the
Lieutenant of making “goo goo eyes” at the female keyholder, which the Board could reasonably
conclude constituted “ridicule” of a supcrior officer, a form of insubordination.

Panthcra suggests that the Board would have reached a different conclusion with the benefit of
Lt. Raglione’s July 9, 2000 memo to Capt. Vorderer indicating that he could not substantiate a charge
of insubordination. Pl. Br., p. 40. In essence, this amounts to a claim that Panthera was denied a fair
hearing because defendants wrongfully withheld the memo, an issue he also raises by arguing that one of
the Board members was biascd in favor of Capt. Vorderer. In support of this argument, Panthera
offers the affidavit of his attomey, David Malthews, who claims to have requested “all documents
relevant to the charges brought against Plaintiff.” However, Matthews docs not indicate to whom he
made such a request or when, or whether it was verbal or written, Pl. Facts 1995, 96; Matthews AIT.
42. Panthera also claims that Chief Houk “was obligated under the mules of the Oak Lawn Fire and
Police Commission to provide Officer Panthera with a copy of the [July 9, 2000 memo].” PX R,
Second Request to Admit (4. But neither party has provided the Court with a copy of any
Commission rule to that effect, which precludes any meaningful analysis on this point,

Even assuming that it was improper for defendants to withhold the memo from Panthera, therc
is no evidence that the crror was material to the outcome of the case. Lt. Raglione and Capt. Vorderer
both testified at the hearing and Panthera, who was represented by counsel, had the opportunity to
cross-examine them regarding their views of his behavior. While it is true that Panthera’s attomey may

have asked different questions with the benefit of the memo, there js nothing in the record lo suggest

22



employee for speech on a matter of public concern “where the speech caused no actual disruption of
any kind for four months, and where the employer neither articulates a belief that the speech has the
potential to be disruptive in the future, nor has cvidence to support the reasonableness of such a
belief’).

Defendants attempt to avoid this conclusion by arguing that Panthera’s speech. falls within the
“wide gray arca between the clearly legal and the clearly illegal, and [that] the rules of qualified immunity
require giving the benefit of the doubt to the reasonable public official.” Def. Br., p. 6 (quoting
Gustafson T, 117 F.3d at 1021). This argument basically amounts to a claim that Panthera did not
clearly indicate that he was speaking out about public safety, presumably because he simultancously
raised more personal concems, But Panthera’s version of what he said, if belicved, would be sufficient
to put defendants on nolice that he was complaining about public safety, which is clearly protected
under the First Amendment. Gustafson I, 117 F.3d at 1021 (“[i]t has . . . been clear for years that
speech about police protection and public safety raiscs matters of public concern”). Defendants are not
protected by qualified immunity and, thus, their motion for summary judgment on Count 1 of the
complaint is denicd.

2 Equal Protection Claim

The Supreme Court has held that an equal protection claim may be brought by a person who is
a member of a “class of one.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam). See alse Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7TM Cir, 2000), To succeed
undcr this thcory, Panthera must show that (1) he was “intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in treatment” or (2) “the

17



The investigation “dragged on and dragged on” until on November 7, 2000, a Statement of
Charges (“administrative complaint”) was filed with (he Board of Fire and Police Commissioners of the
Village of Oak Lawn (ihe “Board”) seeking Panthcra’s termination. PI. Facts 85, 87. Chief Houk
and Capt. Vorderer were both involved in the decision to scck Panthera’s termination, though Chief
Houk apparently had the final word on that issue. Jd. 89-91. The administrative complamt contained
five charges. The first four concerned the allegations raised in the August 2000 Notice of Interrogation;
namely, Panthera’s conduct on June 28, June 30 and July 6, 2000. The fifth charge newly alleged that
Panthera was insubordinale when he failed to report to Capt. Vordercr as ordered, and was the only
charge seeking Panthera’s termination. /d. §{[93, 94; Def. Facts 44]103-13.

On January 10, 2001, the Board conducted a hearing to address the five charges.? For
reasons unknown to this Court, Capt. Vorderer did not give Panthera or his attorney a copy of Lt.
Raglione’s July 9, 2000 memo stating that he was unable to conclude that Panthera had been
insubordinate on June 28 and 30, 2000. PI. Facts 495-99. On February 8, 2001, the Board found
Panthera guilty of all charges. PX L. Following a hearing on March 20, 2001, the Board discharged.
Panthera effective March 26, 2001. PX B; Pl. Facts 4101; Def: Facts 4123.

DISCUSSION

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issuc as to any

material fact and thai the moving party is entitled to judgment as a matter of law.” Med. R. Civ. P.

The hearing originally commenced on December 6, 2000 but was continued at
Panthera’s request. DX 2, Report of Proceedings, p. 6.

9



B. The Les Brothers Restaurant Call

Around midnight on July 6, 2000, Panthera responded to a call at Les Brothers Restaurant.
Panthera arrived at the scene after the incident was over, but he transported one of the individuals in
custody to the police station. When Panthera arrived at the lock-up, a second man in custody,
Christopher Foltz, was extremely irate and hindering the booking process. Panthera asked Foltz why
he was so upset and Foltz said that he had been wrongfully pepper-sprayed by one of the officers.
Foltz also mentioned that his family was connected to the Cook County Sheriff and that he was going to
retain a lawyer. Pl. Facts §946, 48-49. According to Panthera, he procceded to calmly explain to
Foltz, “in a manner calculated to assist in (he completion of what had become a very difficult booking
process,” that if his story was true, he had a right to get an attorney. PI. Facts 50. Defendants claim
that Panthera told Foltz that he “could or should sue the Oak Lawn Police Department and the officer
that pepper-sprayed him.” Def. Facts (68. Defendants also claim that Panthera said, within hearing
distance of Foltz, that the pepper-spraying was “bullshit” and without reason. Jd. {§69-72.
Cc. Panthera’s Investigation and Discharge

When Chief Houk learned on July 10, 2000 of Panthera’s alleged communication with Foltz, he
immediately placed Panthcra on administrative leave. At Chief Houk’s instruction, Capt. Vorderer
called Panthera that day and left a voice mail message instructing him to tum in his badge, star, ID and
keys. Defendants claim that Capt. Vorderer also told Panthera to report to his office. Def. Facts 478.
Because Capt. Vorderer was unable to reach Panthera by phone, two sergeants went to Panthera’s

home to deliver an envelope with the Captain’s message. Panthera was not home, so the sergeants left

the envelope with his sister, who later gave it to Panthera. After receiving the envelope, Panthera then



disciplined if hc had failed to draw his gun or investigale the scene. Def. Facts 4/49; Pl. Resp. to Facts
49.

After speaking with Panthcra alone, Lt. Simon called Lt. Raglione into the office over
Panthera’s objection. Lt. Simon told Panthera that Lt. Raglione was his boss and was responsible for
handling calls, which Panthera did not dispute. Panthera says that he continued to press his position
that he was concemed about safety. Pl. Facts 431. He admits that during the conversation, he raised
his voice, became argumentative, called Lt. Raglionc by his first name, accused Lt. Raglione of giving
him an illegal order, and iold Lt. Raglionc that he respected his rank but did not respect Lt. Raglione as
aman. Def. Facts f[51-55.

On July 1, 2000, Lt. Raglione wrote a memo to Lt. Simon indicating that he initially believed
that the verbal correction he gave Panthera would be sufficient. However, based upon his subsequent
conversations with Panthera and Lt. Simon, he requested that corrective disciplinary action be taken,
such as education, a reprimand or a one-day suspension. PX E; Raglione Dep., p. 117. On July 9,
2000, Lt. Raglione wrote a memo to Captain Vorderer stating that he could not substantiate any
allegation that Panthera had been insubordinate during either the June 28 Service Merchandise call or
the meeting in Lt. Simon’s office on June 30. He was careful, however, to note that he could not speak
for Lt. Simon in that regard. Pl. Facts 41. Capt. Vorderer, who apparently had a stricter definition of
the term insubordinate, belicved that Lt. Raglione was mistaken in his conclusion. Jd. 43. After Capt.

Vordercr showed Lt. Raglione the written rule prohibiting msubordination, Lt. Raglione agreed that

Panthera’s conduct did fall within that definition. Jd. 44-45; Def. Resp. to Facts 444-45.



government is treating unequally those individuals who are prima facie identical in all relevant respects,
and that the cause of the differential treatment is a ‘totally illegitimate animus toward the plaintiff by the
defendant.” Nevel v. Village of Schaumburg, 297 F.3d 673, 681 (7" Cir. 2002) (quoting Albiero

v. City of Kankakee, 246 F.3d 927, 932 (7" Cir. 2001)). See also Northwestern University v.

City of Evanston, No. 00 C 7309, 2002 WL 31027981 (N.D. Ll. Sept. 11, 2002) (discussing

Seventh Circuit’s treatment of traditional and vindictive action equal protection claims).

In this casc, defendants argue that Panthera’s equal protection claim fails as a matter of law
because he cannot show that he was “treated differently than someone who is prima facie identical in all
relevant respects.” Def. Br., p. 7. Purze v. Village of Winthrop Harbor, 286 \..3d 452, 454-55 (7"

Cir. 2002), As stated earlicr, Panthera was accused of several incidents of insubordination and
disloyalty between June 28 and July 6, 2000. He had a prior record of discipline including two
suspensions and two written reprimands, and he was offered a 30-day suspension in lieu of going
before the Board of Fire and Police Commissioners, which he declined. Def. Facts 4100.

Panthera identifies five officers who he claims engaged in similar or worse conduct but received
better treatment: Officer Kenncth Dangman, Sergeant Robert Johnson, Officer Daniel Miller, Officer
James Sheridan and Officer James Chresaidos. Pl. Facts ff] 108-12. Dangman cngaged in similar
misconduct by violating a direct order to appear before Capt. Vordercr, and he also had a prior
disciplinary record. However, Dangman also received similar punishment; he was offered a 30-day
suspension in lieu of dismissal. Sgt. Johnson engaged in misconduct similar to Panthera by failing to
follow the orders of his superiors, which a reasonable jury could view as insubordination, and by

violating a direct order to stay oul of a particular tavern. And he had a prior record of discipline and

18



Beginning on July 10, 2000, Capt. Vorderer interviewed various members of the Department
about Panthera. Panthera claims that throughout his career with the Department, he only received a
single one-day suspension and a single written reprimand. Pl. Facts 480. Panthera’s persomel file,
however, indicates that he received a written reprimand on May 8, 1998 for negligently driving a police
car; a one-day suspension on October 8, 1998 for negligently driving a police car without a seat belt; a
written reprimand on May 5, 1999 for failing to appear in court on a DUI case; a one-day suspension
on May 27, 1999 for failing to make an arrest; and a written reprimand on June 29, 1999 for again
failing to appear in courl, DX 2, Bates No. 373-79. Panthera also claims that Lt. Simon placed two
made-up disciplinary memos in his file: a June 20, 2000 memo stating that Panthera’s radio
transmissions were too scratchy and a June 27, 2000 memo stating that Panthera was onc minute late
to roll call. Pl. Facts (82; PX V. However, there is no cvidence in the record that Panthera did not
engage in the cited misconduct, or that the memos werc only placed in his file to build up his disciplinary
record.

On August 9, 2000, Panthcra was given a Notice of Interrogation informing him that the
Department was commencing an investigation into three areas of alleged misconduct: (1) alleged
insubordinate conduct in connection with the handling of the Service Merchandise call with Lt. Raglione
on Junc 28, 2000; (2) alleged insubordinate conduct in Lt. Simon’s office on June 30, 2000 when
Officer Panthera communicated his concerns about Lt. Raglione’s handling of the call; and (3) alleged

insubordinate conduct in connection with the Christopher Foltz teraction on July 6, 2000. PI. Facts

4/83; PX D. On August 16, 2000, Panthera was interrogated on these three subjects. Pl. Facts 84.



Clark, supra. Moreover, Panthera’s own union representatives indicated that Panthera received an
order to report to Capt. Vorderer. Officer Dennis Twomey stated that he was with Panthera when he
tumed in his cquipment on July 11 and that Lt. Spellman told him to call Capt. Vorderer that aflemmoon
at 3:00. DX 2, 1/10/01 Board Tr., p. 23, Bates No. 41. And sometime thereafter, Panthera leit

Officer Pat Barron a voice mail message asking him to “advise the Captain that he did receive his
message and that he wishes to consult counsel prior to coming in.” DX 2, Board Tr., p. 114.

Panthcra makes much of the fact that Lt. Spellman told him that he was placed on
administrative leave and was not supposed to be around the station. Pl. Br., p. 45. But this docs not
explain why Panthera never personally called Capt. Vorderer on July 11 as instructed, which would not
Tequire him to enter the station. For similar reasons, Panthera’s arguments about the Illinois Peace
Officers Disciplinary Act are also unavailing. The Act provides that an officer “shall have the nght to be
represented by counsel of his or her choosing and may request counsel at any time before or during
interrogation.” 50 LLCS 725/3.9. This provision might have applied if Panthera had actually gone to
the Captain’s office and discovered the purpose of the meeting. But he never even bothered to
personally call Capt. Vordercr to state that he would be seeking representation prior to coming into the
office. See, e.g., Haynes v. Police Board of the City of Chicago, 293 Ill. App. 3d 508, 512-13, 688
N.E.2d 794, 798 (1997) (‘“[a] police officer does not have the prerogalive of actively disobeying an
order from a superior while the officer subjectively determines whether the order is lawful, valid or
reasonable because such a practice would thwart the authority and respect which is the foundation of
the effective and efficient operation of a police force and destroy the discipline necessarily inherent in a

paramilitary organization such as the police department”). And the fact that Panthera eventually

24



Miauie Onder Farm (06°97)

United States District Court, Northern District of Minois

Jame of Assign ’ Sitting Judge if Other
“rieMagbirateJuuge | ___Matthew F. Kennelly than signed Jude
CASE NUMBER 01 C 3059 DATE 10/10/2002
CASE Panthera vs. Village of Oak Lawn
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintifY, and (h) state briefly the nature
of the motiun being presented. ]

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of | use listing in “Motion” box above.]

(2) qa Brief in support of motion due

(3) oOo Answer brief to motion due. Reply to answer bricfdue___

{4) o Ruling/Hearingon_—ssetfor_ at

(5) 0 Status hearing[held/continucd to] [set for/re-set for}on__—sset for at.

{6) o Pretrial conference[held/continned to] {set for/re-set for] on setfor at.

(7) Oo Trial[set for/re-set foron == at_—

(8) Oo [Bench/Jury trial] [Hearing] held/continued toa.

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
Orrcp4(m) OLocal Rule 41.1 OFRCP41(a)(1) [ FRCP41(a)(2).

go [Other docket entry] For the reasons set forth on the attached order, defendant’s motion for

summary judgment (32-1) is granted as to Count 3 but is otherwise denied, and Panthera’s motion for |
partial summary judgment (40-1) as to Count 3 is denied. On the Court’s motion, the date for filing the
final pretrial order is extended to 11/8/02. No further extensions of that date will be pennitted.

di) @ [For further detail sec order attached to the original minute order.]

No notices required, advised in open court. ‘Document:
Nungher

No notices required.
ea number of notices:

Notices mailed by judge’s staff,

e ie " &
Notified counsel by telephone. OTe doce 0?
A | Pocketing to mail notices.

Mail AQ 450 form. ) A
. docketing deputy initials

Copy ta judge/magistrate judge.

date mailed notice
courtroom,

OR deputy's
initials

Date/time received in
central Clerk's Office railing deputy initials



a Protected Specch

Under the Connick-Pickering test, statements are protected under the First Amendment if they
may be “fairly characterized as constituting speech on a matter of public concern.” Connick v. Myers,
461 U.S. 138, 146 (1983); Pickering v. Board of Education of Township High School District
205, 391 U.S. 563 (1968). To involve a matter of public concern, speech must “rclat[c) to any matter
of political, social, or other concern to the community.” Connick, 461 U.S. at 146. If this requirement
is met, the court applies the Pickering balancing test to determine whether “the interests of [the
plaintiff], as a citizen, in commenting upon matters of public concern outweigh the interests of the
[Village], as an employer, in promoting the efficiency of the public services it performs through its
employees.” Kuchenreuther, 221 F.3d at 973 (quoting Connick, 461 U.S. at 142) (internal
quotations omitted).

Defendants argue that Panthera did nol make any statements on matters of public concern
which summarily defeats his First Amendment claim. According to defendants, Panthera’s statements
on June 28, June 30 and July 6, 2000 all related to “private disputes with his supervisor or private
criticisms of another officer; and such statements on matters of solely a personal interest arc not
protected by the First Amendment.” Def. Br., p. 3. Panthera insists that he was speaking out about
policc and public safety, and about the constitutional rights ofa detainee. Pl. Br., p. 20.

i, June 28 and 30, 2000

On June 28 and 30, 2000, Panthcra complained that Lt. Raglione responded to the Service

Merchandise call in a manner that put himself, other officers and civilians at risk. Specifically, Panthera

(1) thought Lt. Raglione acted unprofessionally by flirting with the female kcyholder and making “goo

ll



56(c). In determining whether there is a genuine issuc of fact, we view the evidence and draw all
reasonable inferences in favor of the patty opposing the motion. Anderson v, Liberty Lobby, Inc.,
477 US. 242, 255 (1986). When cross motions are filed, we apply the same standard to each motion.
Stimsonite Corp. v. NightLine Markers, Inc., 33 F. Supp. 2d 703, 705 (N.D. Tl], 1999).
A. Section 1983 Claims

In Counts 1 and 2 of the complaint, Panthera alleges that defendants violated 42 U.S.C, §1983
by depriving him of rights guaranteed by the Constitution while acting under color of state law. See
Brown v. City of Lake Geneva, 919 F.2d 1299, 1301 (7 Cir, 1990); Limes-Miller v. City of
Chicago, 773 F. Supp. 1130, 1135 (N.D. TI. 1991). Specifically, Panthera claims that he was
retaliated against for exercising his rights under the First Amendment, and singled out for differential
treatment in violation of the Equal Protection Clause. The Court addresses each argument in tum.

1. First Amendment Claim

In reviewing a §1983 retaliation claim based on the First Amendment, a court must engage in a
three-step analysis:

First, the court must determine whether the plaintiff's speech was constitutionally

protected. Tf'so, then the plaintiff must prove that the defendant's actions were

motivated by the plaintiff's constitutionally protected speech. Finally, if the plaintiff can

demonstrate that his constitutionally protected speech was a substantial or motivating

factor in the defondant’s actions, the defendant is given the opportunity to demonstrate

that it would have taken the same action in the absence of the plaintiff's exercise of his

rights under the First Amendment.

Kuchenreuther v. City of Milwaukee, 221 F.3d 967, 973 (7 Cir. 2000) (quoting Kokkinis v.

Ivkovich, 185 F.3d 840, 843 (7" Cir. 1999)).

10



retrieved Capt. Vorderer’s voice mail message which, he says, did not include any specific instruction
to report to the Captain’s office. PI. Facts 57-58; Pl. Resp. to Facts 78. In response to the

envelope and voice mail message, Panthera contacted union officials to discuss why he had to go to the
station, Def. Facts 4784-85.

Qn the morning of July 11, 2000, Panthera reported to the station along with a union
representative and turned in his star, badge and ID to the watch commander on duty, Lieutenant
Spellman. Capt. Vorderer worked aftemoons and was not in the station yet when Panthera arrived.
According to Panthera, Lt. Spellman was unable to answer his questions about the situation and
suggested that Panthera talk to Capt. Vorderer. Pl. Facts 61. Lt. Spellman states, however, that he
specifically instructed Panthera to call Capt. Vorderer later that day to make an appointment to see
him. DX 6, p. 20; Spellman Dep., p. 19. The parties agree that Lt. Spellman told Panthera that he was
not allowed to be present at the station, though defendants qualify that Panthera could be there if he had
business to conduct. P1. Facts 462; Def. Resp. to Facts 62.

On July 14, 2000, Panthcra and his union representatives met with Capt. Vorderer. Panthera
was informed that the Department was commencing an investigation into his conduct and that Cluef
Nouk had placed him on administrative duties status so that he would be present in the station in case
they needed to ask him any questions relating to the investigation. Panthera was assigned to work with
Lieutenant Smith and was responsible for compiling domestic violence statistics, completing front desk
duty and performing various other tasks, all of which Panthera describes as “tedious.” Def. Facts

488-89; Pl. Facts 174. However, at all times prior to his discharge, Panthera received his full salary

and benefits. Def. Facts 490-92.



Des Plaines, 151 Il.2d 419, 427, 603 N-E.2d 477, 480-81 (1992). Second, the court must

determine whether the findings of fact “provide a sufficient basis for the agency’s conclusion that cause
for discharge does or does not exist.” Kappel, 220 Il, App. 3d at 588, 580 N.E.2d at 1320. “[T]he
agency’s decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to
the requirements of service.” Krocka, 327 Ill. App. 3d at 46, 762 N.E.2d at 586.

Panthera claims that the Board’s decision to terminate his employment was against the manifest
weight of the evidence, Generally, an administrative agency’s findings of fact are considered prima
facie truc and correct, 735 TLCS 5/3-110; Krocka, 327 Ill. App. 3d at 46, 762 N.E.2d at 586-87.

“Only if, after revicwing the evidence in a light most favorable to the Board, we determine that no
rational trier of fact could have reached the conclusion reached by the Board are we able to overturn a
decision under this standard.” /d. (quoting Chief Judge of Circuit Court v. Americun Federation of
State, County and Municipal Employees, Council 31, AFL-CIO, 153 Ml. 2d 508, 514, 607 N.E.2d
182, 185 (1992))

The Board found that Panthera was insubordinate on June 28 and 30, 2000 by ridiculing and
disobeying an order from a superior officer; that he was disloyal on July 6, 2000 when he criticized
another officcr’s actions in pepper-spraying a detainec; and that he was insubordinate on July 10, 2000
by disobeying a direct order to report to Capt. Vorderer. DX 2, Bates No. 251-54. On the first four
charges, Panthera argucs primarily that they were insufficient in and of themselves to justify his
termination. Pl. Br., pp. 39, 40. In any event, the evidence in the record supports the Board’s findings
on these charges. Lt. Raglione testified that Panthera failed to stay by him as directed during the

Service Merchandise call, and Panthera himself admits that he ended up scarching the warehouse alone

21



determination is not arbitrary or unrcasonable, and does not involve the imposition of discipline
unrelated to the needs of service, it will stand even if this court considers another sanction more
appropriate”) (quoting Kloss v. Board of Fire and Police Commissioners of Village af Mundelein,
96 IIL. 2d 252, 258, 449 N.E.2d 845, 849 (1983)). As stated earlier, the Court cannot say that the
Board selected an inappropriate sanction for Panthera and will not reverse the Board’s decision on this
record.
CONCLUSION

For the reasons stated above, defendants’ motion for summary judgment [docket item #32-1]
is granted as to Count 3 but is otherwise denied, and Panthera’s motion for partial summary judgment
[docket item #40-1] as to Count 3 is denied. On the Court’s motion, the date for filing the final pretrial

order is extended to November 8, 2002. No further extensions of that date will be permitted.

/ WME UMLG,

MATTHEW F. KENNELLY
United States District Judge

Date: October 10, 2002

27



own without authorization. Def. Facts | 28-30. Panthera admits that Lt. Raglione instructed him to
wait for him but states that he followed that instruction. PJ. Resp. to Facts 429. At the same time,
however, Panthera also adnils that alter receiving the instruction, he ended up searching the building on
his own without Lt. Raglione’s approval. According to Panthera, “he acted consistent with how he
acted on every other similar call, and. . . direction from Lt. Raglione was neither requested nor
expected under the circumstances.” /d. 428-30. While searching the building, Panthera lost sight of
Lt. Raglione; however, he did communicate with the Lieutenant at least once by radio and made several
additional attempts to raisc him without success. Pl. Facts 22. When Panthera retuned, Lt. Raglione
told Panthera that he did not know where he was and had been waiting for him. Def. Facts. 31-32.
Alter leaving the building, Lt. Raglione told Panthera that he wanted to discuss the fact that
despite Panthera’s report to the contrary, Lt. Raglione did not think the building was in fact secure
when the lights came on inside the warehouse. Lt. Raglione also wanted to discuss Panthera’s failure to
wait for him as instructed. Def. Facts 433. Panthcra claims that throughout the incident, Lt. Raglione
was laughing and giggling with the Service Merchandise keyholder and “making [goo goo] eyes” at her.
PI. Facts 421. Panthera maintains that he was concerned about this behavior because “it might be
repeated at future calls where the safcty of the public could be at stake.” Jd. 23. Panthera told Lt.
Raglionce that he had tried to reach him several limes by radio, to which Lt. Raglione responded that
Panthera should have waited for him as instructed. Panthera Dep., pp. 50-51. Panthcra did not want

to argue with the Lieutenant and ultimately returned to the station where he went directly to Lt. Simon’s

office to discuss the alarm call. PI. Facts 425.



ii, July 6, 2000

The Court next considers Panthera’s statements to detainee Foltz on July 6, 2000. Panthera
claims that in the interest of completing a difficult booking process, he told Foltz that he could sue the
Department if he was pepper-sprayed for no reason, Defendanis admit that Panthcra may have stated
that Foltz could -- as opposed to should — file a lawsuit, which would be entirely proper. According to
defendants, however, Panthera also said that the pepper-spraying was “bullshit” and that the officer in
question had no right to spray Foltz. Panthera disputes that he made any such statements, raising a
genuine issue of fact as to what Panthera actually said on July 6, 2000. But even Panthera’s version of
events, if believed, does not constilule protected speech. Panthcra himself insists that he was merely
trying to defuse a volatile situation and was not making any assessment about the actual propriety of the
officer’s conduct, of which he had no personal knowledge. PI. Facts 51. The Court does not see
how routine advice given during the booking process and designed solely to facilitate that process is a
matter of public concern. The general existence of constitutional rights may be of significance to the
public, but Panthera’s statements to Foltz in this context were not. See, e.g., Gonzalez v. City of
Chicago, 239 F.3d 939, 941 (7" Cir. 2001) (officer who completed routine official reports as part of
his regular job duties did not speak on a matter of public concern even though the reports contained
information that was of a public concern).

iii. Y2K Memo

Panthera also claims that he was retaliated against for wnting a memo in December 1999

expressing his belief that the Department and the Village were not adequately prepared or trained for

the Y2K transition. Pl. Facts 6, Assuming, arguendo, that this mcmo addressed a matter of public

14



a Qualified Immunity

Defendants do not present any argument regarding whether Panthera’s protected speech on
June 28 and 30, 2000 motivated their decision to seek his suspension somc two weeks later. Nor do
they discuss whether Panthera would have been recommended for suspension and discharge
notwithstanding his allegedly protected speech. Accordingly, defendants arc not entitled to summary
judgment on Count 1 of the complaint unless they can show that they are protected by qualified
immunity, Qualified immunity “shiclds government officials performing discretionary functions from
liability for civil damages ‘insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Lrwin v, Daley, 92 F.3d 521,
525 (7" Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In evaluating this
defense, the court must address two questions: (1) “whether the plaintiff has asserted a violation of a
constitutional right at all”; and (2) “whether the plaintiff has demonstrated that the applicable
constitutional standards were clearly established at the time in question.” Jd.

The Court has already determined that Panthera raised a genuine issue of fact regarding the
protected nature of his speech on June 28 and 30, 2000, which satisfies the first part of the qualified
immunity test. Defendants nonetheless argue that Panthera fails the second part of the test because he
“cannot show that the standards in question at the time Defendants sought Plaintiff's termination clearly
established thal Defendants violated the First Amendment.” Def, Br., p. 6. The Court disagrees. “It
has been well established for many years in this Circuit that a public employer may not rctaliate against
an employce who exercises his First Amendment speech rights.” Delgado, 282 1'.3d at 520. See also

Gustafson I, 290 F.3d at 913 (public employer could not have thought it was entitled to punish an

16



summary judgment on al] of Panthera’s claims. Panthera, in turn, has filed a cross-motion for summary
judgment on Count 3, For the reasons set forth below, defendants’ motion is granted in part and
denied in part, and Panthera’s motion is denied.
FACTUAL BACKGROUND

Panthera was hired by the Oak Lawn Police Department (the “Department”) as a patrol officer
in or around 1996. At that time, Houk was the Department’s Chief of Police, Vorderer was a Division
Chiel, Raglione was a licutenant and Simon was a watch lieutenant. Pl. Facts 4/4; Def. Facts 44-10.
All of these individuals held ranks superior to Panthera, Prior to June 2000, Chief Houk thought
Panthera was a “good officer” who was “very attentive” and “was doing his job.” Pl. Facts 4/5.
A. The Service Merchandise Call

On Jume 28, 2000, Panthera responded to a call at the Service Merchandise warchouse in Oak
Lawn aftcr an alarm went off. When he arrived, Lt. Raglione was already on the scene. In conducting
an exterior search of the warehouse with Lt. Raglione, Panthera determined that the first set of doors at
the entrance was unlocked, but that a second set of glass doors and the sieel cage protecting the
warehouse entrance were both locked. The officers returned to their respective squad cars and
Panthera radioed that the building was “sceurc ground level,” meaning that there was no form of entry
into the building. Lt. Raglione countered that transmission, however, because the lights had come on
inside the warehouse.

A Service Merchandise employee who had a key to the warehouse amived and unlocked the
doors for Panthera and Lt. Raglione. According to defendants, Lt. Raglione instructed Panthera to

“wait for him” or “stay by him” after entering the warehouse, but Panthera searched the building on his



reported to Capt. Vorderer’s office on July 14, 2000 did not cure his failure to report in a timely
manner, or to at lcast call the Captain on July 11 as instructed. On these facts, the Court cannot say
that the Board’s finding that Panthera was insubordinate by failing to report to Capt. Vorderer was
against the manifest weight of the evidence.

The only remaining question is whether Panthera’s insubordination constituted cause for his
termination. The Board has “considerable latitude” and “considerable discretion” in determining what
constitutes cause for discharge. Krocka, 327 Ill. App. 3d at 47, 762 N.E.2d at 587. “Cause” for
discharge has been defined as “some substantial shortcoming which renders the cemployce’s
continuance in office in some way detrimental to the discipline and efficiency of the service and which
the law and sound public opinion recognize as good cause for his no longer holding the position.” Jd.
(quoting Kappel, 220 Ill. App. 3d at 589, 580 N.E.2d al 1321). The Board found Panthera guilty of
insubordination on three separate occasions, including disobeying a direct order from Capt. Vordercr.
Illinois courts have held that ‘disobedience to a proper order given by a superior officer is cause for
discharge.” See Nelmark v. Board of Fire and Police Commissioners of City of DeKalb, 159 Ul.

App. 3d 751, 759, 512 N.E.2d 1021, 1026 (1987), Norman y. Board of Fire and Police
Commissioners of City of Zion, 245 Ill. App. 3d 822, 830, 614 N.E.2d 499, 504 (“in a police
department the chicfmust command the respect and obedience of all officers in order to establish and
maintain a leadership role”).

The Court is mindful of the fact that the allegations regarding Capt. Vorderer occurred in July
2000 but did not appear in a charge until November 2000, even though Panthera was formally

interrogated on the other four charges in August 2000. In addition, Panthera did eventually comply

25



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CARLOS PANTHERA,
Plaintiff,

Vs. Case No. 01 C 3059
VILLAGE OF OAK LAWN, CHIEF JAMES
HOUK, CAPTAIN VORDERER,
LIEUTENANT TOM SIMON, LIEUTENANT
FRANK RAGLIONE and BOARD OF FIRE
AND POLICE COMMISSIONERS JOHN

C. FRIEL, WILLIAM EGAN and

ROBERT BANAS.

wee eve eve eevee yee ee

Defendants, sk

Fe. He

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff Carlos Panthera filed a complaint against defendants Village of Oak Lawn, Chicf James
Houk, Captain Terrence Vordercr, Licutcnant Tom Simon, Licutcnant Frank Raglionc and Board of
Fire and Police Commissioners John C. Fricl, William Egan and Robert Banas, alleging that defendants
violated 42 U.S.C, §1983 by discharging him from the police force in retaliation for his exercise of his
First Amendment ltee speech rights (Count 1) and by subjecting him to differential treatment in violation
of the Equal Protection Clause (Count 2), and that the Board of Fire and Police Commissioners’

decision io discharge him was against the manifest weight of the evidence (Count 3). Defendants! seck

} Tn his response to, and cross-motion for summary judgment, Panthera voluntanly
dismisses his claims against defendants Raglione and Simon. Pl. Resp., p. 35.



goo eyes” at her; (2) believed that Lt. Raglione improperly failed to draw his weapon or respond to his
radio because he was too busy flirting with the keyholder; and (3) disagreed with Lt. Raglione’s
decision to call out the fire department. In addition to these complaints, Panthera also (1) admitted to
having a personal conflict with Lt. Raglione, who he felt was not treating him fairly; (2) indicated his
belief that Lt. Raglione showed up at his calls too frequently and “more or less rides me”; (3) accused
Lt. Simon of showing favoritism towards Lt. Raglione because of his rank; (4) stated {hat he (Panthera)
would have been disciplined if he had failed to draw his gun or investigate the scene; and (5) in that
regard, asked whether another officer had been reprimanded for leaving the scene of a burglary two
weeks earlier. Panthera admits that during the conversation, he raised his voice, became argumentative,
called Lt. Raglione by his first name, accused Lt. Raglione of giving him an illegal order and told Li
Raglione that he respected his rank but did not respect Lt. Raglione as a man.

Whether an cmployee’s speech addresses a matter of public concem must be determined by
the “content, form, and context of a given statement, as revealed by the whole record.”
Kuchenreuther, 221 F.3d at 974-75. Hore, Panthera apparently expressed concern about the safety
of fellow officers and civilians if Lt. Raglione behaved in a similarly unprofessional mamner in the future.
PL. Br,, p. 20. Public and officer safety are certainly matters of public concem. See Delgado v. Jones,
282 F.3d 511, 517 (7" Cir. 2002). It is true that the majority of Panthera’s statements reflect his
personal conflict with Lt. Raglione, his difference of opinion as to the Lieutenant’s decisions during the
call, and his concem about favoritism with respect to disciplinary action. However, “[a] personal
aspect contained within the motive of the speaker docs not necessarily remove the speech from the

scope of public concern.” Gustafson v. Jones, 290 F.3d 895, 908 (7" Cir. 2002) (“Gustafson IP”)

12



concern, there is absolutely no evidence that it was in any way related to Panthera’s suspension and
ultimate discharge. See Gustafson, 290 F.3d at 906 (plaintiffs “must prove that their specch played at
least a substantial part in the employer's decision to take an adverse employment action against them”).
Thus, Panthera cannot claim retaliation arising from the Y2K memo.

Tn sum, Panthera has raised a genuine issue of fact as to whether he engaged in protected
speech on June 28 and June 30, 2000, but he cannot sustain a First Amendment retaliation claim based
on statements he made on July 6, 2000 or in his Y2K memo.

b. Pickering Balancing

Having found a genuine issue of fact as to whether Panthera engaged in protected speech on
June 28 and 30, 2000, the Court next considers whether Panthera’s interests, as a citizen, in
commenting upon matters of public concern outweigh defendants’ intcrests in “promoting the efficiency
of the public services [the Village] performs through its employees.” Kuchenreuther, 221 F.3d at 973.
Defendants argue that Panthera was sarcastic and disrespectful in spcaking with Lt. Raglione and Lt.
Simon, which was “reasonably likely to create problems in discipline or cause disharmony.” Def. Br.,
p. 5; Campbell v. Towse, 99 F.3d 820, 829-30 (7" Cir. 1996) (the need for discipline and loyalty is
especially important in law enforcement organizations). But Panthera disputes that he was disruptive or
disrespectful, Pl. Br., p. 27, which precludes entry of summary judgment on this basis. Gustafson LI,
290 F.3d at 909 (“Pickering balancing is not an exercise in judicial speculation. While it is true that in
some cascs the undisputed facts on summary judgment permit resolution of a claim without a trial, that

means only that the Pickering elements are assessed in light of a record frce from material factual

disputes”).