No. 01 C 7007 Page 4

misconduct to her superiors. It does not appear, however, that it was a routine task of
plaintiff's job to make these reports. Under the facts alleged, plaintiff had to come forward
and report what she had witnessed, in direct conflict with a de facto department policy of
remaining silent. This act of reporting, while generally required of all officers, did involve
independent discretion and judgment. Until we know more about the day-to-day routine of
plaintiff's former position, we cannot say as a matter of law that plaintiff has failed to identify
speech protected by the First Amendment. The other elements of this First Amendment
retaliation claim are sufficiently alleged and it should go forward.
State Claim

Plaintiff has also alleged retaliatory discharge, a state tort claim, against the City. The
City claims immunity from this claim. A Jocal government unit may be liable in tort, but the
Minois legislature has conditioned potential liability by enactin, g the Local Governmental and
Governmental Employees Tort Immunity Act (“the Act”), 745 ILCS 10/1-101. The City seeks
shelter under section 2-201 of the Act: “...a public employee serving in a position involving the
determination of policy or the exercise of discretion is not liable for an injury resulting from
his act or omission in determining policy when acting in the exercise of such discretion even
though abused.” 745 ILCS 10/2-201. While section 2-201 refers to a public employee, local
governments may also be shielded from immunity under this provision. 745 ILCS 10/2-109
(a local public entity is not liable for an injury resulting from an act or omission of its
employee where the employee is not liable).

In applying section 2-201, the Illinois Supreme Court requires that conduct be both an

exercise of discretion and a policy determination to garner immunity. Harineck v. 161 North



No. 01 C7007 Page3

workers she was fired.

Plaintiff brings her constitutional claim under 42 U.S.C. § 1983, To properly state a
section 1983 claim against a municipality, plaintiff must allege a constitutional deprivation
caused by a governmental policy, practice or custom. Monell y. Dept. of Social Services, 436
U.S. 658, 691 (1978). To properly claim a constitutional deprivation, plaintiff must identify
speech that is protected by the First Amendment. Connick v. Myers, 461 U.S, 138 (1983). As
a public employee, plaintiff's speech is protected if she speaks as a citizen upon matters of
public concern. Jd at 147, Whether plaintiff’s speech addresses a matter of public concern is
determined by the content, form, and context of her alleged statements. Id.

It is well settled that police brutality and misconduct are matters of public concern.
Delgado v. Jones, 282 F.2d 511, 519 (7" Cir, 2002); Gonzalez v. City of Chicago, 239 F.3d 939,
941 (7 Cir. 2001); Branton v. City of Dallas, 272 F.3d 730, 740 (5" Cir. 2001). A police
department employee’s report of police brutality and misconduct comes under the protection
of the First Amendment if it is a product of some independent discretion or judgment.

Delgado at 519; Branton at 743; Pietrusiak v. Kammerer, 1999 U.S.Dist.LEXIS 603 * 33

(N.D.IIL 1999). The City relies on Gonzalez to support its contention that plaintiff's report is

not protected by the First Amendment since she was under a duty as a police officer to report

misconduct The plaintiff in Gonzalez was an employee of the police department’s Office of

Professional Standards, however, and as such his daily routine involved creating routine

official reports that required opinions on police misconduct and, reporting misconduct, was
¥

a mere discharge of his employment duties. Jd.

Here we have a plaintiff who was under a general duty as a police officer to report


No. 01 C 7007 Page 5

Clark Street Ltd., 181 H.2d 335, 343, 692 N.E.2d 1177, 1182 (1998). Discretionary acts are
those which are unique to a public office and involve the use of discretion as to the propriety

of the act. Snyder vy. Curran Township, 167 Ill.2d 466, 474, 657 N.E.2d 988, 993 (II. 1995).

An act is a determination of policy if it requires a balancing of interests and judging which
solution would best serve each of those interests. Harineck 181 Jll.2d at 342, The City’s
alleged wrongdoing in this case is both discretionary and a determination of policy, and fits
within the scope of the Immunity Act.

Plaintiff argues that while the City’s alleged activity is most likely discretionary and a
determination of policy, the City cannot claim immunity since plaintiff has alleged that the
conduct is willful and wanton. However, there is no willful and wanton exception to the
immunity provided in section 2-201 of the Immunity Act. In re Chicago Flood Litigation, 176
TIL.2d 179, 196, 680 N.E.2d 265 (IIL. 1997). We recognize that the federal courts in this circuit
have carved out an exception to the rule in In re Chicago Flood Litigation. See Payne for
Hicks vy. Churchich, 161 F.3d 1030 (7" Cir. 1998); Williams v. City of Elgin, 1999
U.S.Dist.LEXIS 6463 (N.D.IIl. 1999). Where In re Flood was not cited in the parties’ briefs,
this court has also made an exception. See Hanania y. Loren-Maltese, 56 F.Supp.2d 1010, 1014
(N.D.IIl, 1999). It is now clear that this exception is in conflict with the Illinois Supreme
Court’s reading of the Immunity Act, and we are bound to follow the highest state court’s
reading of state statutes. O’Brien v. Skinner, 414 U.S, 524, 531 (1974). The City is immune

from plaintiff's state claim.

Damages

In both counts of her complaint plaintiff seeks punitive damages. The City is correct


Minute Order Form (06/97)

(9

. United States District Court, Northern District of Illinois
Name of Assigned Jud; Sitting Judge if Oth
. we Magisn ate Judge James B. Moran than Assigned Sader
CASE NUMBER 01 C 7007 DATE 4/29/2002
CASE Sheila Zinnermon vs. City of Chicago Dept of Police
TITLE

of the motion being presented.j

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due,
(4) Oo Ruling/Hearingon____esetfor__—_at
(5) a Status hearing{held/continued to] [set for/re-set for]on__setfor____att
(6) im Pretrial conference[held/continued to] [set for/re-set for]on__——setfor_— se at_
(7) oO Trial[set for/re-set for]on__at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to__at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (General Rule21 OFRCP41(a)(1) OO FRCP41(a)(2).

remaining request for punitive damages. Status hearing set for May 21, 2002 at 9:15am.

ab ff [For further detail see order attached to the original minute order.]

qo) [Other docket entry] Enter Memorandum Opinion and Order. Defendant City of Chicago’s motion
to dismiss is granted in part and denied in part. We dismiss count II of plaintiffs complaint and strike any

No notices required, advised in open court,

noti ired.
No notices required. number of notices

Notices mailed by judge's staff. PR 3 0
208

Notified counsel by telephone. date docketed.

Cx
| rn

wv | Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.

courtroom
WAH deputy’s _—
initials ee —
Date/timé teceived in’ **
central Clerk’s Office

‘mailing deputy intiats



No, 01 C 7007 Page 6

in its assertion that punitive damages cannot be obtained from a municipality. City v. Newport
y. Fact Concerts, Inc., 453 U.S. 247 (1981).
CONCLUSION
For the above reasons, defendant City of Chicago’s motion to dismiss is granted in part
and denied in part. We dismiss count II of plaintiff’s complaint and strike any remaining

request for punitive damages,

A oe B. Mare —

JAMES B. MORAN
ior Judge, U. S. District Court

Qa’ 27 2002.


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

SHEILA ZINNERMON,
Plaintiff,
vs.

No. 01 C-7007 Metergg

CITY OF CHICAGO DEPARTMENT Re & 20g

OF POLICE,

weve eevee ye ew

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Sheila Zinnermon brings this action against the City of Chicago (City) alleging
retaliatory discharge and violation of her First Amendment right of free speech. The City has
moved to dismiss the claims against it. For the following reasons, the City’s motion is granted
in part and denied in part.

BACKGROUND

The facts of this case are taken from plaintiffs complaint. Plaintiff worked as a police
officer with the Chicago Police Department (C.P.D.) on probation from December 13, 1999
through December 13, 2000. On July 21, 2000, plaintiff reported to her superior officer an
incident in which she witnessed her partner and another officer use excessive force against an
arrestee. As instructed by her superior, plaintiff filled out and filed a written report regarding
the incident. A few weeks later plaintiff was accused of making a false report, and on August
14, 2000, she was interrogated by the Office of Professional Standards. Plaintiff answered
questions under duress and was told that any admissions or statements she made could be used
as a basis for her discharge.

Ina letter postmarked December 14, 2000, plaintiff was informed that her employment
was terminated as of the close of business on December 12, 2000, one day prior to the date she

would have completed her probationary period. Had plaintiff remained in her position past


No. 01 C 7007 Page 2

at period, she would have been afforded all the rights and benefits of a contracted police
officer, including representation by the Fraternal Order of Police. Plaintiff filed this suit in
September, 2001, alleging that her discharge occurred as retaliation for her report of her
fellow officers.
DISCUSSION

In deciding a Fed. R. Civ. P. 12(b)(6) motion to dismiss, we accept as true all well-
pleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiff's
favor. Midwest Grinding Co, v. Spitz, 976 F.2d 1016, 1019 (7" Cir. 1992). A claim survives
if relief could be granted under any set of facts that could be proved consistent with the
allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957). While a complaint does not need to specify the correct legal theory to
withstand a Rule 12(b)(6) motion, the complaint must allege all elements of a cause of action
necessary for recovery. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert.
denied, 475 U.S. 1047 (1986).
Federal Claim

In count I of plaintiff’s complaint she alleges that the City, its police department, its
Office of Professional Standards, and its staff, have de facto policies, practices and/or customs
of failing to properly train, supervise, discipline, counsel and control police officers who
commit misconduct, and a police code of silence which causes officers to remain silent or lie
in the face of misconduct. Plaintiff claims that she went against these de facto policies and
reported police misconduct as a citizen acting on a matter of public concern. Her

constitutional rights were violated, she claims, when as a result of her reports against her co-