Sherry v. City Of Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS SHERRY, )

)

Plaintiff, )

) No. 18 C 5525

v. )

) Judge John Z. Lee

CITY OF CHICAGO, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Thomas W. Sherry, a current Chicago police officer, has sued the City of

Chicago (“the City”) under 42 U.S.C. § 1983, alleging that the City violated his

Fifth and Fourteenth Amendment rights when it placed him on restricted duty

status in 2009. The parties have filed cross-motions for summary judgment. For

the following reasons, Sherry’s motion is denied, and the City’s motion is granted.

I. Background

A. Facts1

Sherry joined the Chicago Police Department (“CPD”) as a police officer in

1997. Pl.’s L.R. 56.1 Stmt. Material Facts (“PSOF”) ¶ 3, ECF No. 81. In 2002, he

was assigned to CPD’s “Special Operations Section” (“SOS”), a city-wide unit

focused on investigating narcotic and gun-related crimes. Def.’s L.R. 56.1 Stmt.

Material Facts (“DSOF”), ¶¶ 3, 27, ECF No. 84. Three years later, in 2005, CPD

began “Operation Broken Oath,” an investigation into allegations that numerous

1 The following facts are undisputed or deemed admitted, unless otherwise noted.

SOS officers had engaged in misconduct, including false police reports, home

invasions, and theft. Id. ¶ 28. As a result of that investigation, on August 15,

2006, Sherry was relieved of his police powers, placed on restricted status, and

assigned to a desk job in the Alternate Response Unit (“ARU”). Id. ¶¶ 4, 5, 11.

In September 2006, the SOS scandal broke, and numerous officers,

including Sherry, were arrested and indicted with serious felonies. PSOF ¶ 6;

DSOF ¶ 31. The Cook County State’s Attorney’s Office then dropped all criminal

charges against Sherry and entered a nolle prosequi order on February 11, 2009.

PSOF ¶ 8; DSOF ¶ 8.

While Sherry’s criminal charges were pending, under the terms of his

release on bond, he was not able to perform the essential duties of his job as a CPD

officer. DSOF ¶ 7. As a result, Sherry took an unpaid leave of absence from CPD

from November 2006 to March 2009. PSOF ¶ 7; DSOF ¶ 8.

After the criminal charges against him were dropped, Sherry returned to

work in the ARU at his full salary; however, he remained stripped of his police

powers and forbidden from carrying a gun on duty. PSOF ¶ 9; DSOF ¶¶ 8–10. In

fact, in the decade-plus since Sherry returned to work, the CPD has never restored

Sherry’s full police powers, and Sherry has remained on desk duty with the ARU.2

PSOF ¶¶ 9–10; DSOF ¶ 5.

2 The City has moved to supplement the record on summary judgment with the fact

that it has now suspended Sherry without pay pending the resolution of charges that seek

Sherry’s discharge, which were filed with the Police Board. See Def.’s Mot. Supplement

Record on Summ. J., ECF No. 100. Sherry has opposed this motion. Id. Because these facts

are immaterial to the Court’s decision, the City’s motion is denied as moot.

B. Procedural History

Sherry initiated this lawsuit in August 2018, asserting that the City

deprived him of a protected property interest without due process of law in

violation of his Fifth and Fourteenth Amendment rights by placing him on

restricted duty status seemingly indefinitely without conducting an investigation

or giving Sherry an opportunity to be heard. See Compl., ECF No. 1; Pl.’s Mem.

Supp. Mot. Summ. J. (“Pl.’s Opening Br.”) at 1–2, ECF No. 80. Two months later,

in October of 2018, CPD’s Bureau of Internal Affairs served Sherry with a

notification of charges of misconduct—the first time since 2006 that the City had

informed him about any investigation into his time assigned to the SOS. See PSOF

¶¶ 16–17.

The City moved to dismiss Sherry’s complaint on statute of limitations

grounds, but Sherry invoked the “continuing violation doctrine” to argue that his

claims are timely. See Sherry v. City of Chi., No. 18 C 5525, 2019 WL 2525887, at

*3 (N.D. Ill. June 19, 2019). The Court dismissed Sherry’s claims stemming from

his suspension without pay from 2006 to 2009 as time-barred. Id. But as to his

current placement on restricted duty status, the Court held that, “accepting the

allegations in the complaint as true and drawing all inferences in Sherry’s favor,

the facts of this case are sufficient to satisfy the continuing-violation doctrine”

because, according to the complaint, “it appears that the City could have instituted

disciplinary proceedings at any time during the past eight years (and repeatedly

informed Sherry of its right to do so).” Id. The Court permitted Sherry’s Fifth and

Fourteenth Amendment claim to proceed because, at the pleading stage, “Sherry’s

delay in filing the complaint” did not seem “entirely unreasonable.” Id.

Now, each party has moved for summary judgment in its favor. See Pl.’s

Mot. Summ. J., ECF No. 79; Def.’s Mot. Summ. J., ECF No. 83.

II. Legal Standard

Summary judgment is appropriate where the evidence shows “that there is

no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial

burden of demonstrating the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then “come

forth with specific facts showing that there is a genuine issue for trial.” LaRiviere

v. Bd. of Trs. of S. Ill. Univ., 926 F.3d 356, 359 (7th Cir. 2019). To satisfy that

ultimate burden, the nonmoving party must establish “that a reasonable jury could

return a verdict in her favor.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–

73 (7th Cir. 2012); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(“[S]ummary judgment will not lie . . . if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.”).

Where, as here, the parties have filed cross-motions, the court “look[s] to the

burden of proof that each party would bear on an issue as trial.” Santaella v.

Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).

III. Analysis

A. Nature of Sherry’s Interest

When evaluating a due process claim like Sherry’s, a court asks “(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?” Simpson v. Brown Cty.,

860 F.3d 1001, 1006 (7th Cir. 2017). “For an interest to be constitutionally

protected, a plaintiff must have ‘a legitimate claim of entitlement to it’ rather than

‘a unilateral expectation of it.’” Makhsous v. Daye, 980 F.3d 1181, 1183 (7th Cir.

2020) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)).

“A protected property interest in employment can arise from a state statute,

regulation, municipal ordinance, or an express or implied contract.” Crull v.

Sunderman, 384 F.3d 453, 460 (7th Cir. 2004) (cleaned up). “In the employment

context, a plaintiff generally is required to show that the terms of his employment

provide for termination only ‘for cause’ or otherwise evince ‘mutually explicit

understandings’ of continued employment.” Cole v. Milwaukee Area Tech. Coll.

Dist., 634 F.3d 901, 904 (7th Cir. 2011) (citation omitted). “[T]he [protected]

interest must itself be substantive rather than procedural in nature.” Manley v.

Law, 889 F.3d 885, 890 (7th Cir. 2018). A plaintiff bears the burden of establishing

a protected property interest. Crull, 384 F.3d at 460.

Here, Sherry asserts that the Collective Bargaining Agreement (“CBA”)

between the City and the Fraternal Order of Police (the union to which Sherry

belongs) provides the contractual source of his protected property interest. See

Pl.’s Combined Mem. Opp’n Def.’s Mot. Summ J. and Supp. Pl.’s Mot. Summ J.

(“Pl.’s Combined Resp.”) at 2; DSOF ¶ 20. In particular, Sherry directs the Court

to § 8.1 of the CBA, which provides: “No Officer covered by this Agreement shall

be suspended, relieved from duty or otherwise disciplined in any manner without

just cause.”3 DSOF ¶ 22. Sherry also points to Department General Order 93-03

(“G.O. 93-03”), which provides:

[Officers’] failure [to comply with CPD rules, regulations,

directives, and orders] will be considered just cause for

disciplinary action . . . . At the same time, [CPD officers]

must be protected against false allegations of

misconduct . . . . Prompt, thorough investigations

will be conducted into allegations of misconduct to

establish facts which can absolve the innocent and

identify the guilty.

Pl.’s Ex. 2, G.O. 93-03 at 1, ECF No. 81-2 (emphasis added). Sherry argues that

his placement on restricted duty status was a disciplinary action, which the City

took without conducting a prompt, thorough investigation.4

3 Although three different CBAs covered the relevant period in this case, they all

contain this provision verbatim. See Def.’s Ex. 7, 2003–07 CBA at 10, ECF No. 84-8; Def.’s

Ex. 8, 2007–12 CBA at 8, ECF No. 84-9; Def.’s Ex. 9, Current CBA at 8, ECF No. 84-10.

4 Sherry also gestures toward a property interest in overtime, promotional

opportunities, the ability to work secondary employment, and the chance to seek law

enforcement positions with other departments, which he claims are not available to him as a

police officer on restricted duty status. See Pl.’s Combined Resp. at 8. Sherry argues that he

suffered an economic loss when he was deprived of these opportunities, and as such, the

constitution protects his interest in them. Id. However, while it is true that a “‘[p]urely

dignitary or otherwise nonpecuniary dimension[] of employment [is] not [a] property

interest[] protected by the due process clause of the Fourteenth Amendment,” that does not

make the converse true. See Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 530 (7th

Cir. 2000) (emphasis added). In other words, a protected property interest must involve a

pecuniary loss, but not all pecuniary losses evince a protected property interest. Because

Sherry has not pointed the Court to a source that “support[s] [his] claim[] of entitlement to

those benefits,” Sherry has failed to establish a property right to overtime, promotional

The City counters that the removal of Sherry’s police powers was not

discipline because the governing CBAs in 2006—when Sherry’s police powers were

originally removed—and in 2009—when Sherry was reinstated on restricted duty

status—did not place any explicit limits on the City’s ability to remove officers’

police powers. Those CBAs contrast with the current CBA (which became effective

in 2012), which is the first to require CPD to give an officer “written notification

of the allegations or events that have caused the Officer to be relieved of police

powers.” DSOF ¶ 23. According to the City, the change implies that officers

previously did not have any property interest in their police powers. The City also

points to a provision in all three relevant CBAs stating that CPD “retain[s] the

right to operate and manage its affairs in every respect,” including the “sole

discretion” to “hire, examine, classify, select, promote, restore to career service

positions, train, transfer, assign and schedule Officers.” DSOF ¶ 21. Thus, the

City asserts, its discretion to reassign Sherry to the ARU and remove his police

powers was not limited by contract, and Sherry’s interest in his police powers is

not protected by the constitution.

Neither party cites any legal precedent to illuminate whether Sherry’s

reassignment or the removal of his police officers constituted “discipline” within

the meaning of § 8.1 of the CBA. Nevertheless, the Court need not resolve that

issue, because the City correctly argues that Sherry’s claim is time-barred.

opportunities, the ability to work secondary employment, and the chance to seek law

enforcement positions with other departments. See Crull, 384 F.3d at 460.

B. Timeliness of Sherry’s Suit

Sherry’s § 1983 claim is governed by Illinois’ two-year statute of limitations

for personal injury claims. See Sherry, 2019 WL 2525887, at *2 (citing Kelly v.

City of Chi., 4 F.3d 509, 511 (7th Cir. 1993)). By contrast, as this Court previously

noted, federal law determines the date that Sherry’s cause of action accrued, and,

in general, a § 1983 claim accrues “when the plaintiff knows or should know that

his or her constitutional rights have been violated.” Id. (quoting Kelly, 4 F.3d at

511).

As he did at the motion to dismiss stage, Sherry invokes the continuing

violation doctrine, which is an equitable doctrine that tolls the statute of

limitations “until a series of wrongful acts blossoms into an injury on which suit

can be brought.” Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 801 (7th

Cir. 2008). But, crucially, the “continuing violation doctrine will apply to a series

of acts ‘only if their [unlawful] character was not apparent when they were

committed but became so when viewed in the light of the later acts.’” McDonough

v. City of Chi., 743 F. Supp. 2d 961, 970 (N.D. Ill. 2010) (quoting Moskowitz v. Trs.

of Purdue Univ., 5 F.3d 279, 282 (7th Cir.1993)). A plaintiff “may not sit back and

accumulate all the [unlawful] acts and sue on all within the statutory period

applicable to the last one” where “he knows or with the exercise of reasonable

diligence would have known after each act that it was [unlawful] and had harmed

him.” Moskowitz, 5 F.3d at 282.

The quintessential application of the continuing violation doctrine is in the

workplace harassment context. Limestone, 520 F.3d at 801. As the Seventh

Circuit has explained, “[t]he first instance of a coworker’s offensive words or

actions may be too trivial to count as actionable harassment, but if they continue

they may eventually reach that level and then the entire series is actionable.” Id.

(emphasis added). Furthermore, “[i]f each harassing act had to be considered in

isolation, there would be no claim even when by virtue of the cumulative effect of

the acts it was plain that the plaintiff had suffered actionable harassment.” Id.

In its prior opinion, the Court noted that “Sherry’s delay in filing the

complaint was not entirely unreasonable, and the City has not established that

the statute of limitations warrants dismissal of this claim, at least at the pleading

stage.” Sherry, 2019 WL 2525887, at *3 (emphasis added).5 That is because “a

complaint need not anticipate and overcome affirmative defenses, such as the

statute of limitations.” Sidney Hillman Health Ctr. of Rochester v. Abbott Labs.,

Inc., 782 F.3d 922, 928 (7th Cir. 2015). Now, however, at the summary judgment

stage, “the burden is on the plaintiff[] to present facts which, if true, would justify

equitable modification of the statute of limitations.” Hamilton v. Komatsu Dresser

Indus., Inc., 964 F.2d 600, 606 (7th Cir. 1992) (cleaned up). Thus, Sherry “must

affirmatively demonstrate, by setting forth specific facts, that there is a genuine

issue of material fact” that would support the application of the continuing

5 As such, Sherry is mistaken in asserting that the Court previously determined as a

matter of law that the continuing violation tolled the statute of limitations in this case. See

Pl.’s Combined Resp. at 8–9.

violation doctrine. See id. (citing Fed. R. Civ. Pro. 56(e); Celotex, 477 U.S. at 324).

Specifically, because Sherry filed suit on August 13, 2018, and his § 1983 claims

have a two-year statute of limitations, Sherry must demonstrate that a

“reasonable person” in his shoes would not have realized that he had “a substantial

claim” until some point after August 13, 2016. See Limestone, 520 F.3d at 801.

Plaintiff’s articulation of his asserted property right is less than clear, and

so it is less than clear when the alleged deprivation of that right would have

“blossom[ed] into an injury” that a reasonable person would have appreciated. See

Limestone, 520 F.3d at 801. For example, in Plaintiff’s opening brief, he claims a

right to a pre-deprivation hearing. But in Plaintiff’s response, he changes tack

and claims that G.O. 90-93 helps define his property interest, conferring a right to

a prompt, thorough investigation by the City after Sherry’s police powers were

removed and he was transferred to the ARU. See Pl.’s Combined Resp. at 2

(“Section 8.1 of the collective bargaining agreement . . ., along with Department

General Order (“G.O.”) 93-03, creates and defines [Sherry’s] rights.”); id. at 4

(“Plaintiff posits that if the City had conducted an investigation into his

allegations within a reasonable amount of time, he would not have a claim.”).

Nonetheless, Sherry insists that nothing changed from 2009 until 2017,

which is the earliest point in time that Sherry accepts that the City may have

begun its investigation into his alleged misconduct. Id. at 5. This is a problem for

Sherry, because he admits that his police powers were first revoked in 2006, just

prior to his arrest, when he was initially transferred to the ARU. See Pl.’s Resp.

Def.’s L.R. 56.1 Stmt. Material Facts at 1, ECF No. 91. And he acknowledges that

“the August 15, 2006 relief of powers order remained in effect” when he returned

to CPD in 2009. Id. at 2 (emphasis added).

Thus, assuming arguendo that the City had disciplined Sherry when it

removed his police powers, to the extent that Sherry’s argument is that those

actions were unlawful in and of themselves, that was readily apparent at the time.

Alternatively, to the extent that Sherry’s claim is premised on the purported

failure of the City to institute a prompt and thorough investigation into the

allegations against him in 2006, having now had the opportunity to conduct

discovery in this case, Sherry does not point to any facts demonstrating why it was

not clear to him prior to August 13, 2016, that the City’s failure to do so was

unlawful. As such, this is not a situation akin to workplace harassment where the

City’s previously-lawful course of conduct became more and more egregious until

it ultimately became unconstitutional at some point after August 2016. And,

indeed, even if there were some sort of grace period that started running in March

of 2009 (during which the City could have initiated its prompt, thorough

investigation), Sherry still bears the burden to raise some evidence from which a

jury could find that a reasonable person in his shoes would have realized that he

had a claim only after August 2016. He has not met that burden here.

At the pleading stage, Sherry was able to rely upon his allegations and the

continuing violation doctrine to survive the City’s motion to dismiss his claim

based upon the two-year statute of limitations. But now, after discovery, Sherry

must do more to forestall summary judgment. Because he has not met his burden

to show some evidence that a reasonable person in his circumstances would not

have realized that the City’s course of conduct amounted to a constitutional

violation prior to August 13, 2016, Sherry cannot rely on the continuing violation

doctrine to toll the statute of limitations, and his claims are time-barred.

CONCLUSION

For the above-stated reasons, Sherry’s motion for summary judgment is

denied, and the City’s motion is granted. Final judgment will be entered

accordingly in favor of the City. This case is hereby terminated.

IT IS SO ORDERED. ENTERED: 3/23/21

_— Xo (Lee

JOHN Z. LEE

United States District Judge

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