# Sherry v. City Of Chicago

> District Court, N.D. Illinois · March 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10144388

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** March 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10144388. Public record. Not legal advice.