Officer’s Retaliation, Discrimination Claims Dismissed

By Jeffrey Rhodes June 2, 2022
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Takeaway: An employer can generally take protective steps to address perceived psychological issues that may portend workplace violence, particularly with respect to a public safety employee.

​A law enforcement officer for the Illinois Gaming Board could not prove First Amendment retaliation or disability discrimination when he was placed on administrative leave after showing signs of paranoia, the 7th U.S. Circuit Court of Appeals ruled.

The Illinois Gaming Board regulates riverboat and video gambling in Illinois. The board has the authority to use the services of the Illinois State Police, and about 50 percent of its staff are officers assigned to it by the state police. These officers are eligible for promotion within the gaming board.

The plaintiff worked as a gaming special agent for the board at Jumer's Casino and Hotel in Rock Island, Ill. He investigated criminal activity related to gambling and ensured the integrity of gaming in Illinois. He was also a union representative.

In July 2016, the plaintiff grew concerned about the board's hiring and promotion practices. He e-mailed the gaming board's labor relations liaison, complaining that state police officers were promoted more often than board employees. The plaintiff said he was investigating the issue in his capacity as a union representative for a possible grievance. He requested documentation of any similar past grievances. The liaison informed the plaintiff of a similar past grievance.

The plaintiff went on vacation on July 30 and was not scheduled to return to work until Aug. 16. While on vacation, he e-mailed the liaison and the gaming board's law enforcement commander, a captain, saying that he would formally file a grievance in the next few days. The e-mail included a draft of his forthcoming grievance, which was 79 pages long.

Among many other allegations, the plaintiff claimed that the gaming board had given the state police de facto control over the board. He alleged that state police employees accounted for a larger percentage of gaming board leadership positions than gaming board employees. He also complained about corruption within the gaming board and Illinois government more generally.

In the e-mail transmitting the draft of the grievance, the plaintiff claimed that his supervisor at the casino was spreading false rumors about him and his wife in retaliation for his planned grievance. He added that his wife was scared and he feared further retaliation. He asked the recipients of the e-mail to put a stop to any retaliation and false rumors.

The plaintiff then sent a second e-mail pleading for help, noting that his wife was seriously afraid and asking for the captain to give him a call. The captain called the plaintiff and became concerned that he was behaving irrationally. The plaintiff insisted that his supervisor was spreading rumors and that his wife was afraid that the state police might harm them.

In a follow-up e-mail the next morning, the plaintiff stated that his wife believed that the Illinois State Police may actually try to send someone to physically harm their family. The captain discussed with the gaming board's general counsel his concerns about the plaintiff.

While he was still on vacation, the plaintiff showed up unannounced at Jumer's Casino before 7 a.m. to file his grievance. He hand-delivered a copy to an operations supervisor for Jumer's and argued with him in his office until the captain called and told the plaintiff to leave the casino.

Because of this odd behavior during the plaintiff's unexpected visit to work, the captain placed him on administrative leave. To notify the plaintiff, the captain contacted the police department where the plaintiff lived in Bettendorf, Iowa. Detectives delivered a notice to the plaintiff stating that he was on administrative leave and could not return to work until he completed a fitness-for-duty examination. The detectives collected the plaintiff's service items, including his gun.

On Aug. 22, the plaintiff passed the fitness-for-duty exam and was cleared to return to work effective Sept. 12. He then filed a lawsuit for damages, alleging retaliation against his First Amendment rights under 42 U.S.C. §1983, against the gaming board, the captain and other officials. He also accused the gaming board of discrimination under the Americans with Disabilities Act (ADA).

The defendants moved for summary judgment on both claims, which the district court granted. The plaintiff appealed. On appeal, the 7th Circuit determined that all the evidence supported the defendants' belief that the plaintiff seemed paranoid, which raised concerns about his mental state. There was no evidence that the explanation was a lie to cover up retaliatory intent.

The 7th Circuit further found that the ADA permits fitness-for-duty examinations when public safety employees are involved, thereby undercutting the plaintiff's ADA claim. The court thus upheld the district court's dismissal of the claims.

See v. Illinois Gaming Board, 7th Cir., No. 19-2393 (March 21, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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