The Village of Forest Park and the Board of Fire and Police Commissioners have both filed responses to the U.S. District Court addressing a suit brought against the village by Sgt. Dan Harder alleging a violation of the Family Medical Leave Act.

That suit, filed Oct. 7, requested that the village be issued a restraining order to prevent the termination of Harder’s employment and a permanent injunction banning the village from terminating his employment based on alleged excessive absenteeism.

The Fire and Police Commission has already held two hearings regarding Harder’s case, with the next one scheduled for Nov. 3 at 4 p.m. Barring further delays, the board should finally begin hearing evidence from both sides at that time and could rule on the possible termination.

The original charges brought against Harder by Police Chief James Ryan stated that Harder had taken 54.5 sick days so far in 2005, but did not mention that many of those sick days were part of a village-approved family medical leave, leading Harder to file the suit.

The charges were later amended, bringing the sick-day count down to just 11.

The village’s response to the suit, prepared by Village Attorney Michael Durkin, calls the request for a restraining order “premature,” as the authority to determine Harder’s fate with the department is vested with the Fire and Police Commissioners.

Since the board has yet to make its ruling on the charges against Harder, the village’s response states that no violation of the FMLA could have occurred. It cites several past cases to back up the assertion that granting the restraining order would be “an extraordinary remedy” that is typically only granted in cases where “a plaintiff establishes the existence of a clearly ascertainable legal right, irreparable harm if the injunction is not granted, and an inadequate remedy at law.”

The response goes on to state that even if Harder were fired, he has other legal avenues available, including pursuing a monetary award.

Harder, it says, cannot show any irreparable harm if the restraining order is not entered, because he cannot be disciplined until the Fire and Police Commissioners have made their decision.

Fire and Police Commissioners
seek to intervene

The Board of Fire and Police Commissioners, which was not named in Harder’s suit against the village, also filed a petition to intervene in the case. Though the petition was filed by the board’s attorney, Charles Hervas, Harder’s attorney Jeanine Stevens alleged that it was orchestrated by Durkin, who argued in court for the board to be granted a leave to intervene.

Stevens said that she believes any role that Durkin played in preparing the petition creates a conflict of interest, as the board is intended to operate independently of the village. In addition, she said, the board involving itself at all in the federal suit shows it has already taken sides in the case.

The petition, however, states that “the board takes no position on the merits of the claims set forth by Sgt. Harder in the federal lawsuit.”

Instead, it continues, “the board’s only interest in this litigation is to maintain and protect the integrity of the state statutory system that ascribes to the board the responsibility of providing a fair and impartial hearing.”

The petition goes on to express the board’s objection to the attempt to enjoin Harder’s termination, stating that according to Illinois statute, “the final determination on Sgt. Harder’s status with the Forest Park Police Department rests in the hands of the board.”