A federal judge has ruled to dismiss in-part the suit brought by Sgt. Dan Harder against two village officials. However, Harder’s claim that his First Amendment rights were violated is still in play.
U.S. District Court Judge James Moran said in his Nov. 9 decision that because Mayor Anthony Calderone and his secretary, Sally Cody, were not named in Harder’s 2002 sexual harassment claim, they cannot be held responsible for any claims of employment discrimination.
But the court did rule that Harder may have a legitimate gripe that Calderone and Cody hindered his right to free speech.
“With respect to his First Amendment claim, however, we find that plaintiff has sufficiently alleged an injury,” Moran stated in his written opinion.
In October 2005 Harder filed suit against a number of village employees claiming, among other things, that he has been the subject of retaliation for a sexual harassment suit he filed in 2002. He also maintains that his campaigning for an election rival of Mayor Anthony Calderone is a motive of the alleged retaliation.
The harassment case was settled in January 2004.
In the pending suit, Calderone filed his motion to dismiss the charges in June and Cody’s was submitted in July.
Though the judge ruled that claims of employment discrimination under Title VII of the Civil Rights Act cannot be held against Cody or Calderone, court records show that no such claim was filed. Harder’s attorney Josh Stern said the pre-emptive ruling obviously bars his client from arguing that a Title VII violation was committed by Calderone or Cody.
Stern declined to comment further on how the ruling might impact the case.
In a written statement, Cody said the ruling is a setback for her personally, but there is still much to be decided.
“I’m disappointed,” Cody said. “It is obvious that I was solely acting in the capacity of my duties. In time, all will be resolved, and I look forward to that end.”
In his 2005 filing, Harder alleges he was purposefully excluded from training opportunities with the police department and this retaliation culminated with the termination hearings before the Fire and Police Commission.
The Fire and Police Commission voted almost unanimously last month to uphold the charges lodged by Chief Jim Ryan, but a ruling on his punishment has not been determined. Ryan is asking that Harder be terminated.
Judge Moran also ordered that the claims of due process violations against Calderone and Cody be dismissed on the basis that Harder has not actually been terminated from his job with the police department.
“It is unclear whether plaintiff’s injury is sufficiently ripe to maintain his due process claim,” Moran stated. “It is clear, however, that the board’s determination might moot or narrow the issue, and we should allow that process to do so, potentially rendering a constitutional decision unnecessary.”
Calderone was not familiar with the specifics of the ruling, but said he was pleased the court threw out the claims of due process violations.
“It’s ridiculous to allege that I’m involved in any portion of this,” Calderone said.
The Fire and Police Commission will hear arguments for and against Harder’s termination on Dec. 7. Commission attorney Charles Hervas said there will be no live testimony. Each side will be given 30 minutes to present documents supporting its position.
Within 30 days of delivering a ruling on Harder’s punishment, the commission will issue a written opinion explaining its decisions. From that, either side will have 35 days to file an appeal with the Cook County Circuit Court.