Back Pay Denied for Cop Who Fought Suspension

CHICAGO (CN) - The 7th Circuit denied back pay to a police officer who was improperly suspended when he refused to turn over his psychological records.

After a psychologist Michael Campion found officer Gregory Simmons unfit for duty with the police department in Pekin, Ill., Simmons told Police Chief Timothy Gillespie that other psychologists who had evaluated him found him able to serve.

Gillespie directed Simmons to provide Campion with those conclusions along with the evaluations and data compiled by the psychologists, but Simmons refused.

Concluding that Simmons had disobeyed an order, the Board of Fire and Police Commissioners suspended him in November 2007 for 20 days without pay.

Though a state court affirmed the decision, a divided appellate panel found in 2009 that Gillespie lacked the authority to issue the order in question. The majority concluded that Illinois law prohibited the chief from seeking more than a psychologist's bottom line, and that Gillespie improperly sought facts and reasons.

Simmons then filed a federal complaint, claiming that he had been denied wages in violation of the due process protections of the 14th Amendment. He sought compensation for the 906 days spanning his March 2006 removal from duty to the date the date Gillespie ordered his return to work in September 2008.

The complaint notes that 65 ILCS 5/10-2.1-17 provides that, "if the Board of Fire and Police Commissioners determines that the charges are not sustained, the officer or member shall be reimbursed for all wages withheld, if any."

U.S. District Judge Joe Billy McDade tossed the suit, ruling that the law Simmons had cited requires an award of back pay only when the commission, not a state court, rules in favor of an officer.

In affirming Tuesday, the 7th Circuit noted that this case is not a good fit for it to apply the Rooker-Feldman doctrine. The rule - which derives from two U.S. Supreme Court cases, Rooker v. Fidelity Trust Co. and District of Columbia Court of Appeals v. Feldman - precludes relitigation in federal court of state court cases.

"Simmons does not contend that the state court's decision caused him injury; he complains, rather, that the decision was not favorable enough," Chief Judge Frank Easterbrook wrote for a three-member panel. "He does not want us to set it aside; that would knock out the victory on which he now relies."

Easterbrook seemed baffled that the city did not raise a defense of preclusion, but soldiered on with his ruling.

"The due process clause of the Fourteenth Amendment does require a state to afford an opportunity for a hearing before depriving someone of a property right created by state law," Easterbrook wrote. "We assume that §5/10-2.1-17 creates a property interest in back pay. But Simmons does not want a hearing. He wants money. That's what the due process clause does not guarantee; the federal entitlement is to process, not to a favorable outcome."

Simmons received a full hearing before being suspended and received judicial review, Easterbrook pointed out.

"Simmons could have asked the state's appellate court to award back pay, but he did not," the six-page ruling states. "He could have asked the state's appellate court to remand to the board so that it could make the finding that would have entitled him to back pay ... but he did not do that either."

"The due process clause does not permit a litigant to disdain his opportunities under state law and then demand that the federal judiciary supply a remedy," Easterbrook concluded.

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