Cook County Record

Friday, December 6, 2019

Judge nixes 'tit-for-tat' try to toss Chicago city lawyers accused of letting truck drivers be harassed over political discrimination suit

Lawsuits

By D.M. Herra | Nov 19, 2019

Concourse b chicago ohare airport
Concourse B, O'Hare International Airport, Chicago | Dllu [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)]

A federal judge has refused to disqualify the city of Chicago’s in-house lawyers in a lawsuit brought by a pair of O'Hare truck drivers, saying the drivers' motion was retaliatory after the city moved to disqualify their attorney.

The judge, however, warned the city's attorneys to be more vigilant in policing actions by city workers perceived by the truck drivers as attempts to pressure them into dropping their lawsuit over political discrimination within the city's Department of Aviation at O'Hare International Airport.

U.S. Magistrate Judge Sidney I. Schenkier said the motion by the attorney for truck drivers Hector Hernandez and Charles Termini seemed “an improper tit-for-tat response to defendants’ motion to disqualify plaintiffs’ own counsel.” Attorneys for the city and co-defendants Bill Helm, former deputy commissioner of the Chicago Department of Aviation, and O'Hare Airport Manager Kevin Martin, contended the plaintiffs’ lawyer should be disqualified “for an alleged ethical violation.”

The drivers are represented by attorney Cass Casper, of Talon Law, of Chicago.

“Plaintiffs’ lead attorney … contends that he only became aware of a basis to disqualify (city counsel) while preparing his response to defendants’ motion,” Schenkier wrote in his order. “We are skeptical that an attorney who has practiced law for approximately 10 years … would realize that ‘repeated, ongoing, continuous and incessant ethical infractions’ could lead to disqualification only after his opponent sought his disqualification.”

The drivers claimed city counsel violated a rule that prohibits lawyers from communicating with other people involved in a legal matter who are represented by a different attorney. While the city’s lawyers have not communicated directly with the plaintiffs in their whistleblower complaint, Hernandez and Termini said Helm and a former defendant pressured them, both personally and through other coworkers, to drop the lawsuit. The plaintiffs went on to accuse the defendants’ legal team of intimidation because it failed to stop the harassment.

While the matter was brought to the lawyers’ attention, Schenkier wrote there was no evidence the lawyers were directing the interference. He did, however, warn the city’s legal team to take the allegations seriously.

“It would be wise (for counsel) to reiterate to their clients the inappropriateness of any actions that might be read as attempts to intimidate plaintiffs or their counsel, and to explain that such actions do nothing to advance this litigation,” he wrote.

The drivers filed suit in 2018, accusing the city of retaliating against them, denying them overtime, suspending them from their jobs, or seeking to otherwise discipline them, for refusing to carry out favors and perform political work for Chicago city officials. 

The drivers said they have been "abused" and "harassed" by supervisors and co-workers alike for complaining of the alleged misbehavior. Now, they have also accused the city's lawyers of allowing the harassment to continue.

Schenkier agreed with the plaintiffs that the defendants’ counsel should not have allowed a security video showing an interaction between one of the plaintiffs and a coworker to be destroyed, but said the issue does not rise to the level of disqualification. At worst, he wrote, it was negligent, “not the type of serious misstep that justifies depriving defendants of their choice of counsel.”

Schenkier said some of the plaintiffs’ arguments for disqualification don’t even involve the city’s attorneys. They argued that discovery was not being provided in a timely manner, but the discovery they were seeking was under the control of a defendant represented by his own attorneys. They sought personal cell phone and email records not under the city’s control. They also objected to a subpoena issued by the city’s Office of the Inspector General, though that office did not coordinate with the city’s attorneys on the investigation.

“Even if we assume that Corporation Counsel worked with the OIG on the OIG subpoena in some capacity, plaintiffs have not explained why this would justify disqualification,” Schenkier wrote. “Plaintiffs do not contend that the issuance of the OIG subpoena violates any rule of professional conduct. Nor do plaintiffs challenge the OIG’s authority to issue the subpoena.”

Schenkier concluded his order with stern words for attorneys on both sides. He warned the plaintiffs that “allegations of ethical misconduct, especially ones involving witness intimidation and contacting represented parties, are serious matters that should be supported by tangible evidence.” He chided defendant counsel to treat plaintiffs’ allegations of harassment seriously and to convince their clients not to engage in improper behavior.

The city’s motion to disqualify the plaintiffs’ attorney remains active pending an evidentiary hearing.

Helm's name has surfaced in search warrants executed in an ongoing federal anti-corruption investigation, in Chicago and elsewhere in Illinois, according to a report published by the Chicago Sun-Times. Helm resigned his post in the Chicago Department of Aviation in August.

Jonathan Bilyk contributed to this report.

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Organizations in this Story

U.S. District Court for the Northern District of IllinoisCity of Chicago Department of AviationTalon Law, LLCChicago of Chicago Law Department

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