Private Guards' Public Policy Claim Rejected; No Illinois Policy on Fifth Amendment Rights

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By Lawrence E. Dubé

Dec. 30 — Armored car employees who invoked their Fifth Amendment right against self-incrimination during a police investigation could not show their former employer fired them in violation of Illinois public policy for exercising their constitutional rights, a federal district court in Illinois held Dec. 29.

Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois said Garda CL Great Lakes Inc. retained Gabriel Gomez and Adam Hedberg throughout the company's investigation of a $10,000 loss, but fired them weeks later, shortly after they declined to speak to a local police detective.

Leinenweber said there was a genuine dispute about whether the employees were discharged for exercising their rights under the U.S. Constitution, but he found they had no viable claim of wrongful discharge under Illinois law.

Writing that “the Fifth Amendment's public policy is tied only to government action,” the court said a private employer's decision to fire Gomez and Hedberg was not actionable in Illinois as retaliatory discharge.

Money Disappeared From Cash Bag

According to the decision, the two men were vehicle operators for Garda, which provides armored transportation and cash deliveries to its clients.

On Dec. 19, 2011, the court said, the two men checked out bags of money to be delivered that day, including an “e-cash” bag containing $40,000. The orange bag was secured with a green seal when they checked it out. Gomez and Hedberg did not need the cash for a delivery that day, Leinenweber said, and they returned it to the company at the end of their work day.

The following day, the men checked the orange bag out again, but when they returned it late on Dec. 20, it had a red seal in place of the green one, and it contained only $30,000, not $40,000.

After the employees cooperated in a company investigation and submitted to polygraph examinations, Garda returned them to work in January 2012. However, the firm's corporate security head eventually reported the lost cash to local police, expressing the view that only Gomez and Hedberg had access to the e-cash bag at the time of the $10,000 loss.

Firings Followed Fifth Amendment Claims

Both men declined to give statements to an investigating police detective, invoking the Fifth Amendment.

Garda fired the two employees, who filed a lawsuit asserting federal claims, including an alleged conspiracy of corporate and municipal officials to deprive them of civil rights, and a common law claim that Garda discharged them in violation of the public policy of the state for invoking the protection of the U.S. Constitution.

The court said the employees lacked any evidence that Garda asked police to do anything improper, and the court also found there was no basis for the federal conspiracy claim.

No Public Policy Protecting Private Sector Workers

On the discharges, Leinenweber said Illinois courts recognize a tort claim for retaliatory discharge if an employee is fired for activity under circumstances where the state's public policy prohibits discharge. “The only element at issue” in the lawsuit against Garda, the court said, “is whether the termination violated Illinois public policy.”

The armored car employees “argue that they were terminated because they refused to give up their Fifth Amendment privilege against self-incrimination,” Judge Leinenweber said, but “the Court cannot find any authority to support the proposition that asserting the privilege shields a person from private consequences.”

“Plaintiffs argue that they were terminated because they refused to give up their Fifth Amendment privilege against self-incrimination,” Leinenweber wrote, but he said the constitutional provision protects individuals against governmental conduct, “and the Court cannot find any authority to support the proposition that asserting the privilege shields a person from private consequences.”

Concluding “the Fifth Amendment's public policy is tied only to government action,” the court held “Plaintiffs have failed to establish their claim of common-law retaliatory discharge” and he granted summary judgment in favor of the employer.

Jared S. Kosoglad PC represented Gomez and Hedberg. Littler Mendelson represented Garda CL Great Lakes Inc.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Gomez_v_Garda_Cl_Great_Lakes_Inc_No_13_C_1002_2014_BL_364946_ND_I.