Cushing v. City of Chicago

Decision Date20 September 1993
Docket NumberNo. 92-2286,92-2286
Citation3 F.3d 1156
PartiesEdward CUSHING, Plaintiff-Appellant, v. CITY OF CHICAGO and Alderman Edward J. Burke, Chairman of the City of Chicago Finance Committee, Walter Knorr, City Comptroller, and John Tully, Director of Personnel of the Chicago Fire Department, as agents of the City of Chicago, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

J. Peter Dowd, Dowd & Bloch, Chicago, IL (argued), for plaintiff-appellant.

Patricia M. Carroll-Smit, Office of Corporation Counsel, Jean Dobrer (argued), Kelly R. Welsh, Asst. Corp. Counsels, Benna R. Solomon, Office of Corp. Counsel, Appeals Div., Daniel J. Pierce, Lydon & Griffin, Chicago, IL, for defendants-appellees.

Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

KANNE, Circuit Judge.

Edward Cushing brought this suit under 42 U.S.C. Sec. 1983, alleging the defendants had deprived him of property without due process of law in violation of the Fourteenth Amendment. The district court granted the defendants' motions to dismiss Cushing's second amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). We affirm in part and reverse in part.

I.

Our summary of the facts is drawn from the plaintiff's second amended complaint. In January 1988, Edward Cushing, a Chicago Fire Department Battalion Chief, experienced chest pains and shortness of breath while on duty. He was treated at St. Joseph's Hospital and subsequently placed on medical lay-up status for one year. During that time, the City of Chicago paid Cushing his full salary in accordance with Sec. 7.3 of the collective bargaining agreement between the City (the "Employer") and the Chicago Fire Fighters Union, Local No. 2. 1 Article VII, Sec. 7.3 of the agreement, covering "Sick and Injury Leave," states, in relevant part:

Any member of the Fire Department receiving any injury on duty or duty related disability so as to prevent him from attending to his duties as such member of the Fire Department shall, for the duration of twelve (12) months, providing his disability shall last that time, or for such portion of twelve months as such disability or sickness shall continue, receive his usual salary; and such disability shall not be considered as rendering necessary his retirement from service in the Fire Department during such period. The fact of such disability, its nature or cause of his injury, and its duration shall be certified to by the Department physician or by the production of such other evidence as shall be satisfactory to the Fire Commissioner....

In the event a dispute arises as to the disability of the member, or the nature or cause of his injury, such dispute shall be referred to the Grievance Procedure under Article X.

....

The Employer further agrees to pay all hospital and medical costs of an employee incurring a duty connected injury, illness or disability.

On January 6, 1989, when the lay-up period expired, Cushing was removed from the Fire Department's payroll. He then applied to the Board of Trustees of the Fireman's Annuity and Benefit Fund of Chicago (the Retirement Board) for duty disability benefits. The Retirement Board found Cushing had suffered a duty related "injury" and had been removed from the Fire Department's payroll for medical reasons. Accordingly, in February, Cushing's request for benefits was granted.

On May 30, 1989, the Fire Department's Director of Personnel, John Tully, sent notices to the doctors and hospitals that had treated Cushing, informing them Cushing's injury was not duty related and, as a result, he was responsible for his medical bills. 2 Any future bills for treatment of his ailment, the notices stated, should be sent to Cushing's home address.

On January 5, 1990, Cushing's attorney wrote to the Chairman of the City of Chicago Finance Committee, Alderman Edward Burke, claiming that Cushing was entitled to full payment of his medical expenses under state law as well as the City's municipal code. The letter stated that the City had failed to pay these expenses even though the Retirement Board had awarded Cushing duty disability benefits, and asked Burke to resolve the matter promptly. Cushing received no reply from the Finance Committee.

In February, however, Cushing's attorney received a response from a claims investigator in the City Comptroller's Office. The investigator wrote that, according to a January 22, 1990 memo from the City's Medical Director to Personnel Director Tully, Cushing told hospital personnel in 1988 that he had previously suffered two heart attacks, and had been taking medication for congestive heart failure for approximately five years but had stopped without instruction from his physician. On the basis of this information, the investigator's letter concluded Cushing suffered from a pre-existing medical condition, not a duty related injury, and was therefore solely responsible for any medical charges he had incurred.

In March 1990, Cushing filed a Sec. 1983 claim against the City of Chicago and its agents, Personnel Director Tully, Alderman Burke, and City Comptroller Walter Knorr, alleging deprivations of procedural and substantive due process under the Fourteenth Amendment as a result of the City's refusal to pay 100% of his medical expenses. In July, Cushing filed an amended complaint reasserting the same substantive claims. Defendant Burke filed a motion to dismiss the amended complaint; the other defendants filed a partial motion to dismiss and a motion for partial summary judgment. On April 22, the district court granted the motions to dismiss in part and denied them in part. The procedural due process count was dismissed without prejudice, with leave to file an amended complaint reasserting that claim under Article 7, Sec. 7.3 of the collective bargaining agreement.

In May 1991, Cushing filed a second amended complaint resurrecting only the procedural due process claim. The complaint alleged that, under Sec. 7.3 of the agreement, Cushing had a property interest in the City's payment of his medical expenses, and that the City had discontinued and withheld payment without giving him notice and an opportunity to be heard. 3

The defendants once again filed motions to dismiss for failure to state a claim. On April 22, 1992, the district court granted the motions, dismissing the complaint with prejudice. In its order, the court acknowledged the existence of a dispute over the nature of Cushing's disability, but found that Sec. 7.3 of the collective bargaining agreement required any such dispute be referred to the grievance procedure established in Article X. Because Cushing had alleged neither that he had availed himself of the grievance process nor that the process was itself insufficient, the court ruled he had failed to state a claim upon which relief could be granted. Cushing filed a timely notice of appeal; the jurisdiction of this court is predicated on 28 U.S.C. Sec. 1291.

II.

We review de novo a Rule 12(b)(6) dismissal, assuming the truth of all well-pleaded allegations and drawing all reasonable inferences in the plaintiff's favor. Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992); Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.1990). A complaint should not be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). See also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

On appeal, Cushing contests only the dismissal of his second amended complaint, thus we limit our review to the issues raised by that pleading. There are two: (1) did Cushing adequately allege a property interest in full payment of his medical bills under Sec. 7.3 of the collective bargaining agreement? (2) did Cushing's failure to refer his dispute with the City to the grievance procedure set forth in the agreement preclude his procedural due process claim? The pleading in this case by both parties is, to be charitable, haphazard. Nonetheless, we conclude that Cushing's claim survives the defendants' motions to dismiss.

In order to assert a due process claim, Cushing must allege sufficient facts showing that he had a legitimate claim of entitlement to medical benefits under the collective bargaining agreement. See Lee v. County of Cook, 862 F.2d 139, 141 (7th Cir.1988); Davis v. City of Chicago, 841 F.2d 186, 188 (7th Cir.1988). Property interests under the Fourteenth Amendment "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). "A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). See also Wallace v. Robinson, 940 F.2d 243, 246-47 (7th Cir.1991) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 1563, 118 L.Ed.2d 210 (1992).

A written contract can be the source of a property interest. See Perry, 408 U.S at 601, 92 S.Ct. at 2699. Even so, "[e]xplicit contractual provisions may be supplemented by other agreements implied from 'the promisor's words and conduct in the light of the surrounding circumstances.' " Id. at 602, 92 S.Ct. at 2700 (quoting 3A Corbin on Contracts Sec. 562 (1960)). See also Colm v. Vance, 567 F.2d 1125, 1128 (D.C.Cir.1977) ("Perry is especially pertinent to appellants' property claims in that it...

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