Buttitta v. City of Chicago

• Decision Date: 15 December 1993
• Docket Number: No. 92-3631,92-3631
• Citation: 9 F.3d 1198
• Parties: Frank BUTTITTA, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1198

9 F.3d 1198

62 USLW 2313

Frank BUTTITTA, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.

No. 92-3631.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 21, 1993.

Decided Nov. 9, 1993.

Rehearing Denied Dec. 15, 1993.

Anthony S. DiVincenzo (argued), Campbell & DiVencenzo, Rick M. Schoenfield, Schoenfield & Swartzman, Chicago, IL, for plaintiff-appellant.

Patricia M. Carroll-Smit, Asst. Corp. Counsel, Amy E. Neuman, Lawrence Rosenthal, Deputy County Council, Mardell Nereim (argued), Kelly R. Welsh, Asst. Corp. Counsel, Eileen Brewer, Benna R. Solomon, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for defendants-appellees.

Before FLAUM and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

FLAUM, Circuit Judge.

This case presents an issue of first impression requiring this court to construe Section 5-156 of the Illinois Pension Code. 40 ILCS 5/5-156. In 1986, Chicago police officer Frank Buttitta ("Buttitta") suffered an ankle injury in the line of duty that caused him to go on disability leave. In 1989 and again in 1991, the Chicago Police Department ("Police Department") refused to reinstate Buttitta to active duty despite the fact that on both occasions the Retirement Board of the Policeman's Annuity and Benefit Fund ("Board") had "returned [Buttitta] to active service," pursuant to Section 5-156. Buttitta then sued the City of Chicago ("City") under 42 U.S.C. Sec. 1983, alleging that by failing to reinstate him, both in 1989 and in 1991, the City had deprived him of a property interest created by Section 5-156 without due process of law. The district court dismissed Buttitta's claim and granted summary judgment for the City. On appeal, Buttitta asserts that the district court erroneously construed Section 5-156. We conclude that the district court erred in its construction of Section 5-156; nevertheless we affirm because we find that Buttitta has not suffered a deprivation of a protectible property interest.

I.

Officer Buttitta joined the Chicago Police Department in 1967. In March, 1986, Buttitta injured his ankle in the line of duty and was placed on the police department's Medical Roll. On September 5, 1987, the Board awarded Buttitta duty disability benefits, entitling Buttitta to 75% of his normal salary, but removing him from the Medical Roll and thus from active duty.

On May 24, 1989, Dr. Richard Brash, a private orthopedic surgeon, advised Buttitta that he could return to work. On June 7, 1989, Dr. S. David Demorest, the Board's staff physician, examined Buttitta and concurred with Dr. Brash's assessment. On June 29, 1989, James B. Waters, Jr., the Executive Director of the Pension Board, sent a letter to the Police Department concluding as follows:

[O]n the recommendations of Dr. Demorest and Dr. Brash we are returning Officer Buttitta to you for assignment, in accordance with the provisions of Chapter 108 1/2, Article 5-156 of the Police Pension Act.

Following the communication from the Board, the Police Department's Medical Services Section examined Buttitta as required by the Police Department's General Order No. 40-5. ¹ The Police Department agreed with the Board's determination that Buttitta was no longer disabled by the ankle injury. However, on July 13, 1989, the Commander of the Personnel Division of the Police Department sent a letter to Buttitta denying his reinstatement because of a "significant elevation of hepatic enzymes, indicative of an active inflammatory process in the liver."

On October 26, 1989, the Board adjusted Buttitta's status from "duty disability" to "ordinary disability" in order to reflect the fact that Buttitta's current disability--the liver inflammation--was not duty related. Accordingly, Buttitta's disability benefit was reduced from 75% to 50% of of salary, using as a base the salary Buttitta would have been receiving had he been an active employee on July 13, 1989, the date on which the police department informed him that he would not be returned to active duty. ²

In 1991, Buttitta again sought reinstatement. Buttitta's personal physician, Dr. Hillary Neybert, examined him on February 25, 1991, and summarily declared him "medically fit for active police service." The Board's physician, Dr. Demorest, then re-examined Buttitta on March 16, 1991. Dr. Demorest's report offered no opinion on Buttitta's fitness for duty, concluding:

It would thus seem that his prior liver enzyme elevation has not resolved. Officer Buttitta was denied reinstatement by the police surgeon previously due to elevated enzymes. His condition remains unchanged, albeit not serious. I would be interested in hearing the police surgeon's comments.

Despite Dr. Demorest's report, the Board again returned Officer Buttitta to the police department for assignment. In a May 2, 1991, letter communicating the Board's decision, Executive Director Waters specifically relied on Dr. Neybert's recommendation and did not mention Dr. Demorest's report. The Police Department again examined Buttitta, and again refused reinstatement because of "continued elevation of liver enzymes indicative of liver dysfunction."

On February 21, 1992, Dr. Demorest examined Buttitta for a third time. In his April 2, 1992, report, Dr. Demorest diagnosed Buttitta with alcoholic hepatitis and concluded that "[b]ased on his current exam and blood test, Officer Buttitta is unable to return to full active police duty." No later medical reports appear in the record.

On May 19, 1992, Buttitta's counsel requested "a full hearing from the [Pension] Board regarding Officer Buttitta's fitness" for active duty. Counsel asserted that Buttitta had stopped drinking and had received counseling regarding his alcohol use. No response to that request is reflected in the record. Buttitta then commenced his Sec. 1983 action in federal district court, alleging that the City deprived him of a property interest created by Section 5-156 without due process of law by failing to reinstate him to active service in 1989 and 1991.

II.

The Due Process Clause of the Fourteenth Amendment forbids a state from depriving any person of life, liberty, or property without due process of law. The Supreme Court has interpreted the constitutional guarantee of due process to encompass both procedural and substantive rights. Officer Buttitta asserts that his claim "has always been for denial of procedural due process." Appellant's Reply Br. at 16. Due process is a flexible concept which "calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Perry v. F.B.I., 781 F.2d 1294, 1303 (7th Cir.) (en banc), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986). However, "the range of interests protected by procedural due process is not infinite." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). In this case, to sustain a claim under the due process clause Buttitta must demonstrate: (1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due process. See Schroeder v. City of Chicago, 927 F.2d 957, 959 (7th Cir.1991); Bigby v. City of Chicago, 766 F.2d 1053, 1056 (7th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986).

As the district court correctly observed, in any due process case where the deprivation of property is alleged, "the threshold question is whether a property interest actually exists." Buttitta v. City of Chicago, 803 F.Supp. 213, 218 (N.D.Ill.1992). Property interests are not created by the Constitution; rather, "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law...." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985); Roth, 408 U.S. at 577, 92 S.Ct. at 2709. It is well settled law in this circuit that a state statute may create a protectable property interest in employment. Hohmeier v. Leyden Community High Schools Dist. 212, 954 F.2d 461, 464 (7th Cir.1992); Domiano v. River Grove, 904 F.2d 1142, 1148 (7th Cir.1990); Farmer v. Lane, 864 F.2d 473, 478 (7th Cir.1988). However created, a property interest is not constitutionally cognizable unless a person has a "legitimate claim of entitlement" to the benefit. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. A unilateral expectation of the benefit will not suffice. Id.

In the employment context, "[p]roperty interests exist when an employer's discretion is clearly limited so that the employee cannot be denied employment unless specific conditions are met." Colburn v. Trustees of Indiana University, 973 F.2d 581, 589 (7th Cir.1992). When a job thus becomes "property" within the meaning of the Due Process Clause, the state may not take it away without notice and a hearing--though "this procedure need not be elaborate and can be satisfied with less than a full evidentiary hearing." Smith v. Town of Eaton, 910 F.2d 1469, 1472 (7th Cir.1990), citing Loudermill, 470 U.S. at 547, 105 S.Ct. at 1496; see also Roth, 408 U.S. at 577, 92 S.Ct. at 2709 ("It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate [a claim of entitlement to a property interest]."). Failure to provide due process in this circumstance, as the district court observed, is actionable under Sec. 1983, "the all-purpose statutory vehicle for compensating the victims of constitutional torts." Buttitta, 803 F.Supp. at 218.

Officer Buttitta asserts that Section 5-156 of the Illinois Pension Code creates the property interest that he seeks to vindicate through his Sec. 1983 action. Section 5-156, entitled "Proof of duty or ordinary disability--Physical examinations", provides:

Proof of duty or ordinary disability shall be furnished to the board by at least...