Perkins v. Silverstein

• Decision Date: 07 August 1991
• Docket Number: No. 90-1481,90-1481
• Citation: 939 F.2d 463
• Parties: 56 Fair Empl.Prac.Cas. 1093, 57 Empl. Prac. Dec. P 40,910, 20 Fed.R.Serv.3d 493 Marie PERKINS and George Gaynor, Plaintiffs-Appellants, v. Marshall SILVERSTEIN, individually and in his capacity as an administrator for the Cook County Forest Preserve District, George Dunne, individually and in his capacity as a President and Commissioner for the Cook County Forest Preserve District, Steve Castans, individually and in his capacity as Chief of the Cook County Forest Preserve District Police Department, Chris Siragusa, individually and in his capacity as a Lieutenant for the Cook County Forest Preserve District, John Gabhart, individually and in his capacity as an administrator for the Cook County Forest Preserve District, James Gaughan, individually and in his capacity as an administrator for the Cook County Forest Preserve District, Lewis Kortas, individually and in his capacity as a Sergeant for the Cook County Forest Preserve District, Edward Connelly, individually and in his capacity as a Lieutenant for the Cook County Forest Preserve District, Bruce Quintos, individually and in his capacity as a Lieutenant for the Cook County Forest Preserve District, G. Palacios, individually and in his capacity as a Lieutenant for the Cook County Forest Preserve District, Sgt. Lawrence, individually and in his capacity as a Sergeant for the Cook County Forest Preserve District, Greg Kinczewski, individually and in his capacity as an attorney for the Cook County Forest Preserve District and Cook County Civil Service Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 463

939 F.2d 463

56 Fair Empl.Prac.Cas. 1093,

57 Empl. Prac. Dec. P 40,910, 20 Fed.R.Serv.3d 493

Marie PERKINS and George Gaynor, Plaintiffs-Appellants, v. Marshall SILVERSTEIN, individually and in his capacity as an

administrator for the Cook County Forest Preserve District,

George Dunne, individually and in his capacity as a

President and Commissioner for the Cook County Forest

Preserve District, Steve Castans, individually and in his

capacity as Chief of the Cook County Forest Preserve

District Police Department, Chris Siragusa, individually and

in his capacity as a Lieutenant for the Cook County Forest

Preserve District, John Gabhart, individually and in his

capacity as an administrator for the Cook County Forest

Preserve District, James Gaughan, individually and in his

capacity as an administrator for the Cook County Forest

Preserve District, Lewis Kortas, individually and in his

capacity as a Sergeant for the Cook County Forest Preserve

District, Edward Connelly, individually and in his capacity

as a Lieutenant for the Cook County Forest Preserve

District, Bruce Quintos, individually and in his capacity as

a Lieutenant for the Cook County Forest Preserve District,

G. Palacios, individually and in his capacity as a

Lieutenant for the Cook County Forest Preserve District,

Sgt. Lawrence, individually and in his capacity as a

Sergeant for the Cook County Forest Preserve District, Greg

Kinczewski, individually and in his capacity as an attorney

for the Cook County Forest Preserve District and Cook County

Civil Service Commission, Defendants-Appellees.

No. 90-1481.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 5, 1990.

Decided Aug. 7, 1991.

Peter J. O'Malley (argued), Chicago, Ill., for plaintiffs-appellants.

Alison E. O'Hara (argued), Office of Atty. Gen., Civ. Appeals Div., Lawrence J. Suffredin, R. Matthew Simon, Simon & Spitalli, Chicago, Ill., for defendant-appellee Marshall Silverstein.

Lawrence J. Suffredin, R. Matthew Simon, Simon & Spitalli, Chicago, Ill., for defendants-appellees George W. Dunne, Steve Castans, Chris Siragusa, John Gabhart, James Gaughan, Lewis Kortas, Edward Connelly, Bruce Quintos, G. Palacios, Sgt. Lawrence and Greg Kinczewski.

Iris E. Sholder, Office of State's Atty. of Cook County, Chicago, Ill., for defendant-appellee Cook County Civ. Service Com'n.

Before COFFEY and KANNE, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Plaintiffs Marie Perkins and George Gaynor, former probationary police officers for the Cook County Forest Preserve District Police Department, filed a sixteen count employment discrimination suit against several members of the Department, defendants Castans, Siragusa, Kortas, Connelly, Quintos, Palacios and Lawrence, two members of the District's administration, defendants Gabhart and Gaughan, the President of the Forest Preserve District, George Dunne, the District's Chief Executive Officer, Marshall Silverstein, its attorney, Greg Kinczewski, and the Cook County Civil Service Commission alleging violations of Title VII, 42 U.S.C. Sec. 2000e et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq., the Civil Rights Act of 1871, 42 U.S.C. Secs. 1983, 1985, 1986, and unidentified state law. The district court dismissed the complaint in its entirety under Fed.R.Civ.P. 12(b)(1) and (6) and denied Perkins' belated motion to amend. This appeal followed. For the following reasons, we now affirm the judgment of the district court.

I. PRIOR PROCEEDINGS

The Commission was named as a defendant in only two counts of the complaint, both alleging violations of procedural due process under state law. Plaintiffs alleged that they had a right under the Commission's Rules and Regulations to have the decisions to terminate their employment reviewed by the Commission, and that that right was violated. The Commission filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) contending that there was no provision for the type of administrative appeal which plaintiffs sought. The district court agreed, citing Ill.Rev.Stat. ch. 34, Sec. 1114 and Civil Service Commission Rule IX, Sec. 12 which give the appointing officer or the executive officer in the department in which an officer is employed the authority to discharge a probationary employee, with the consent of the Commission, "upon assigning in writing to [the] Commission his reasons therefor," and granted the Commission's motion to dismiss.

Taking their cue from the Commission, the individual defendants moved to dismiss the remaining counts of the complaint. On July 24, 1989, the district court granted that motion and issued a detailed memorandum opinion citing various defects in the complaint. It dismissed plaintiffs' Title VII and ADEA claims for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1), finding that plaintiffs had failed to allege compliance with the "jurisdictional prerequisites" of 42 U.S.C. Sec. 2000e-5(e) and (f)(1) and 29 U.S.C. Sec. 626(d). The Secs. 1983 and 1985 claims were found to be insufficient because plaintiffs failed to identify a protected property or liberty interest in their employment, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976), or to allege facts, which if true, would establish the existence of a conspiracy among the defendants. Rodgers v. Lincoln Towing Service, Inc., 596 F.Supp. 13, 21 (N.D.Ill.1984), aff'd, 771 F.2d 194 (7th Cir.1985). Absent a viable claim under Sec. 1985, the court concluded there could be no claim under Sec. 1986. Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir.1980). Plaintiffs' pendent state due process claims were found to be equally lacking in that they failed to identify any basis for plaintiffs' assertion of a right to continued employment with the Department or to cite any statute, rule or regulation which would have entitled them to any process beyond that already received.

We concur with the district court with respect to all but the Title VII and ADEA claims, and find any error in the disposition of those claims to be harmless.

II. STANDARD OF REVIEW

In determining the propriety of dismissal under Fed.R.Civ.P. 12(b)(6), the district court is bound by the same standard which binds this court on appeal. It must accept as true all well-pled factual allegations in the complaint and draw all reasonable inferences therefrom in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir.1989); Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1032-33 (7th Cir.1987). If it appears beyond doubt that plaintiffs can prove any set of facts consistent with the allegations in the complaint which would entitle them to relief, dismissal is inappropriate. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Illinois Health Care Ass'n v. Illinois Dept. of Public Health, 879 F.2d 286, 288 (7th Cir.1989). They may not avoid dismissal, however, simply by attaching bare legal conclusions to narrated facts which fail to outline the bases of their claims. Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984); see also, Gomez, 811 F.2d at 1033 (court not bound by plaintiffs' legal characterization of the facts); Strauss v City of Chicago, 760 F.2d 765, 767-68 (7th Cir.1985) (absence of any facts to support plaintiff's claim renders allegations mere legal conclusions subject to dismissal).

If the district court found it difficult to apply this standard in the present case, we sympathize. It was an onerous task. The complaint lacks material factual allegations, contains a tedious repetition of legal conclusions, and improperly joins the plaintiffs' claims in a single action.

III. ANALYSIS

A. Sufficiency of the Allegations

To suggest that the factual allegations in plaintiffs' complaint were not "well-pled" is an understatement. While plaintiffs make clear in their original complaint what their claims are, they fail to identify the grounds upon which their claims are based. ¹ This they must do, even under the liberal notice pleading of Rule 8(a). Conley, 355 U.S. at 47, 78 S.Ct. at 102. In place of particularized factual allegations, plaintiffs assault us with general statements of the law which were lifted verbatim from federal statutes, regulations and case law dealing with employment discrimination, i.e., "quid pro quo harassment," "hostile work environment," "unwelcome sexual advances," "age discrimination," "wrongful termination," "equal protection," "due process," and "conspiracy." See Sutliff, Inc., 727 F.2d at 654 (complaint which merely recites statutory language and related legalese but fails to allege minimal material factual allegations outlining violation of the law insufficient).

Apparently reading Fed.R.Civ.P. 10(c) as a license to plead their case by exhibit, plaintiffs attached an assortment of letters, newspaper articles, commentaries, cartoons and miscellaneous other exhibits to their complaint, leaving it to the court to extract the relevant facts. To the extent plaintiffs rely on this haphazard compilation to fill the void left in their complaint, their reliance is misplaced. The exhibits show that there were non-discriminatory reasons for terminating plaintiffs' employment; that plaintiffs were accorded a full-adversary pre-termination hearing; and that they were discharged on the basis of a hearing board's recommendation and, in Perkins' case, the decision of the President of the District, defendant George Dunne. It is difficult, if not impossible, to see how these facts, and those which follow, favor the plaintiffs' case.

1. Perkins

According to the exhibits, Perkins attempted suicide...