Auriemma v. City of Chicago

• Decision Date: 23 October 1984
• Docket Number: No. 84 C 1224.,84 C 1224.
• Citation: 601 F. Supp. 1080
• Parties: John AURIEMMA, Daniel Coll, Marshall Considine, Renaldo Cozzi, Kenneth Curin, Russell Ditusa, Thomas Farragoi, Lawrence Forberg, John Hinchy, Kathryn Kajari, George Marcin, Patrick McDonough, Walter Murphy, John Rafter, Dominic Rizzi, James Stampnick, Thomas Walton and Roger Whalen, Plaintiffs, v. CITY OF CHICAGO, Harold Washington, Chicago Police Department and Fred Rice, Defendants.
• Court: U.S. District Court — Northern District of Illinois

601 F. Supp. 1080

John AURIEMMA, Daniel Coll, Marshall Considine, Renaldo Cozzi, Kenneth Curin, Russell Ditusa, Thomas Farragoi, Lawrence Forberg, John Hinchy, Kathryn Kajari, George Marcin, Patrick McDonough, Walter Murphy, John Rafter, Dominic Rizzi, James Stampnick, Thomas Walton and Roger Whalen, Plaintiffs, v. CITY OF CHICAGO, Harold Washington, Chicago Police Department and Fred Rice, Defendants.

No. 84 C 1224.

United States District Court, N.D. Illinois, E.D.

October 23, 1984.

John L. Gubbins, Chicago, Ill., for plaintiffs.

Langdon Neal, Asst. Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge.

This action, like many brought in recent years, challenges an alleged municipal practice of firing or demoting public employees because of their political affiliations.¹ Plaintiffs are several members of the Chicago Police Department who held high-ranking positions in the force until defendant Harold Washington replaced Jane Byrne as Mayor of Chicago. Mayor Washington's newly-appointed Police Superintendent, defendant Fred Rice, demoted each of the plaintiffs shortly after taking charge of the force. Count I of plaintiffs' amended complaint alleges that these demotions deprived them of property without due process, in violation of the Fourteenth Amendment. Count II alleges that Mayor Washington and Superintendent Rice demoted plaintiffs to punish them for not supporting the Mayor's 1983 campaign, thus violating their rights under the First and Fourteenth Amendments. Defendants ("the City") have moved to dismiss. For the reasons stated below, the motion to dismiss is denied.

Facts

The following facts are taken largely from the allegations in the amended complaint, which we assume to be true for the purposes of this motion. Each of the plaintiffs held high positions in the police department. For example, plaintiff Auriemma was Commander of the Central Intelligence Unit. Plaintiff Considine was Director of the Crime Laboratory. Plaintiff Forberg was Commander of the Narcotics Section. Each plaintiff was demoted in late 1983 as part of what the amended complaint terms "massive demotions in the upper ranks of the Chicago Police Department."

Plaintiffs allege in Count I that they all had performed well in their jobs, that they had never been disciplined and that they all had received awards for their service. They further allege that Superintendent Rice demoted them without cause and without a hearing, contrary to a "long-standing custom and policy of the Police Department" that persons in plaintiffs' job categories be hired, fired, promoted, demoted or transferred solely on a merit basis. They conclude that their demotions without cause and a hearing violated their Fourteenth Amendment rights to due process of law.

Count II, in a sense, located the "cause" which was missing in Count I. Mayor Washington appointed Superintendent Rice, who is a political supporter of the Mayor. Plaintiffs allege that the Mayor directed the Superintendent to demote the plaintiffs, and that these demotions were intended to punish the plaintiffs for supporting mayoral candidates who opposed Mayor Washington in the 1983 campaign. Plaintiffs conclude that these politically motivated demotions violated their First and Fourteenth Amendment rights.

The City's motion to dismiss attacks the sufficiency of both counts in the amended complaint. We may dismiss the complaint "only if 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, ___ U.S. ___, ___, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). With this standard in mind, we turn to the City's motion.

The Procedural Due Process Claim

The City argues that the plaintiffs have alleged no protectible "property interest" in their jobs, and thus Count I fails to state a claim for relief under the Due Process Clause. It points out that each plaintiff held a position which was exempt from the City's so-called "Career Service" positions. "Career Service" employees are entitled by Ordinance to discharge or discipline only for cause following a hearing on the issue. Municipal Code of Chicago, §§ 25.1-5(12), 25.1-6. No such ordinance or statute limits termination of non-career service employees like plaintiffs. Because no statute or ordinance creates entitlement to retain plaintiffs' jobs, the City concludes that plaintiffs have no property interest in their former positions. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (to have a property interest, person must have legitimate claim of entitlement, arising out of State statute, rule or policy).

Before plaintiffs amended their complaint, we probably would have agreed with the City since the plaintiffs had alleged no legitimate, bilateral claim of entitlement to their former positions. But after receiving the City's motion to dismiss, plaintiffs amended their complaint to allege that the police department had a "longstanding custom and policy" that people holding plaintiffs' jobs would be demoted or fired for cause only. We hold that this complaint as amended sufficiently alleges a "property interest" within the meaning of Roth and its progeny.

Roth's companion case, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), held that even if no state statute or contract creates a property interest in a job, a person may still enjoy a "property interest" for due process purposes if the interest stems from "mutually explicit understandings" between the person and the state employer. Id. at 601, 92 S.Ct. at 2699. A plaintiff may allege and prove that the state agency has promulgated an "unwritten `common law'" of job tenure, which may be implied from "the policies and practices of the institution." Id. at 602-03, 92 S.Ct. at 2700; see also, e.g., Amendola v. Schliewe, 732 F.2d 79, 86 (7th Cir.1984); Hadley v. County of DuPage, 715 F.2d 1238, 1241-42 (7th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984). Plaintiffs' allegation, that police department custom requires that job discipline be based on cause determined after a hearing, plainly satisfies the requirements of Perry for the purpose of surviving a motion to dismiss.²

The City tries to distinguish Perry by directing us to one of the Supreme Court's footnotes, which reads:

... If it is the law of Texas that a teacher in respondent's position has no contractual or other claim to job tenure, the respondent's claim would be defeated.

408 U.S. at 602, n. 7, 92 S.Ct. at 2700. The City argues that unlike Perry, in this case explicit state law does apply to plaintiff's job tenure, in that city rules vest the Superintendent with discretion to reassign plaintiffs as he deems appropriate. See City of Chicago Personnel Rules, Rule III, § 2.³ We disagree that this Rule, or other state laws granting the Superintendent wide discretion in personnel decisions,⁴ defeats the Perry allegation of a custom of merit-based job decisions. The alleged custom could very well supplement rather than contradict the Rules. Simply because state law gives the Superintendent broad discretion does not imply that he could not use his discretion to create a custom of meritbased job decisions. If plaintiffs can prove that past Superintendents have exercised their discretion in a way to follow the alleged custom, they would satisfy Perry. Cf. Soni v. Bd. of Trustees of the Univ. of Tennessee, 513 F.2d 347 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976) (oral assurances that alien faculty member had de facto tenure satisfied Perry even though he had previously not been eligible under state law). In sum, because a set of facts can be proved consistent with the allegations and with Perry, the motion to dismiss Count I is denied.

The Elrod-Branti Claim

The parties agree that two Supreme Court cases, Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), control our analysis of the sufficiency of Count II of the amended complaint. Elrod held that the newly elected sheriff of Cook County violated the First and Fourteenth Amendment rights of certain employees when he fired them "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders." 427 U.S. at 351, 96 S.Ct. at 2679. While the Judgment rested on two opinions, a majority of the Court agreed that "a nonpolicymaking, nonconfidential government employee cannot be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs." Id. at 375, 96 S.Ct. at 2690 (opinion of Stewart, Blackmun, J.J., concurring in the judgment). This holding plainly implies that certain public employees — "policymaking" or "confidential" employees— can be fired for political reasons.

In Branti the Supreme Court reaffirmed Elrod's ban against broad political purges of public employees, but reformulated the test of who can be fired for political reasons:

In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

445 U.S. at 518, 100 S.Ct. at 1295; see also Livas v. Petka, 711 F.2d 798, 800 (7th Cir. 1983). Thus, a court must address two questions in an Elrod-Branti case. First, was the public employee discharged because of her political beliefs or affiliations? If so, has the "hiring authority" met its burden of showing that political loyalty is an appropriate job qualification.

As to the first...