Busa v. Barnes, 84 C 6525
| Decision Date | 11 July 1986 |
| Docket Number | No. 84 C 6525,84 C 10358.,84 C 6525 |
| Citation | 646 F. Supp. 619 |
| Parties | Michael BUSA and Steven Mpistolarides, Plaintiff, v. Eugene BARNES, Defendant. Peter LOGISIOS, Plaintiff, v. Eugene BARNES, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Charles A. Linn, Arnold & Kadjan, Chicago, Ill., for plaintiff.
James D. Montgomery, Corp. Counsel, Mary L. Smith, Arthur N. Christie, Asst. Corp. Counsels, Chicago, Ill., for defendant.
Before the Court is plaintiffs' motion to reconsider an order dismissing Count III of the Third Amended Complaint. In its previous Order, the Court held that the Personnel Code of the City of Chicago (CODE) (Rule IX, § 2) did not limit the discharge of probationary employees to the conduct of the employee during the probationary period. Busa v. Barnes, 646 F.Supp. 615, 616 (1986). The Court found its holding was compelled by the unambiguous language of Rule IX, §§ 2 and 3.
On this motion to reconsider, plaintiffs submit internal memoranda of the Department of Personnel (DEPARTMENT). Plaintiffs insist the memoranda are further support for the position they took in opposition to Barnes' motion to dismiss Count III. Specifically, plaintiffs cite Gutierrez v. City of Chicago, 605 F.Supp. 973, 976 (N.D.Ill.1985) and argue the memoranda support the view that the Code requires the dismissal of probationary employees to be based on an employee's conduct during the probationary period. Barnes counters with two arguments. First, he contends the language of the Code is clear—probationary employees are at will employees. Accordingly, the Court need not (indeed, may not) consider Department's internal memoranda in reaching a construction of Rule IX. Judge Decker appears to agree with Barnes' argument. See Fontano v. City of Chicago, 646 F.Supp. 599, 602 & n. 3 (N.D.Ill., 1985). Barnes' second argument is that even if the internal memoranda are considered, they are not inconsistent with the Code. Barnes says the memoranda do no more than suggest some of the factors a department head may consider in assessing probationary employees. The Court agrees with both of Barnes' arguments.
The first memorandum is dated January 10, 1984 and is from the Commissioner of Personnel (COMMISSIONER) to all new probationary employees. Pltf's Ex. A at 1. The memorandum states seven factors included in the rating of probationary employees. The statement of factors contains no limiting language which suggests exclusivity. And even if such a suggestion were made, a later section of the memorandum is to the contrary. The final page of the memorandum places only procedural limitations upon a Department Head's suspension or discharge of probationary employees. Pltf's Ex. A at 3. Probationary employees may be suspended by a Department Head and have no right to review of that decision. Id. Probationary employees may be discharged by a Department Head after the Commissioner received written notification. Id. The memorandum contains no other limitations or qualifications for the suspension or discharge of probationary employees.
The second memorandum (Pltf's Ex. B) is dated May 3, 1984 and is from the Commissioner to all Department Heads. The memorandum directs that "rating forms" for probationary employees will not be used and goes on to state "examples of conduct which should be among the factors considered" in the evaluation of probationary employees. The memorandum lists 27 factors, some of them more general than others. The memorandum, however, neither states nor implies that the listed factors comprise the exclusive list of reasons for discharging probationary employees. Nor does the memorandum state or imply that a Department Head's consideration must be limited to conduct occurring within the probationary period. Indeed, several of the listed factors direct attention to events occurring outside the probationary period. See Pltf's Ex. B 1-3, Nos. 1 (), 3 (sale, delivery or use of controlled substance), 11 (conduct prohibited by local, state or federal law) and 26 (failure to disclose information). Thus, the second memorandum offers plaintiffs no support.
Plaintiffs are correct in their contention that Judge Rovner's ...
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