Ceko v. Martin, 90 C 4172.

• Decision Date: 27 December 1990
• Docket Number: No. 90 C 4172.,90 C 4172.
• Citation: 753 F. Supp. 1418
• Parties: John CEKO, Plaintiff, v. Leroy MARTIN, Superintendent of Police, Hubert W. Holton, Director of Personnel, Steven Stanard, Ph.D., and The City of Chicago, a Municipal Corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

753 F. Supp. 1418

John CEKO, Plaintiff, v. Leroy MARTIN, Superintendent of Police, Hubert W. Holton, Director of Personnel, Steven Stanard, Ph.D., and The City of Chicago, a Municipal Corporation, Defendants.

No. 90 C 4172.

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

December 27, 1990.

COPYRIGHT MATERIAL OMITTED

Thomas J. Pleines, Law Offices of Joseph V. Roddy, Chicago, Ill., for plaintiff.

Kelly R. Welsh, Corp. Counsel of the City of Chicago by Patricia M. Carroll-Smit, Asst. Corp. Counsel, Chicago, Ill., for defendants Martin, Holton and City of Chicago.

MEMORANDUM ORDER

BUA, District Judge.

Plaintiff, a long-time employee of the Chicago Police Department (the "Police Department"), commenced this lawsuit after the Police Department placed him on an unpaid medical leave of absence. Plaintiff contends that he was not afforded due process before he was placed on sick leave. Three of the named defendants have moved to dismiss plaintiff's two-count complaint. For the reasons stated herein, defendants' motion to dismiss is denied with respect to Count I and granted with respect to Count II.

I. FACTS

Over the course of his employment with the Police Department, plaintiff John Ceko experienced periods of emotional and psychological instability. Despite this history of "emotional disarray" (as characterized by his treating physician), Ceko began serving as a "911" emergency dispatcher on May 1, 1989.

On October 24, 1989, only five months after he started his new position, Ceko was hospitalized for treatment of a psychological disorder. Unable to continue working, Ceko was placed on the Police Department's "medical rolls." Ceko's employee benefits provided for paid sick leave; thus, he continued to receive his full salary while on the medical rolls. On November 9, 1989, however, Ceko's leave status was altered to "excused with no pay" for medical reasons. Later that month, Dr. Dixon Spivy (Ceko's treating physician) advised the Police Department that Ceko was medically fit to return to work as of December 8, 1989. Ceko also notified the Police Department that he was able to resume his duties as a 911 dispatcher on the date recommended by his doctor.

On December 11, 1989, the Director of Personnel for the Police Department, Hubert Holton, asked Ceko to submit to a physical examination by Dr. Steven Stanard. Ceko agreed to the examination. Dr. Stanard administered several tests, and issued his report on January 10, 1990. Based on his medical findings, Dr. Stanard concluded that Ceko was psychologically unfit to resume his previous duties as a 911 dispatcher, but that Ceko could return to work in a clerical position. On January 26, 1990, Dr. Spivy again informed the Police Department that Ceko was physically able to assume the duties of a 911 dispatcher — provided, however, that Ceko takes medication and maintains regular doctor appointments. The Police Department never responded to Dr. Spivy's January 26 letter.

In a letter dated May 9, 1990, Holton informed Ceko that the Police Department had placed him on a one-year involuntary leave of absence. Holton stated that the leave of absence took effect on May 7, 1990. Shortly after being placed on involuntary leave of absence, Ceko filed this lawsuit against Holton, Dr. Stanard, Police Superintendent LeRoy Martin, and the City of Chicago.¹ Ceko contends that defendants violated his constitutional right to due process by failing to provide an opportunity to contest the Police Department's decision to place him on unpaid sick leave.² Defendants Holton, Martin, and the City now seek dismissal of Ceko's complaint.

II. DISCUSSION

In order to maintain a due process claim, Ceko must demonstrate that defendants deprived him of a constitutionally-protected property or liberty interest. Bishop v. Wood, 426 U.S. 341, 343, 96 S.Ct. 2074, 2076, 48 L.Ed.2d 684 (1976); Brown v. City of Lake Geneva, 919 F.2d 1299, 1303 (7th Cir.1990). Ceko asserts a deprivation of both a property interest and a liberty interest. Ceko alleges, in Count I of his complaint, that he was deprived of his property interest in continued employment, as well as the attendant benefits of such employment. Count II alleges a deprivation of a liberty interest in his "good name and employment prospects." The court will now consider each claim separately.³

A. Count I—Property Interest

It is well established that an individual cannot assert a property interest in a benefit unless he has a "legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Lohorn v. Michal, 913 F.2d 327, 335 (7th Cir.1990). Property interests do not arise from the Constitution; rather, they emanate from sources outside of the Constitution, such as state law. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1479 (7th Cir.1990).

Ceko contends that he has a property interest "in his continued employment, his salary and the benefits of his employment such as medical insurance, seniority and pension benefits." Verified Complaint, ¶ 17. According to Ceko, this property interest is created by Ill.Rev.Stat. ch. 24, para. 10-1-18.1 (1989), which provides in part:

In any municipality of more than 500,000 population, no officer or employee of the police department in the classified civil service of the municipality whose appointment has become complete may be removed or discharged, or suspended for more than 30 days except for cause upon written charges and after an opportunity to be heard in his own defense by the Police Board....

Upon the filing of charges for which removal or discharge, or suspension of more than 30 days is recommended a hearing before the Police Board shall be held.

....

Nothing in this Section limits the power of the superintendent to suspend a subordinate for a reasonable period, not exceeding 30 days.

This statute, which permits a discharge or long-term suspension only when there is cause for the dismissal, creates a property interest in continued employment. Confederation of Police v. City of Chicago, 547 F.2d 375, 376 (7th Cir.), cert. denied, 431 U.S. 915, 97 S.Ct. 2175, 53 L.Ed.2d 224 (1977); D'Acquisto v. Washington, 640 F.Supp. 594, 607 (N.D.Ill.1986). Defendants do not dispute that Police Department employees such as Ceko have a property interest in continued employment by virtue of paragraph 10-1-18.1. Nonetheless, defendants contend that paragraph 10-1-18.1 is inapplicable because Ceko was never actually discharged or suspended by the Police Department. While it is true that Ceko was not removed from employment in the strict sense of the term, he was effectively deprived of his salary when he was placed on involuntary leave of absence. Contrary to defendants' position, such a deprivation arouses due process concerns. "The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Roth, 408 U.S. at 576, 92 S.Ct. at 2708. Having acquired a property interest in his continued employment, Ceko has a legitimate claim of entitlement to the benefits associated with that protected interest—i.e., his salary. See D'Acquisto, 640 F.Supp. at 609. The interest in continued employment would be hollow indeed if it did not secure payment, the primary benefit of being employed.

The basic characteristic of a property interest is the continued flow of benefits, which may not be interrupted without an opportunity to be heard. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); D'Acquisto, 640 F.Supp. at 609. When the Police Department placed Ceko on involuntary leave of absence without pay, he was deprived of his protected property interest. Cf. Laurido v. Simon, 489 F.Supp. 1169, 1177 (S.D. N.Y.1980) ("placing a permanent Civil Service employee on an involuntary leave of absence based on a finding of mental unfitness implicates ... property interests protected under the Due Process Clause of the 14th Amendment"). The next issue, then, is whether Ceko was afforded adequate process in connection with this deprivation. Ceko contends that the Police Department's leave of absence policy does not satisfy the requirements of due process.⁴ In evaluating the adequacy of existing procedures, the court must keep in mind that "due process is flexible and 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). The court must balance the competing interests of the plaintiff and the government, and the relative strength of those interests. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985); Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). In Mathews, the Supreme Court indicated that the scope of due process protection hinges on three factors:

1 the private interest that will be affected by the official action; 2 the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3 the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. at 335, 96 S.Ct. at 903.

At a minimum, due process contemplates "some kind of a hearing." Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493. But the adequacy of the process does not rest solely on the existence of a hearing; the timing of the hearing is also a critical consideration. D'Acquisto, 640 F.Supp. at 612. A hearing, of course, cannot provide a sufficient opportunity to be heard unless it is held at "a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)....