Giannaris v. Frank
| Decision Date | 03 December 1974 |
| Docket Number | No. 72 C 267.,72 C 267. |
| Parties | John GIANNARIS, Plaintiff, v. Elliot FRANK et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Elmer Gertz, Wayne B. Giampietro, Chicago, Ill., for plaintiff.
Robert A. Tingler, Freeman & Tingler, Chicago, Ill., for defendants.
This cause comes before the Court on cross motions by the parties for summary judgment. The facts in the case as presented in the memoranda and affidavits submitted to the Court indicate that plaintiff Giannaris was employed by the Illinois Toll Highway Authority on June 2, 1969 as an Assistant Administrator of Purchasing. He claims that he was terminated because of his association with ex-Secretary of State Paul Powell on or about January 21, 1971.1
Plaintiff states in his affidavit that since his termination he has attempted to obtain other employment but has been unsuccessful. This failure to obtain employment he attributes to his being fired stating that: "This pall still hangs over him, so that he has been unable to obtain other employment in other state agencies, as well as other positions". Further he alleges that he was never given an opportunity for a hearing before he was discharged nor notified of the charges against him. Consequently plaintiff has brought this Civil Rights action under 42 U.S.C. § 1983. The allegations in the amended complaint appear to claim violations of plaintiff's constitutional rights, i.e., due process under the Fourteenth Amendment and freedom of association under the First Amendment.
At the outset it is important to note that the plaintiff was not protected from dismissal by civil service regulations or similar laws. This is not a case wherein a clerk, technician, or laborer was performing tasks which leave little room for judgment or opportunity for wrongdoing. Plaintiff was in a discretionary, sensitive, highly responsible position in which the Tollway Authority bondholders and the public must have absolute confidence. The main issue in this case centers around the question of whether any law or constitutional provision requires that charges of wrongdoing be placed against the plaintiff and a hearing provided before being discharged.
To rely upon the civil rights statutes the plaintiff must allege facts showing that the defendants did deprive him of rights, privileges and immunities secured by the Constitution and laws of the United States. Jenson v. Olson, 353 F.2d 825 (8th Cir. 1965); Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). To evaluate this question requires a look at cases which deal with summary discharge and the drawing of logical parallels between the plaintiff's allegations and defamation. In Tichon v. Harder, 308 F.Supp. 839 (D.C.Conn. 1970) the court approved the summary dismissal of a welfare employee without a hearing, finding neither substantive nor procedural due process violations, and commented that:
308 F. Supp. at 842.
The plaintiff we deal with here has certainly not lost his right to work, nor has a stigma attached to said plaintiff as a result of any action taken by any of the defendants which would in any way place him at a disadvantage in obtaining employment elsewhere. Government employment is not property or liberty and the due process clause does not apply per se to the holding of government office without showing a legally impermissible reason for discharge. Bailey v. Richardson, supra; Jenson v. Olson, supra; Kirker v. Moore, 308 F. Supp. 615 (S.D.W.Va.1970); Schultz v. Palmberg, 317 F.2d 659 (D.C.Wyo. 1970); Jordan v. The Metropolitan Sanitary District, 15 Ill.2d 369, 155 N.E.2d 297 (1959). In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L. Ed.2d 548 (1972) the failure to renew the contract of a non-tenured teacher was found not to require a pretermination hearing and the court concluded that the teacher had not been deprived of his "liberty" or "property." The court also found that none of the charges against the teacher imposed a "stigma" which would hinder future employment. In the case at bar there is likewise no stigma placed upon the plaintiff and indeed there could not be since, as the plaintiff alleges in his complaint, no charges were made against the plaintiff.
In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a teacher whose contract was not renewed alleged the existence of a de facto tenure program which he relied upon and which the court concluded gave the teacher a claim of entitlement to what would qualify as a "property" interest within the Fourteenth Amendment. But in the case at bar the plaintiff does not even claim he was entitled to continued employment.
It is also true that absent constitutional or legislative limitations to the contrary, government employees are subject to summary dismissal. Reagan v. United States, 182 U.S. 419, 21 S.Ct. 842, 45 L.Ed. 1162 (1901); Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828 (1903); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L. Ed.2d 1012 (1959); Cafeteria Workers Union v. McElroy, 109 U.S.App.D.C. 39, 284 F.2d 173 (D.C. Cir. 1960), aff'd. 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). In Alomar v. Dwyer, 447 F.2d 482 (2nd Cir. 1971, cert. denied 404 U. S. 1020, 92 S.Ct. 683, 30 L.Ed.2d 667 (1972) the court said:
"If and when additional exempt positions are to be subject to civil service protection is a matter for action by the appropriate municipal and state authorities and not by a federal court."
In Shurtleff v. United States, supra, the appellant was removed by the President from his position as General Appraiser of Merchandise, but appellant was never notified of any charges against him and knew of no cause of his removal. The Court said that the applicable statutes permitted removal for inefficiency, neglect of duty or malfeasance in office, and if removal was for one or more of these causes the appellant would be entitled to notice and a hearing. But the Court found that cause for removal was limited to the statutory specifications because Congress had not attached a condition upon removal that only the reasons specified would justify an employee's discharge. Therefore, the Court concluded that it must be presumed the President did not remove the appellant for any cause assigned in the statute because no notice or opportunity to defend was provided the employee, which thus permitted the summary discharge of the employee.
Unlike Shurtleff, the case at bar does not involve a statute and thus there is no issue as to whether certain reasons constitute exclusive causes for discharge or whether notice and a hearing are required.
The Court in Bailey v. Richardson, supra, aptly states that to hold office at the will of a superior and to be removable therefrom only by constitutional due process of law are opposite and inherently conflicting ideas. This court further found that:
182 F.2d at 59.
In the recent case of Indiana State Employees Assoc. v. Negley, 365 F.Supp. 225 (S.D.Ind.1973), aff'd. 501 F.2d 1239 (7th Cir. 1974), the court concluded that even political discharges were permitted with regard to policymaking employees. The trial court emphasized that absent controlling civil service or tenure legislation, the Constitution does not provide job security for public employees and that it would not be in the best interests of good government for a federal court to invade the state's legislative and executive branches. In affirming this case...
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