Gutierrez v. City of Chicago

• Decision Date: 21 March 1985
• Docket Number: No. 84 C 7441.,84 C 7441.
• Citation: 605 F. Supp. 973
• Court: U.S. District Court — Northern District of Illinois
• Parties: Ray GUTIERREZ, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.

605 F. Supp. 973

Ray GUTIERREZ, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.

No. 84 C 7441.

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

March 21, 1985.

Anthony G. Erbacci, Erbacci, Syracuse & Cerone, Ltd., Chicago, Ill., for plaintiffs.

Jerold S. Solovy, Barry L. Sullivan, Jenner & Block, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Plaintiffs, former employees of the City of Chicago, filed their complaint on August 28, 1984 against the City of Chicago, its Mayor, Harold Washington, and its Commissioner of Personnel, Charles A. Pounian, alleging that the defendants violated their constitutional rights by terminating them one day before their six month probationary periods of employment were due to expire. They seek reinstatement and damages for back pay and benefits. On October 19, 1984, the defendants moved to dismiss the complaint pursuant to Fed.R. Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted, or, in the alternative, to strike Counts IV and V of the complaint, pursuant to Fed.R.Civ.P. 12(f). For the reasons set forth below, this Court grants the motion to dismiss the complaint in part, denies it in part, and denies the motion to strike.

Facts¹

Plaintiffs were each employees in good standing of Chicago's Department of Streets and Sanitation, assigned to the Bureau of Equipment, before January 1, 1984. Prior to that date, they were each designated as Departmental Employment Services employees in the unskilled and semi-skilled labor trade and allied occupations.

Plaintiffs each allegedly played an active role as members of the Democratic Party in the 1983 mayoral campaign and election. They did not, however, support the nominee of the Democratic Party and the ultimate victor in the 1983 general mayoral election, Harold Washington. Each plaintiff is a white male who lives in a ward that allegedly is designated as anti-administration and whose alderman has consistently voted against Mayor Washington and his "pro-administration" wards. That ward also demonstrated a "predominant preference" for someone other than Washington in the campaign and election.

Plaintiffs' positions were reclassified by an appropriations ordinance from Departmental Employment Services to Probationary Career Services effective on January 1, 1984. The probationary period for each was from January 1, 1984 to June 30, 1984. Each plaintiff received two memoranda authored by defendant Pounian and dated January 10, 1984. The memoranda informed them of the change and included a copy of Rule IX of the City's Personnel Rules which governed the probation. (Complaint, Exhibits 2, 3.) In the memorandum to all employees, defendant Pounian stated:

Any such employee new probationary career service employee shall be required to serve a six month probationary period commencing January 1, 1984, provided however, that any such employee discharged during this probationary period shall be presented by the Commissioner of Personnel with a written statement of the reason for such discharge. Upon successful completion of this probationary period, such employee shall have career services status.

(Emphasis supplied.) In the second memorandum of that date directed specifically to new Probationary Career Services Employees, defendant Pounian stated:

Your work performance will be rated by your department twice during the six month probationary period. Ratings will be in March and June 1984. Rating factors include: (1) quality and quantity of work, (2) ability to work with others, (3) ability to learn, (4) ability to work safely, (5) initiative and acceptance of responsibility, (6) use of equipment, and (7) attendance and punctuality.

If you successfully complete your probationary period you attain full Career Service status in your title....

Employees ultimately attaining Career Service status were entitled to certain rights, including the right to written notice of disciplinary action and to a hearing prior to demotion or discharge.

On June 29, 1984, plaintiffs were each discharged allegedly for making false and misleading statements to City of Chicago investigators concerning an investigation of alleged improprieties in the Department of Sanitation, Bureau of Equipment in May, 1981. That investigation allegedly covered a substantial period of time and a large number of employees other than these plaintiffs, and no charges resulting from that investigation were brought against any plaintiff or any other Bureau employees.

In their five count complaint, plaintiffs allege that they were terminated not because of the 1981 investigation but because of their race and because of their political activity on behalf of opponents of the Mayor. They further allege that they did not violate the terms of their probation, but were discharged obviously for other non-legitimate reasons. Plaintiffs allege that by their termination, defendants: deprived them of their constitutional rights to due process in violation of 42 U.S.C. § 1983 (Count I); conspired to deprive them of their constitutional rights in violation of 42 U.S.C. § 1985 (Count II); unlawfully discriminated against them in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Count III); discharged them in retaliation for the exercise of their rights to free association in violation of the public policy of Illinois and of the United States (Count IV); and deprived them of their constitutional rights to freedom of speech, freedom of association, due process, and equal protection of the laws in violation of 42 U.S.C. §§ 1983, 1985, 1986, and 1988 (Count V).

Discussion

Count I—Due Process

Defendants contend that Count I of the complaint must be dismissed because the plaintiffs, as probationary employees, were employees at-will who had no constitutionally protected property interest in continued employment. Under Rule IX of the City's Personnel Rules covering plaintiffs' probationary employment, "A department head may discharge an employee during the probationary period provided the department head notifies the Commissioner of Personnel in writing." Defendants contend that this rule, in essence, provides that probationary employees such as plaintiffs are employees at-will who may be discharged at any time and for any reason or for no reason. See People ex rel. Shelton v. City of Chicago, 13 Ill.App.3d 729, 301 N.E.2d 162 (1st Dist.1973); Rose v. Civil Service Commission, 14 Ill.App.2d 337, 144 N.E.2d 768 (1st Dist.1957).

Plaintiffs respond by stating that in Count I of the complaint, they have alleged a "mutually explicit understanding" with defendants that they would continue their probationary employment and ultimately attain Career Service status unless they were discharged for "cause." To support their allegations that they were not "at-will" employees, but employees who could be discharged only for cause, they cite to that portion of defendant Pounian's January 10, 1984 memorandum which sets forth the seven rating factors by which their work performance purportedly was to be evaluated. They contend that because defendants enumerated rating factors based on quality of performance, they thereby "guaranteed" plaintiffs that they would not be discharged except for cause. Furthermore, they contend that in addition to the rating factors, the statement in the second January 10, 1984 Pounian memorandum to the effect that they would attain Career Service status upon satisfactory completion of the probationary period constituted a "mutually explicit understanding" that they would not be terminated except for cause. Perry v. Sindermann, 408 U.S 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (a "Faculty Guide" published by college constituted de facto tenure system giving rise to a constitutionally protected property interest); Begg v. Moffitt, 555 F.Supp. 1344 (N.D.Ill.1983) (court stated "it is not clear beyond doubt that plaintiff will be unable to prove a mutually explicit understanding between his employer and himself that he would be able to obtain outside employment and longevity increases except for cause.").

Defendants argue that the rating procedure provided in the January 10, 1984 memorandum was designed not to secure affirmative rights to continued employment to probationary employees, but to provide standards and guidelines to assist the City of Chicago in determining whether to retain or dismiss such employees in its discretion. To support their argument, defendants cite Alberty v. Daniel, 25 Ill.App.3d 291, 323 N.E.2d 110 (1st Dist.1974), in which the plaintiff alleged that he was terminated after an allegedly improper evaluation was conducted of him as a result of his supervisor's prejudice against him because of his race and national origin. The court held that the complaint did not state a cause of action against the defendant for failing to follow the rules and regulations for the evaluation of probationary employees, stating:

The principal purpose of the evaluation procedure is not to protect the rights of probationary employees, as plaintiff contends, but rather, to aid the department head in making a determination to either discharge or retain such employee.

323 N.E.2d at 116.

Defendants similarly contend that plaintiffs cannot rely on the statement in the January 10, 1984 memorandum that "if you successfully complete your probationary period you retain full career service in your title" to create a constitutionally protected property interest. The primary purpose of the career service laws and rules, they argue, is to "promote the good of public service" by enabling public employers to determine whether a permanent appointment is desirable, citing to Rose v. Civil Service Commission, supra 144 N.E.2d at 770.

The problem with this analysis is that it requires this Court to accept the purposes propounded by the defendants in their briefs without more—without any affidavits or...