Swick v. City of Chicago

• Decision Date: 02 December 1993
• Docket Number: No. 92-4115,92-4115
• Citation: 11 F.3d 85
• Parties: Ronald SWICK, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 85

11 F.3d 85

Ronald SWICK, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.

No. 92-4115.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1993.

Decided Dec. 2, 1993.

James R. Potter, Kinoy, Taren, Geraghty & Potter, Chicago, IL (argued), for plaintiff-appellant.

Lawrence Rosenthal, Deputy Corp. Counsel, Mardell Nereim (argued), Kelly R. Welsh, Asst. Corp. Counsel, Benna R. Solomon, Joan Flynn, Asst. Corp. Counsel, Paulette A. Petretti, Office of the Corp. Counsel, Appeals Div., Chicago, IL for defendants-appellees.

Before POSNER, Chief Judge, and CUDAHY and KANNE, Circuit Judges.

POSNER, Chief Judge.

Ronald Swick, a veteran Chicago police officer, was placed on involuntary sick leave for more than a year beginning in February 1990, because of alleged psychological problems. His income was not diminished, because while he received no salary during the period of the involuntary leave he received the same amount of money in the form of sick pay. But he was required to turn in his badge and gun and was forbidden to wear his uniform or exercise the arrest or other powers of a police officer. His suit claims that he was placed on leave without a hearing or other safeguards, and thus denied due process of law. The district court dismissed the suit on the ground that Swick had not been deprived of property within the meaning of the due process clause of the Fourteenth Amendment.

When state law confers tenure or some other right on a public employee--confers, that is to say, an entitlement as distinct from merely the hope or expectation that his employer's discretion will be exercised in his favor--the right is considered a form of property of which the employee may not be deprived without due process of law. Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976); Altman v. Hurst, 734 F.2d 1240, 1242 (7th Cir.1984) (per curiam). The state law upon which Swick relies provides that a nonprobationary police officer may not be "removed or discharged, or suspended for more than 30 days except for cause." 65 ILCS 5/10-1-18.1 (1993 Supp.). Swick argues that to be placed involuntarily on sick leave is to be suspended--a dictum in Gibson v. City of Chicago, 910 F.2d 1510, 1517 (7th Cir.1990), suggests that a police officer stripped of his authority by being placed on sick leave has been the equivalent of "suspended" from his office--and he points out that the statute is not limited to suspensions without pay and that loss of the accouterments of a public officer's authority and badge of office can inflict dignitary and psychological harm. But he does not suggest that the "suspension" inflicted any pecuniary loss, direct or indirect. It is true that by using up a year's sick leave Swick was in danger of not having enough sick-leave benefits to make up for the loss of his regular salary should he again be placed on sick leave after his reinstatement to duty. But the danger never materialized, as he retired shortly after being reinstated. The danger was never great, because a police officer in Chicago is entitled to a full year's sick-pay benefits for every two years that he is employed. Swick does not argue that he lost pension or welfare benefits as a consequence of having been forced to take sick leave, or that he could have cashed out unused sick leave on retirement. We can imagine a case in which a period of forced inactivity impeded promotional opportunities or had other indirect effects on post-retirement income (cf. Moskowitz v. Trustees of Purdue University, 5 F.3d 279, 282-84 (7th Cir.1993)), but that is not argued either and would be implausible since Swick was on the verge of retirement.

The city argues that Swick was not suspended and alternatively that if he was he suffered no deprivation. We agree that he was not suspended and that "no Illinois law ... protects a Chicago patrol officer from adverse action short of discharge or suspension." Confederation of Police v. City of Chicago, 547 F.2d 375, 376 (7th Cir.1977). Suspension, like removal and discharge, is normally a disciplinary measure; This is plain from the statute's references to "charges," "improper or illegal act," and "defenses," and even more clearly from the preceding section, which refers to "suspension, removal or discharge" as "disciplinary action." 65 ILCS 5/10-1-18(c) (1993 Supp.); see also Burton v. Civil Service Comm'n, 76 Ill.2d 522, 31 Ill.Dec. 791, 793, 394 N.E.2d 1168, 1170 (1979); van Blommesteyn v. Dept. of Children & Family Services, 164 Ill.App.3d 1094, 116 Ill.Dec. 27, 31, 518 N.E.2d 649, 653 (1987); Bauer v. City of Chicago, 137 Ill.App.3d 228, 91 Ill.Dec. 863, 866, 484 N.E.2d 422, 425 (1985). It is understandable, therefore, why police unions should insist that an officer not be suspended without cause, even if the suspension is with pay, although an alternative reading of the statute (not one more favorable to Swick, however) is that the suspension to which it refers is, implicitly, a suspension without pay. This is plausible in light of the bracketing of suspension with removal and discharge, both of which actions entail a cessation of pay, and is supported by case authority. E.g., Clark v. Morris, 99 Ill.App.2d 24, 240 N.E.2d 515, 518 (1968); McCoy v. Kamradt, 136 Ill.App.3d 551, 91 Ill.Dec. 198, 204, 483 N.E.2d 544, 550 (1985); see also Bauer v. City of Chicago, supra, 91 Ill.Dec. at 866, 484 N.E.2d at 425. Placing a person on sick leave is not a disciplinary measure; nor does Swick argue that by forcing him to take sick leave for alleged "psychological" problems, still a source of stigma in our culture, the city harmed his reputation in a way that might be actionable under the Fourteenth Amendment.

But even if this is wrong and Swick was suspended within the meaning of a statute that creates an entitlement not to be suspended for more than thirty days without cause, we do not think he has a claim under the Fourteenth Amendment. We do not think that "property" within the sense of the amendment should be extended to the purely dignitary or otherwise nonpecuniary dimensions of employment. Versarge v. Township of Clinton, 984 F.2d 1359, 1370-71 (3d Cir.1993); cf. Hardiman v. Jefferson County Bd. of Education, 709 F.2d 635, 638 (11th Cir.1983). Some people love their work. But if unjustly placed on sick leave with (in effect) full pay, Swick could have taken another job and thus ended up with more money for the year than if he had been allowed to continue to do his police work. Perhaps not enough money to balance the diminution in psychic satisfaction if he loves police work as much as he claims. (But then why did he retire when he did? Maybe he had reached mandatory retirement age, but we are not told.) But the difference if any is too small, and too difficult to measure, to...