Zemke v. City of Chicago

• Decision Date: 13 November 1996
• Docket Number: No. 96-1066,96-1066
• Citation: 100 F.3d 511
• Parties: Alexander ZEMKE, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 511

100 F.3d 511

Alexander ZEMKE, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.

No. 96-1066

United States Court of Appeals Seventh Circuit

Argued September 13, 1996

Decided November 13, 1996

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 95 C 1961, John F. Grady, Judge.

Gerald A. Goldman, Arthur R. Enrlich (argued), Jonathan C. Goldman, Chicago, IL, for Plaintiff-Appellant.

Lawrence Rosenthal, Thaddeus Machnik, Benna R. Solomon, Anne Berleman Kearney (argued), Susan S. Sher, Office of the Corporation Counsel, Appeals Division, Chicago, IL, Barbara L. Anderson, City of Chicago, Department of Law, Chicago, IL, for Defendant-Appellee.

Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Alexander Zemke filed a complaint in state court against the City of Chicago, but the City removed the case to the district court for the Northern District of Illinois because it contained a federal claim alleging a violation of due process of law actionable under 42 U.S.C. sec. 1983. The complaint also alleged state law claims for breach of contract and declaratory judgment. All claims were dismissed on a Rule 12(b)(6) motion and Zemke appeals.

We assume, for purposes of our de novo review of a decision granting a motion to dismiss a complaint, that its allegations are true. The complaint tells us that Zemke was an electrician, employed by the City of Chicago. In 1989 he was injured on the job and could not perform his usual duties. In May 1991 his doctor released him to return to the job. In August 1991 he was notified that the City had an opening for an electrician in its water department. Zemke interviewed for the position and afterwards Stephen Carmody (Carmody, who is not a party to this suit, apparently works for Chicago's department of personnel but his exact position is not identified in the complaint) repeatedly advised Zemke that the job was his and that all necessary paperwork had been completed.

Zemke alleges that he told Carmody that he accepted the position; in fact, during the tail end of 1991 and throughout 1992, he says he called Carmody continually to find out when he should report to work. He was told to be patient; the City would get back to him. However, he was never given a starting date or placed in the position. Finally, he was told that "something" caused the delay. Eventually, in 1994, he was placed in a different position.

Also in 1994, Zemke reviewed his personnel file. To his surprise, he discovered it contained an undated "Notice of Job Offer" which offered him the position in question as an electrical mechanic in the water department with a starting date of October 16, 1991. Under the personnel rules for the City, the commissioner of personnel, the budget director, and the head of the department in which a position exists must approve an applicant's appointment to the position. The notice found in Zemke's personnel file, attached to the complaint as Exhibit A, was signed by the department head, the commissioner of personnel, and the budget director. The notice includes instructions regarding acceptance of the offer: "Please indicate your acceptance or non-acceptance by checking one box and signing below." Zemke says he never received and for that reason never signed the document.

The district court dismissed the complaint, stating that Zemke had no cognizable property interest in the new job. In arriving at that conclusion, the court necessarily determined that no binding contract, oral or written, existed between Zemke and the City of Chicago. Accordingly, both the state law contract claim and the request for a declaratory judgment were dismissed, along with the federal claim under sec. 1983.

We will affirm the dismissal of a complaint if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). We accept as true all facts alleged in the complaint and draw all reasonable inferences from those facts in favor of Zemke. Mosley v. Klincar, 947 F.2d 1338 (7th Cir. 1991).

Although Zemke's complaint has other deficiencies, we'll move quickly to one that dooms his federal claim. In any case alleging a denial of due process for the deprivation of a property right, the basic question is whether the property right exists. Such a right must be based on a source independent of the Constitution--for instance, state law or, in this case, a contract with the state. In order to be constitutionally cognizable, the property right must involve something to which a person has a "legitimate claim of entitlement." A unilateral expectation is not sufficient. Board of Regents v. Roth, 408 U.S. 564 (1972); Buttitta v. City of Chicago, 9 F.3d 1198 (7th Cir. 1993).

Essentially, although he attempts to avoid so limiting his argument, Zemke claims that either a written or oral contract gave him a protectable property interest. We agree, however, with the district court that no such interest arose.

The elements of a contract, taught like the ABC's to...