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Dixon v. Cahill

MARCH 16, 1973.

OSCAR DIXON, PLAINTIFF-APPELLANT,

v.

WILLIAM E. CAHILL ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from the dismissal of his complaint for mandamus and an accounting asking that he be given a copy of the seniority list for truck drivers by the Chicago Civil Service Commission, that a suspension be deleted from his employment record and that he be awarded back pay for a two and one-half month layoff and for periods of time when he was allegedly denied the opportunity to work overtime. The defendants filed a motion to "Strike and Dismiss" the complaint. After a hearing on the motion at which arguments of counsel were heard, the court concluded that plaintiff had shown no clear legal right to the production of the seniority list and that the other relief sought was barred by the doctrine of laches.

On appeal plaintiff contends that the complaint did show a clear legal right to the relief sought. He has failed to address the issue of laches in his brief filed in this court. The defendants did brief the issue but plaintiff filed no reply brief. During oral argument counsel for plaintiff contended that the doctrine of laches was improperly invoked because it was a factual issue and therefore should not have been decided on a motion to dismiss.

Plaintiff's complaint, filed on May 3, 1971, alleged that after passing civil service examination No. 6965 for truck drivers on October 13, 1965, plaintiff was assigned to the Central Office of the Bureau of Sanitation of the City of Chicago as a street sweeper; that on November 24, 1969, he was transferred over protest to the Bureau of Equipment in violation of the Rules of the Civil Service Commission since there were other employees in the Bureau of Sanitation with less seniority than the plaintiff; that as a result of the transfer he lost the opportunity to work overtime in the Bureau of Sanitation at the Central Office; that on December 21, 1969, and again on January 11, 1970, plaintiff requested a copy of the "revised" list of the results of examination No. 6965 from the Commission but was refused such on both occasions; that on February 2, 1970, he was laid off from the Bureau of Equipment in violation of Rule IX of the Commission and was given a suspension for 29 days without a hearing although he requested one; that he was reassigned to work on April 15, 1970, in the Bureau of Sanitation at the Central Office; that on November 17 he was again transferred from the Central Office to an office at 103rd Street and Doty as a garbage truck driver; that this was in violation of his seniority rights and once again deprived him of the opportunity to work overtime at the Central Office; that on March 29, 1971, he was transferred back to the Central Office of the Bureau of Sanitation where he is still employed. A further claim was made that on several occasions he was denied a copy of the Civil Service Commission Rules upon request; it is not mentioned when the alleged requests were made. (At the hearing plaintiff acknowledged that he had a copy of the Rules; his counsel was unaware of this fact.)

The defendants filed a motion for a Bill of Particulars to which plaintiff responded that on December 21, 1969, he sent a letter to the Civil Service Commission requesting a copy of the "revised" list of persons who took examination No. 6965 for truck drivers in October 1965 (the letter stated that plaintiff had a copy of the "original" list); in response he received a letter from the Secretary of the Commission stating that the Commission did not have a copy of the "revised" list. The Bill of Particulars further stated that when plaintiff was laid off on February 2, 1970, he asked his employer to lay off someone with less seniority; he was informed that he had no seniority rights.

The defendants' motion to "Strike and Dismiss" the complaint stated that plaintiff had shown no clear right to the relief sought; that plaintiff's intra-departmental transfers were in compliance with the Rules of the Civil Service Commission; that his claim as to the layoff and suspension was barred by laches; and that the complaint was fatally defective for failing to join the head of the Department of the Bureau of Streets and Sanitation as a party to the action. As noted earlier, the motion was granted on the grounds that plaintiff had shown no clear legal right to the production of the seniority list and that the other relief sought was barred by laches.

Opinion

Plaintiff complains of three financial injuries, a suspension and the related "refusal" of the Commission to supply him with the seniority list for truck drivers. The financial injuries are first, the loss of overtime work due to the alleged illegal transfer from the Bureau of Sanitation to the Bureau of Equipment on November 24, 1969; *fn1 second, the loss of pay due to the layoff from the Bureau of Equipment from February 2, 1970, to April 15, 1970 (when he was reassigned to the Bureau of Sanitation, Central Office); and third, the loss of overtime work due to the alleged illegal transfer from the Central Office of the Bureau of Sanitation to its office at 103rd and Doty on November 17, 1970.

• 1 We believe that plaintiff is barred from any remedy as to the first two alleged financial injuries by the doctrine of laches. Laches is the neglect to assert a right or claim which, taken together with the lapse of time and circumstances causing prejudice to the opposite party, will bar a complaint in equity. Schoenbrod v. Rosenthal, 36 Ill. App.2d 112, 183 N.E.2d 188.

• 2, 3 Delay in prosecuting a cause of action is one of the elements of laches and its importance is relative to the action involved. As stated in Kadon v. Board of Fire and Police Commrs., 45 Ill. App.2d 425, 430, 195 N.E.2d 751:

"[I]n civil service cases, where prolonged delay may easily prejudice governmental bodies, impair orderly procedures and work to the disadvantage of third parties, time is an essential factor."

Kadon went on to note that in civil service discharge cases the general rule is that an action must be brought within six months of the allegedly illegal discharge unless there is a reasonable explanation for the delay. See People ex rel. Cifaldi v. Wilson, 38 Ill. App.2d 302, 187 N.E.2d 353; People ex rel. Ballinger v. O'Connor, 13 Ill. App.2d 317, 142 N.E.2d 144.

In the instant case, from the face of the complaint, it appears that the first transfer complained of occurred more than 17 months prior to the filing of the complaint. The layoff and suspension complained of occurred about 15 months prior to the filing, and, with respect to the layoff, 14 months after plaintiff had a statutory right to a hearing regarding its propriety since it then exceeded 30 days. *fn2 No reasonable explanation is given for the delay.

• 4 Contrary to plaintiff's assertion during oral argument, the defense of laches may be considered on a motion to dismiss a complaint if its applicability appears from the face of the complaint or by affidavits submitted with the motion. Holland v. Richards, 4 Ill.2d 570, 574, 123 ...


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