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Sargent v. Ill. Institute of Technology





APPEAL from the Circuit Court of Cook County; the Hon. ARCHIBALD J. CAREY, JR., Judge, presiding.


Plaintiff appeals from the dismissal with prejudice of his complaint for back pay, injunctive and other equitable relief for his alleged wrongful discharge from his employment as a campus police officer at the Illinois Institute of Technology (IIT). On appeal, he contends that (1) IIT breached the employment contract between itself and plaintiff, the terms of which were set forth in a personnel manual adopted by defendant; (2) IIT's discharge of plaintiff frustrated plaintiff's legal rights and the public policy of Illinois; and (3) IIT's action constitutes State action and violated plaintiff's due-process rights under the Illinois and United States constitutions. We affirm. The pertinent facts follow.

In a three-count complaint, plaintiff alleged that he began his employment with IIT as a campus policeman on October 1, 1975, and so continued until he was discharged on April 18, 1978. He stated that as part of his regular equipment he was issued a personnel manual containing the rules and regulations of the campus police force, attached to his complaint as Exhibit A. He alleged that as part of the employment contract between himself and IIT, he agreed to follow these rules and regulations and that IIT agreed to evaluate his conduct and seek disciplinary sanctions, when necessary, according to the procedures prescribed in the rules and regulations. He specifically alleged that IIT was subject to the following express conditions contained in the manual:

"(1) Every member of the Illinois Institute of Technology Campus Police shall be subject to reprimand suspension, reduction in rank, deduction of pay or dismissal from the Campus Police Department and from the service of the college according to the nature of the offense for any of the following causes or for any violation of any of the other Rules, Regulations or orders of this department now in force or that may hereafter be issued.

(2) After having been given an opportunity to be heard in his own defense * * *."

Plaintiff alleged that as a further part of the employment agreement he agreed that his actions would be governed by a Chicago ordinance relating to "Special Policemen" (Municipal Code of Chicago, ch. 173) which he also attached to the complaint. In reliance on this agreement and pursuant to the statute, he underwent a character investigation, had his fingerprints lodged with the Bureau of Identification and met certain residency requirements which resulted in his commission as a special policeman. As such he must be licensed annually and pay a $10 license fee, which he paid in reliance on his contract with IIT. He also alleged that any other rules, regulations, or orders issued by IIT were incorporated by reference to the employment agreement.

The complaint stated that IIT's policy required that any disciplinary action be commenced by a notice specifying the name and position of the accused, the nature of the violation, any remarks, and the action taken, and that the policy was "to provide means for the prompt, confidential, and impartial resolution of staff-employees, job related problems."

The complaint recounted the events which plaintiff claims led to his discharge. Pursuant to an IIT grievance procedure which prohibited "intimidation, harassment, coercion or reprisal in any form against an employee presenting a grievance," plaintiff had filed a complaint against his superior, Henry Wurst, the superintendent of buildings and grounds. The grievance alleged that Wurst had used an IIT vehicle and gasoline for his personal transportation between September 1977 and March 1978 and charged him with "theft of services." After he filed the grievance, he spoke with Wurst's superior, Melvin Tracht, and expressed his fear that Wurst would seek his discharge "for any excuse that defendant Wurst could concoct" in retaliation for the grievance. Later, on April 7, 1978, plaintiff, in the performance of his police duties and in compliance with IIT's rules, detained a student to prevent him from violating IIT's rules and regulations. As a result of this incident, he was summarily suspended from the campus police force without any opportunity to be heard. On April 14, 1978, he received a "hearing subject to administrative review," to determine whether his appointment could be terminated "for cause." Wurst presided at the hearing which defendants Lyons, Clark, Vice and Dixon also attended. Plaintiff alleged that all of these defendants were aware of the grievance against Wurst. On April 20, 1978, plaintiff received a letter from Wurst stating that "based on the facts presented at the hearing and the written statements of those involved in the April 7, 1978 incident it has been decided that your employment should be terminated." In a subsequent letter defendant Martin, the president of IIT, informed plaintiff that "Based on this review, I do not believe the action taken to terminate your employment was in any way a result of the report made by you concerning Mr. Wurst's use of an Institute vehicle" and affirmed his termination.

Plaintiff alleged that defendants breached the employment contract in that they, inter alia: (1) did not evaluate his conduct according to the employment agreement or inform him that his conduct was in violation of Exhibit A, contrary to such rules and regulations; (2) provided no written notice of disciplinary action to be taken; (3) conducted an unfair hearing where Wurst, the subject of plaintiff's grievance, presided; (4) violated the agreement to prohibit reprisal by allowing retaliation by Wurst; (5) violated his right to be heard in his own defense by (a) not providing him with written charges, (b) not allowing him to present witnesses or to seek counsel, (c) not allowing him to confront witnesses, and (d) not having the proceedings transcribed and recorded; and (6) as a result of their actions left plaintiff without an adequate legal remedy for the "harm" to his personal and property rights and in his future career as a police officer.

The three counts sought relief on the following theories, respectively: (1) express contract; (2) implied-in-law contract; and (3) IIT's actions constituted State action and violated plaintiff's due-process rights. Plaintiff sought an injunction to prevent his discharge, or at least pending a disciplinary hearing, his reinstatement with full back pay, and other equitable relief.

Defendants filed a motion to dismiss plaintiff's complaint with prejudice for failure to state a cause of action. (Ill. Rev. Stat. 1977, ch. 110, par. 45.) Following plaintiff's answer to the motion and argument, the trial court allowed defendants' motion and this appeal followed.


• 1 Defendants' motion to dismiss admits as true all well-pleaded facts in the complaint (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187, 380 N.E.2d 790) but not conclusions of law or fact unsupported by allegations of specific facts upon which the conclusions are based. (Wilson v. LaSalle Manufacturing & Machine Co. (1978), 58 Ill. App.3d 219, 225, 374 N.E.2d 30; Roemer v. Zurich Insurance Co. (1975), 25 Ill. App.3d 606, 610, 323 N.E.2d 582.) Unless it clearly appears that no set of facts can be proved under the pleadings which would entitle plaintiff to recover, the complaint should not be dismissed. (Fitzgerald v. Chicago Title & Trust Co.; Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill.2d 128, 133, 361 N.E.2d 575.) With these principles in mind, we review the propriety of the trial court's order of dismissal.

Plaintiff first contends that the terms of the personnel manual adopted and issued by IIT to its employees became an employment contract binding both parties to its terms. He alleges that IIT discharged him without providing written allegations of any offense or an opportunity to be ...

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