The opinion of the court was delivered by: Bua, District Judge.
Defendants Schmidt, Sheets, Rauk, Stanopher, and Helwig move
the court to dismiss Counts II and IV of the plaintiff's
second amended complaint as it pertains to them. This court
previously granted the defendants' motion to dismiss Count II
for failure to allege sufficient facts to show the existence
of a conspiracy and Count IV, a pendent state claim, for lack
of jurisdiction. The plaintiff has amended his complaint,
attempting to cure the defects in Counts II and IV, and to add
Count V, which is a petition for a mandamus under Illinois
law. The Blue Island Fire Department, Civil Service
Commission, and Fire Chief Schultz are the only defendants
named in Count V. For the reasons that follow, the defendants'
motion to dismiss is denied with respect to Count II, but
granted with respect to Counts IV and V.
Count II alleges, in essence, that the moving defendants,
because of their anti-Semitism, conspired with supervisory
personnel of the Blue Island Fire Department and members of
the Civil Service Commission to cause the plaintiff's
discharge from the Department. According to the complaint, the
defendants' actions deprived Klupt of his civil rights in
violation of 42 U.S.C. § 1983. Jurisdiction lies pursuant to(3).
28 U.S.C. § 1343
This court's previous order, dated November 20, 1979,
discusses the facts and issues involved herein. Basically, the
defendants continue to challenge the sufficiency of the
conspiracy allegations. They contend that the allegations are
conclusory and fail to show the "necessary personal
involvement on the part of these moving defendants."
The plaintiff's first amended complaint merely had alleged
that Klupt had been treated differently and had been made the
target of extremely unpalatable anti-Semitic jokes. To this
was added the general recitation of a conspiracy between the
moving defendants and various officials of the Department and
Commission. This court's November 20, 1979 order thus held the
conspiracy allegation to be vague and conclusory, because it
was "not supported by any facts establishing the moving
defendants' direct participation in a scheme to cause
plaintiff's discharge." Memorandum Order, p. 4.
Klupt's second amended complaint, paragraph 12, adds the
following allegations to establish the acts "in furtherance of
the conspiracy to cause plaintiff's discharge":
[Movants' acts] consisted of their harassing
plaintiff with anti-Semitic remarks, despite
plaintiff's requests that they desist therefrom,
thus causing plaintiff emotional distress and
leading to his discharge as herein set forth,
and, in addition, plaintiff is informed and on
the basis of such information believes that said
defendants, except Helwig, met on one or more
occasions with one or more of defendants Schultz,
Holdefer, Duey and Lombardo and suggested in
effect that plaintiff would not be welcome as a
member of the Blue Island Fire Department, the
basis of such suggestion being substantially that
plaintiff would not and could not abide their
anti-Semitism and that of Helwig . . .
Accepting these allegations as true for the purposes of this
motion, the court finds that Count II of the second amended
complaint states a claim upon which relief can be granted. The
actionable conduct of a conspiracy to violate § 1983 is not the
defendant firefighters' purported harassment of the plaintiff.
Rather, it is the defendants alleged meetings with their
supervisors, during which the "suggestion" was made that the
"plaintiff would not be welcome" as a fellow fireman, because
of defendants' anti-Semitism.
The elements of a conspiracy to violate § 1983 were discussed
in this court's previous order, wherein it was stated that
there must be an allegation that the defendants, acting under
color of state law, conspired to deprive (and did in fact
deprive) the plaintiff of a federal right. The firefighters'
alleged conspiracy with their supervisors to deprive the
plaintiff of his job on anti-Semitic grounds, in violation of
Title VII, fulfills the basic requirements of pleading a claim
sufficiently to give the defendants adequate notice of the
charges against them. Defendant Helwig, however, is expressly
excluded from paragraph 12 of Count II — the key allegation of
the conspiratorial meeting — and therefore, the motion to
dismiss with respect to him is granted. With respect to the
remaining defendants, however, the motion is denied.
Count IV purports to state a claim, under Illinois law, for
intentional infliction of emotional distress. The defendants
contend that this court has no jurisdiction, and,
alternatively, that Count IV does not state a cognizable
In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130,
16 L.Ed.2d 218 (1966), the Court enunciated the test for
determining whether pendent jurisdiction satisfies Article III
of the Constitution; that is, whether the federal and
nonfederal claims arise from a "common nucleus of operative
fact." The claims must be ones that ordinarily would be tried
together. Id. at 725, 86 S.Ct. at 1138. Moreover, the federal
court must avoid "needless decisions of state law," as a
"matter of comity." Finally, because pendent jurisdiction is a
matter of the court's discretion rather than the plaintiff's
right, the federal court must ...