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May 6, 1980


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

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

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 claim.

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 ...

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