The opinion of the court was delivered by: Bua, District Judge.
The instant case was brought by the plaintiff seeking a Rule
to Show Cause under the 1972 consent decree entered in
Shakman v. Democratic Organization of Cook County, reprinted in
Shakman v. Democratic Organization of Cook County, 481 F. Supp. 1315,
1356 app. (N.D.Ill. 1979). Before the Court is the
plaintiff's Motion to Dismiss the First Amended Complaint based
on laches or, alternatively, for failure to state a claim. For
the reasons stated herein, the motion to dismiss is granted
based on laches.
Crabtree was employed by the City in the Department of Water
and Sewers from 1970 until January, 1981 at which time he
became ill and took a disability leave. When he was released
from his doctor's care in August, 1981, he attempted to return
to work by obtaining a letter to that effect from Eugene
Sawyer, Alderman of the 6th Ward. While plaintiff met with the
Commissioner of the Department, he was never rehired.
In May, 1982, plaintiff applied for unemployment
compensation. At that time, he alleges, he was informed for
the first time that he had been terminated. Thereafter,
plaintiff alleges that he contacted the Commissioner's office
and was informed that his status would be looked into. When he
received no response from that office, plaintiff contacted his
present counsel who, on November 17, 1982, wrote to the City's
Corporation Counsel. When this avenue proved to be fruitless,
a lawsuit was filed in the Circuit Court of Cook County,
Illinois. That suit, which had been filed on January 28, 1983,
was dismissed on September 19, 1983. On October 25, 1983 a
civil rights suit was filed in this District. The case was
assigned to Judge Grady who on March 28, 1984 dismissed
plaintiff's suit with leave to refile as a Shakman petition
assigned directly to this Court.
The City argues that because a substantial period of time
passed between plaintiff's termination and the filing of a
lawsuit, the instant suit should be barred by laches.
As this Court has previously noted:
A decision on the issue of laches rests within
the sound discretion of the trial court.
Baker Manufacturing Co. v. Whitewater Manufacturing
Co., 430 F.2d 1008, 1009 (7th Cir. 1970). This
discretion, while broad, is not unfettered by
appropriate standards. Goodman v. McDonnell Douglas
Corp., 606 F.2d 800, 804 (8th Cir. 1979). However,
where, as here, a case involves government
employment, the court is bound by public policy
which requires the prompt assertion of the
employee's rights so that government service is
disturbed as little as possible and two salaries
are not paid for a single service. Lingenfelter v.
Keystone Consolidated Industries, Inc.,
691 F.2d 339, 340 (7th Cir. 1982); Baker Manufacturing
Co., 430 F.2d at 1011-5.
Gurgone v. City of Chicago, 587 F. Supp. 1347, ___ (N.D.Ill.
1984). See, also, Shakman v. Democratic Organization of Cook
County (Petition of Joseph Galvin), 549 F. Supp. 801 (N.D.Ill.
In the case at bar, plaintiff Crabtree has been without his
job since he was released from his physician's care but not
reinstated to his former position. This occurred on August 9,
1981. Crabtree contends that he did not learn he had been
terminated until May, 1982 when he applied for unemployment
insurance. Thereafter, Crabtree contacted the Commissioner's
office and, when he received no response, contacted his
attorney. The latter contact occurred on November 17, 1982,
more than six months after he contends he learned of his
termination and more than fifteen months after he was released
from his doctor's care. Suit was not filed until two and
one-half months thereafter.
Crabtree's contention that he did not learn of his
termination until nine months after he was released from his
doctor's care and attempted to return to work is somewhat
suspect, especially in light of the circumstances extant. It
was not until Crabtree applied for unemployment compensation
that he admits to having learned of his termination. Yet, the
very act of applying for unemployment compensation tends to
indicate that Crabtree was fully aware that his status was
that of a terminated employee. This is especially true when it
is considered that the Commissioner of the Department failed
to contact plaintiff during the nine-month period following a
meeting between the plaintiff and the Commissioner.
In the case at bar, the basic facts are that during a period
of seventeen and one-half months, plaintiff made two meager
attempts to regain his position. These attempts were made
through channels which, it soon became obvious, were
ineffective. Moreover, as evidenced by the fact that plaintiff
attempted to use a letter from his alderman to regain his job,
plaintiff attempted to retain his job, albeit unsuccessfully,
by using political influence. In light of these circumstances,
the Court is bound to hold plaintiff's Shakman claim to be
barred by laches. Therefore, the instant matter is dismissed
without prejudice to the refiling of the cause under 42 U.S.C. § 1983.
As to such suits this Court does not have automatic
jurisdiction as it does in Shakman suits and expresses no
opinion as to whether a § 1983 claim would be timely.