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AURIEMMA v. CITY OF CHICAGO

October 23, 1984

JOHN AURIEMMA, DANIEL COLL, MARSHALL CONSIDINE, RENALDO COZZI, KENNETH CURIN, RUSSELL DITUSA, THOMAS FARRAGOI, LAWRENCE FORBERG, JOHN HINCHY, KATHRYN KAJARI, GEORGE MARCIN, PATRICK MCDONOUGH, WALTER MURPHY, JOHN RAFTER, DOMINIC RIZZI, JAMES STAMPNICK, THOMAS WALTON AND ROGER WHALEN, PLAINTIFFS,
v.
CITY OF CHICAGO, HAROLD WASHINGTON, CHICAGO POLICE DEPARTMENT AND FRED RICE, DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge.

MEMORANDUM OPINION AND ORDER

This action, like many brought in recent years, challenges an alleged municipal practice of firing or demoting public employees because of their political affiliations.*fn1 Plaintiffs are several members of the Chicago Police Department who held high-ranking positions in the force until defendant Harold Washington replaced Jane Byrne as Mayor of Chicago. Mayor Washington's newly-appointed Police Superintendent, defendant Fred Rice, demoted each of the plaintiffs shortly after taking charge of the force. Count I of plaintiffs' amended complaint alleges that these demotions deprived them of property without due process, in violation of the Fourteenth Amendment. Count II alleges that Mayor Washington and Superintendent Rice demoted plaintiffs to punish them for not supporting the Mayor's 1983 campaign, thus violating their rights under the First and Fourteenth Amendments. Defendants ("the City") have moved to dismiss. For the reasons stated below, the motion to dismiss is denied.

Facts

The following facts are taken largely from the allegations in the amended complaint, which we assume to be true for the purposes of this motion. Each of the plaintiffs held high positions in the police department. For example, plaintiff Auriemma was Commander of the Central Intelligence Unit. Plaintiff Considine was Director of the Crime Laboratory. Plaintiff Forberg was Commander of the Narcotics Section. Each plaintiff was demoted in late 1983 as part of what the amended complaint terms "massive demotions in the upper ranks of the Chicago Police Department."

Plaintiffs allege in Count I that they all had performed well in their jobs, that they had never been disciplined and that they all had received awards for their service. They further allege that Superintendent Rice demoted them without cause and without a hearing, contrary to a "long-standing custom and policy of the Police Department" that persons in plaintiffs' job categories be hired, fired, promoted, demoted or transferred solely on a merit basis. They conclude that their demotions without cause and a hearing violated their Fourteenth Amendment rights to due process of law.

Count II, in a sense, located the "cause" which was missing in Count I. Mayor Washington appointed Superintendent Rice, who is a political supporter of the Mayor. Plaintiffs allege that the Mayor directed the Superintendent to demote the plaintiffs, and that these demotions were intended to punish the plaintiffs for supporting mayoral candidates who opposed Mayor Washington in the 1983 campaign. Plaintiffs conclude that these politically motivated demotions violated their First and Fourteenth Amendment rights.

The City's motion to dismiss attacks the sufficiency of both counts in the amended complaint. We may dismiss the complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, ___ U.S. ___, ___, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). With this standard in mind, we turn to the City's motion.

The Procedural Due Process Claim

The City argues that the plaintiffs have alleged no protectible "property interest" in their jobs, and thus Count I fails to state a claim for relief under the Due Process Clause. It points out that each plaintiff held a position which was exempt from the City's so-called "Career Service" positions. "Career Service" employees are entitled by Ordinance to discharge or discipline only for cause following a hearing on the issue. Municipal Code of Chicago, §§ 25.1-5(12), 25.1-6. No such ordinance or statute limits termination of non-career service employees like plaintiffs. Because no statute or ordinance creates entitlement to retain plaintiffs' jobs, the City concludes that plaintiffs have no property interest in their former positions. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (to have a property interest, person must have legitimate claim of entitlement, arising out of State statute, rule or policy).

Before plaintiffs amended their complaint, we probably would have agreed with the City since the plaintiffs had alleged no legitimate, bilateral claim of entitlement to their former positions. But after receiving the City's motion to dismiss, plaintiffs amended their complaint to allege that the police department had a "longstanding custom and policy" that people holding plaintiffs' jobs would be demoted or fired for cause only. We hold that this complaint as amended sufficiently alleges a "property interest" within the meaning of Roth and its progeny.

Roth's companion case, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), held that even if no state statute or contract creates a property interest in a job, a person may still enjoy a "property interest" for due process purposes if the interest stems from "mutually explicit understandings" between the person and the state employer. Id. at 601, 92 S.Ct. at 2699. A plaintiff may allege and prove that the state agency has promulgated an "unwritten `common law'" of job tenure, which may be implied from "the policies and practices of the institution." Id. at 602-03, 92 S.Ct. at 2700; see also, e.g., Amendola v. Schliewe, 732 F.2d 79, 86 (7th Cir. 1984); Hadley v. County of DuPage, 715 F.2d 1238, 1241-42 (7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984). Plaintiffs' allegation, that police department custom requires that job discipline be based on cause determined after a hearing, plainly satisfies the requirements of Perry for the purpose of surviving a motion to dismiss.*fn2

  The City tries to distinguish Perry by directing us to one of
the Supreme Court's footnotes, which reads:

   . . If it is the law of Texas that a teacher in
  respondent's position has no contractual or other
  claim to job tenure, the respondent's claim would be
  defeated.

408 U.S. at 602, n. 7, 92 S.Ct. at 2700. The City argues that unlike Perry, in this case explicit state law does apply to plaintiff's job tenure, in that city rules vest the Superintendent with discretion to reassign plaintiffs as he deems appropriate. See City of Chicago Personnel Rules, Rule III, § 2.*fn3 We disagree that this Rule, or other state laws granting the Superintendent wide discretion in personnel decisions,*fn4 defeats the Perry allegation of a custom of merit-based job decisions. The alleged custom could very well supplement rather than contradict the Rules. Simply because state law gives the Superintendent broad discretion does not imply that he could not use his discretion to create a custom of merit-based job decisions. If plaintiffs can prove that past Superintendents have exercised their discretion in a way to follow the alleged custom, they would satisfy Perry. Cf. Soni v. Bd. of Trustees of the Univ. of Tennessee, 513 F.2d 347 (6th Cir. 1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976) ...


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