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February 7, 1985


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


This is an age, race and handicap discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Civil War statutes, 42 U.S.C. § 1981 and 1983. Defendants have brought a motion for summary judgment on some parts of the complaint. We grant that motion in part and deny it in part.


Plaintiff is a black person and is blind in one eye. At the time his complaint was filed, he was 50 years of age. Plaintiff was an employee of the City of Naperville, Illinois (the "City"), from July 1978 to August 1981, when he was discharged. Plaintiff alleges that his termination was motivated by his age, race and handicap, and that he was denied due process when not granted a hearing by the City's Personnel Board to review his discharge.

Plaintiff was hired as Data Processing Manager. He was interviewed by the City's Personnel Officer, who, according to plaintiff, informed plaintiff that if he were hired, his job would be protected by the City's Administrative Directive No. 29 ("AD. 29"), which he was told prevented discharge without cause and allowed a hearing designed to ensure him of job security. Holly Dep. at 19-20, 26-27. Greg Bielawekski, acting City Manager, was also present at this interview. Id. at 18.

Plaintiff accepted the position and received positive job evaluations with pay raises covering the period of July 1978 to January 1981. Plaintiff's Memorandum Urging Denial of Defendants' Motion for Partial Summary Judgment, Exhs. C(1)-(17). Originally, he was supervised by Bielawekski. Holly Dep. at 21-22, 60-61. When Bielawekski left the City's employ sometime in early 1980, plaintiff was then supervised by the new City Manager, defendant George Smith. Id. at 61.

According to plaintiff, the City's Finance Officer, defendant John Lawlor, began to interfere with plaintiff's Data Processing Office because Lawlor did not want an in-house processing office. Id. at 46-50. Plaintiff states that Lawlor also expressed a racial animus toward plaintiff and made several disparaging racial remarks to him. Id. at 56.

In 1980, when Bielawekski was in the process of leaving, the Financial Advisory Board, created by the City Council, recommended formation of a "Users' Group," a committee designed to advise on use of the City's computer system. Lawlor was a member of this Group, and plaintiff believed that formation of the Group was a removal of his authority as Data Processing Manager, and motivated by Lawlor's racial bias, since no other office was subject to such monitoring. Id. at 72, 77, 80, 83, 87, 103. Throughout 1980, plaintiff continued as Data Processing Manager, directly reporting to Smith and subject to the Users' Group supervision.

In December 1980, plaintiff visited cousins in California on his vacation. These cousins had formed a computer company and were working with the town of Fairfield, California. Plaintiff accompanied his cousins to a meeting with the Fairfield City Manager, at which the best systems for a city's data processing needs were discussed. Plaintiff informed Smith of this meeting. According to plaintiff, Lawlor learned of this meeting and accused plaintiff of trying to sell the City's computer programs to Fairfield. Holly Dep. at 166. Plaintiff believed that Smith became influenced by Lawlor's accusation and began to question plaintiff's integrity. Id. at 167.

Smith fired plaintiff in a meeting on August 5, 1981. Plaintiff asked Smith the reasons for his discharge and was not told. Id. at 272. During this meeting, Smith stated that he preferred having plaintiff resign rather than being fired because his chances of getting another job would be limited by his age, handicap and race. Id. at 273, 296.

According to plaintiff, he then told Smith that he wished his discharge to be reviewed by the City's Personnel Board, in accordance with AD. 29. Id. at 276. Plaintiff never spoke directly to the Board. Id. at 277. Plaintiff alleges that Smith told him such a hearing would be useless, since Smith's word would be final. Id. Plaintiff then requested a hearing from defendant Chester Rybicki, Mayor of the City. Id. at 280. Plaintiff states that Rybicki informed him that his discharge was a matter between plaintiff and Smith and that Rybicki did not want to become involved. Id. at 281.

Plaintiff was replaced by a white male, thirty-seven years old, with no handicap. Defendants' Answer to Plaintiff's Revised Interrogatory # 10.



Plaintiff alleges that his due process rights were violated because he was not given a hearing by the Personnel Board concerning his discharge. He bases his right to a hearing on two separate interests: (1) a property interest in continued employment with the City, and (2) a liberty interest in his good reputation. We deal with each in turn.

A. Property Interest

The requirements of due process apply to property interests created and defined by sources independent of the Constitution itself, such as state law. See Board of Regents v. Roth, 408 U.S. 564, 569-70, 577, 92 S.Ct. 2701, 2705, 2709, 33 L.Ed.2d 548 (1972). Plaintiff here claims AD. 29 to be the source of a property interest in his continued employment. AD. 29 lists reasons for disciplinary action against an employee of the City. The directive also states that when action is taken against an employee, "the employee shall be advised in writing that he or she may appeal the action to the Personnel Board as provided in the City Code." Defendants' Memorandum in Support of Motion for Partial Summary Judgment, Ex. A.

Section 7.105(b) of the City Code states:

  Powers. The personnel board shall hear appeals
  submitted by any regular employee relative to any
  suspension, demotion or dismissal. The personnel
  board shall also consider any personnel matter
  referred to it by the city manager for its
  recommendation. The personnel board shall submit a
  written statement of facts, findings, and
  recommendations to the city manager. When the Board
  finds the action appealed as been the result of
  political, religious or racial prejudice, its
  findings shall be final, and the city manager shall
  reinstate the employee in his position. In all other
  cases, the board's recommendations shall be advisory
  only, and the action taken by the city manager shall
  be final and conclusive. Any hearing conducted by the
  personnel board relating to an employee shall be open
  to the public if requested by the employee.

Id. at Ex. C.

Defendants argue that plaintiff has no property right in continued employment because plaintiff was a department head, and AD. 29 does not apply to department heads. Moreover, even if AD. 29 did apply to plaintiff, plaintiff failed to request an appeal before the Personnel Board.

Section 7.102 of the City Code states:

  Coverage . . . The following persons within the
  classified service are exempt from those personnel
  rules pertaining to appointment and removal:
  department heads, assistant department heads,
  division heads, and administrative secretaries and
  assistants in the city manager's office.


Defendants claim that plaintiff comes within the ambit of this exclusionary provision, and that, since AD. 29 cannot and does not purport to supersede § 7.102, plaintiff as a Department Head, cannot claim a property interest arising from the directive.

In support of their claim that plaintiff was a department head, defendants point to the following exchange ...

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