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'
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.
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.
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 ...