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GUTIERREZ v. CITY OF CHICAGO

March 21, 1985

RAY GUTIERREZ, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiffs, former employees of the City of Chicago, filed their complaint on August 28, 1984 against the City of Chicago, its Mayor, Harold Washington, and its Commissioner of Personnel, Charles A. Pounian, alleging that the defendants violated their constitutional rights by terminating them one day before their six month probationary periods of employment were due to expire. They seek reinstatement and damages for back pay and benefits. On October 19, 1984, the defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted, or, in the alternative, to strike Counts IV and V of the complaint, pursuant to Fed.R.Civ.P. 12(f). For the reasons set forth below, this Court grants the motion to dismiss the complaint in part, denies it in part, and denies the motion to strike.

Facts*fn1

Plaintiffs each allegedly played an active role as members of the Democratic Party in the 1983 mayoral campaign and election. They did not, however, support the nominee of the Democratic Party and the ultimate victor in the 1983 general mayoral election, Harold Washington. Each plaintiff is a white male who lives in a ward that allegedly is designated as anti-administration and whose alderman has consistently voted against Mayor Washington and his "pro-administration" wards. That ward also demonstrated a "predominant preference" for someone other than Washington in the campaign and election.

Plaintiffs' positions were reclassified by an appropriations ordinance from Departmental Employment Services to Probationary Career Services effective on January 1, 1984. The probationary period for each was from January 1, 1984 to June 30, 1984. Each plaintiff received two memoranda authored by defendant Pounian and dated January 10, 1984. The memoranda informed them of the change and included a copy of Rule IX of the City's Personnel Rules which governed the probation. (Complaint, Exhibits 2, 3.) In the memorandum to all employees, defendant Pounian stated:

  Any such employee [new probationary career
  service employee] shall be required to serve a
  six month probationary period commencing January
  1, 1984, provided however, that any such employee
  discharged during this probationary period shall
  be presented by the Commissioner of Personnel
  with a written statement of the reason for such
  discharge. Upon successful completion of this
  probationary period, such employee shall have
  career services status.

(Emphasis supplied.) In the second memorandum of that date directed specifically to new Probationary Career Services Employees, defendant Pounian stated:

  Your work performance will be rated by your
  department twice during the six month
  probationary period. Ratings will be in March and
  June 1984. Rating factors include: (1) quality
  and quantity of work, (2) ability to work with
  others, (3) ability to learn, (4) ability to work
  safely, (5) initiative and acceptance of
  responsibility, (6) use of equipment, and (7)
  attendance and punctuality.
  If you successfully complete your probationary
  period you attain full Career Service status in
  your title. . . .

Employees ultimately attaining Career Service status were entitled to certain rights, including the right to written notice of disciplinary action and to a hearing prior to demotion or discharge.

On June 29, 1984, plaintiffs were each discharged allegedly for making false and misleading statements to City of Chicago investigators concerning an investigation of alleged improprieties in the Department of Sanitation, Bureau of Equipment in May, 1981. That investigation allegedly covered a substantial period of time and a large number of employees other than these plaintiffs, and no charges resulting from that investigation were brought against any plaintiff or any other Bureau employees.

In their five count complaint, plaintiffs allege that they were terminated not because of the 1981 investigation but because of their race and because of their political activity on behalf of opponents of the Mayor. They further allege that they did not violate the terms of their probation, but were discharged obviously for other non-legitimate reasons. Plaintiffs allege that by their termination, defendants: deprived them of their constitutional rights to due process in violation of 42 U.S.C. § 1983 (Count I); conspired to deprive them of their constitutional rights in violation of 42 U.S.C. § 1985 (Count II); unlawfully discriminated against them in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e (Count III); discharged them in retaliation for the exercise of their rights to free association in violation of the public policy of Illinois and of the United ...


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