United States District Court, Northern District of Illinois, E.D
March 27, 1985
JULIE ANN LYMAN, PLAINTIFF,
BOARD OF EDUCATION OF THE CITY OF CHICAGO AND DR. HARRY STRASBURG, DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
Plaintiff Julie Ann Lyman brings this action against
defendants, the Board of Education of the City of Chicago, and
Dr. Harry Strasburg, alleging violation of her constitutional
and statutory rights to employment. Count I is brought pursuant
to 28 U.S.C. § 1343, 2201, and 2202; 42 U.S.C. § 1983; and the
Fourteenth Amendment of the United States Constitution. Count
II is brought pursuant to the doctrine of pendent jurisdiction
and alleges violations of Ill.Rev.Stat., ch. 122, § 34-15.
Count III is brought under the doctrine of pendent jurisdiction
and alleges violations of the Illinois Open Meetings Act,
Ill.Rev. Stat. ch. 102, § 41 et seq.
Before the Court is defendants' motion to dismiss the complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Defendants have also requested that the issue of
plaintiff's status as a career service employee be treated
under Fed.R. Civ.P. 56. Finally, defendants have filed a motion
to strike the plaintiff's affidavit. For the reasons stated
below, defendant Board of Education's motion to dismiss is
granted. Defendant Dr. Harry Strasburg's motion to dismiss is
granted in part and denied in part. Defendants' request that
the issue of plaintiff's status as a career service employee be
treated under Fed.R.Civ.P. 56 is denied. Defendants' motion to
strike plaintiff's affidavit is granted without prejudicing
plaintiff's right to submit a new affidavit after discovery.
Plaintiff was hired as an employee of the defendant Board of
Education of the City of Chicago ("Board") on or about April 1,
1976. Plaintiff performed her duties satisfactorily for the
Board continually until June 13, 1983. Defendant Dr. Harry
Strasburg ("Strasburg") is the Deputy Superintendent for
Finance and Administration for the Board. On June 13, 1983,
Strasburg informed the plaintiff that her employment would be
terminated effective July, 1983 because of a budget cut. The
Board subsequently took action to terminate plaintiff's
Lyman alleges she was a career service employee of the Board.
Ill.Rev.Stat., ch. 122, § 34-15 provides, in part:
No civil service employee shall be removed except for cause.
The board by a vote of a majority of its full membership must
first approve a motion containing written charges and
specifications presented by the general superintendent of
schools. Such motion shall contain a request to the State Board
of Education to schedule a hearing on these charges before an
impartial hearing officer. . . .
Lyman further alleges that § 34-15 gave plaintiff the right to
continued employment unless terminated for cause, thus creating
a property interest in her employment. Lyman claims that the
Board did not subsequently reduce its budget and charges that
her termination was arbitrary and capricious in that she was
terminated for no valid reason. Lyman was never given a hearing
prior to termination as required by § 34-15.
The plaintiff predicates liability upon two theories. Count I
is a claim for monetary, injunctive, and declaratory relief for
defendants' violation of plaintiff's civil rights, specifically
their unconstitutional deprivation of her property interest in
continued employment. Count II is a pendent claim for damages
and declaratory relief for defendants' violation of plaintiff's
statutory rights to employment under Ill.Rev. Stat., ch. 122, §
34-15, which prohibits termination of civil service employees
without a showing of cause and a hearing on written
A. Defendants' Summary Judgment Request
Defendants have moved to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(6). In regard to the defendants' request
that the issue of plaintiff's status as a career service
employee be treated as a motion for summary judgment,
Fed.R.Civ.P. 12(b) states:
If, on a motion asserting the defense numbered (6) to dismiss
for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule
Fed.R.Civ.P. 12(b)(6). (emphasis added)
It is within the trial court's discretion whether to exclude
matters outside the pleadings. In this case, attorneys for the
defendant have submitted with their motion to dismiss one
affidavit and seven exhibits. This extraneous material is
considered matters outside the pleadings. Plaintiff, in her
memorandum in opposition to the defendants' motion to dismiss,
submitted one affidavit (by the plaintiff herself) and two
exhibits. Defendants have moved to strike much of plaintiff's
affidavit because it is not based on her personal knowledge.
Based upon Defendants' Motion to Strike, it is apparent that
defendants, and not plaintiff, have the advantage of access to
all the relevant information contained in the Board of
Education's records and files. For this Court to grant summary
judgment without giving the plaintiff equal access to such
information through the process of discovery would be unjust.
Summary judgment in favor of the defendants at this point in
the proceedings would be to deny the plaintiff her day in court
without even according her the benefits of discovery.
Therefore, the defendants' request that plaintiff's status as a
career service employee be treated under a motion for summary
judgment is denied.
B. The Board of Education's Motion to Dismiss
In Monell v. Department of Social Services of the City of New
York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the
United States Supreme Court held that municipalities and other
local government entities are "persons" subject to liability
under 42 U.S.C. § 1983 where the constitutional deprivation
suffered by the plaintiff can be casually linked to a
governmental "policy" or "custom." Rivera v. Farrell,
538 F. Supp. 291, 293 (N.D.Ill. 1982). There is a substantial
disagreement in this district as to the specificity of pleading
required in the context of a suit brought against a
municipality or other local government entity under section
1983 after Monell. However, as this Court has held in the
past, such a complaint must be dismissed if, when subject to
careful examination, the complaint appears to have merely
attached a conclusory allegation of "policy" to what is in
essence a claim based on a single unconstitutional act. See
Giarrusso v. City of Chicago, 539 F. Supp. 690, 693 (N.D.I11.
Based upon the Supreme Court's ruling in Monell, the Board
moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. The Board argues that Lyman's complaint is
devoid of any allegation that the actions of either the Board
or Dr. Strasburg were taken pursuant to any official policy or
The facts of the case have already been set out. The plaintiff
alleges she is a career service employee who by virtue of her
employment has a protected property interest to her job under
state law. In support of this allegation, the plaintiff puts
forth the following argument: First, plaintiff argues that
under Monell, school boards and municipalities can be held
liable under section 1983. Second, plaintiff admits that under
Monell municipalities cannot be liable under section 1983 on
a respondeat superior basis without an assertion that the
defendant acted pursuant to an unconstitutional policy.
Plaintiff asserts, however, that she is not alleging liability
under any theory of respondeat superior. Finally, plaintiff
argues that because she is not alleging liability under the
theory of respondeat superior, she therefore is not required to
show that the defendants acted pursuant to an unconstitutional
policy or practice. Plaintiff concludes that the defendants'
termination of plaintiff's employment was an unconstitutional
act of the municipality itself.
Plaintiff's strained logic, however, is not persuasive. Merely
because plaintiff is not asserting liability under respondeat
superior does not mean she is excused from alleging that
defendants acted pursuant to an unconstitutional policy or
practice. The plaintiff is misinterpreting the Supreme Court's
holding in Monell. According to Monell, the plaintiff must
not only show that her firing was an unconstitutional act, she
must also show that this act is part of the Board's official
policy, custom, or practice.
The court in Hamrick v. Lewis, 515 F. Supp. 983 (N.D.Ill.
1981), set forth the requirements for stating a claim for
relief under the standard for municipal liability under
Monell in the context of a motion to dismiss:
While it is unnecessary to show formal, documentary approval of
a governmental custom or policy in order to state a claim under
Monell, it is necessary to allege more than a single incident
of illegality as evidence of a governmental policy, custom, or
practice in order to state a claim for relief.
Id. at 985-86 citations omitted).
In this case, the plaintiff's complaint alleges a single,
wrongful incident — the asserted unconstitutional firing
of a career service employee without notice or a hearing. A
single instance of an unconstitutional firing is not sufficient
to support a claim that the firing was part of an official
governmental policy, practice, or custom. The plaintiff has
therefore failed to meet the requirements stated above for
municipal liability under Monell. Accordingly, the Board's
motion to dismiss Count I is granted.
Since all of plaintiff's federal claims against the Board in
Count I are dismissed before trial, the state claim alleged in
Count II against the Board is dismissed without prejudice for
lack of pendent jurisdiction. See Aldinger v. Howard,
427 U.S. 1, 16-17, 96 S.Ct. 2413, 2421-2422, 49 L.Ed.2d 276 (1976);
Moore v. The Marketplace Restaurant, 754 F.2d 1336, 1353-1354
(7th Cir. 1985); Knudsen v. D.C.B., Inc., 592 F. Supp. 1232,
1235 (N.D.Ill. 1984).
C. Dr. Harry Strasburg's Motion to Dismiss
Dr. Harry Strasburg, Deputy Superintendent for Finance and
Administration of the Board, moves to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. The
guidelines to be used in considering a motion to dismiss are
clear. A complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim that would
entitle him to the relief requested. Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).
Under the Federal Rules, it is well established that on a
motion to dismiss a complaint must be construed in the light
most favorable to the plaintiff, the allegations thereof being
taken as true; and if it appears reasonably conceivable that at
trial the plaintiff can establish a set of facts entitling him
to some relief, the complaint should not be dismissed. Hamrick
v. Lewis, 515 F. Supp. 983, 985 (N.D.Ill. 1981).
Strasburg argues that plaintiff was not a career service
employee and that plaintiff's claims are mere conclusory
allegations. In support of this allegation Strasburg argues
that the affidavits, exhibits, and memoranda filed herein by
both parties prove that the plaintiff actually did not have
career service status.
As has already been stated, the Court has, pursuant to Rule
12(b) of the Federal Rules of Civil Procedure, decided to
exclude all matters outside the pleadings. The affidavits and
exhibits upon which Strasburg relies are matters outside the
pleadings. Keeping in mind that for purposes of this motion
plaintiff's allegations are taken as true, and that Strasburg's
argument rests solely on the inadmissible affidavits and
exhibits, Strasburg has therefore failed to persuade the Court
that the plaintiff can prove no set of facts in support of her
claim. Accordingly, Strasburg's motion to dismiss Counts I and
II is denied.
Defendants' request that the issue of plaintiff's status as a
career service employee be treated as a motion for summary
judgment is denied. Defendant Board of Education's motion to
dismiss is granted on Counts I and III. The allegations in
Count II against the Board of Education are dismissed without
prejudice for lack of pendent jurisdiction. Defendant Dr. Harry
Strasburg's motion to dismiss is denied as to Counts I and II
and granted as to Count III. Defendants' motion to strike
plaintiff's affidavit is granted without prejudicing
plaintiff's right to submit a new affidavit after discovery.
IT IS SO ORDERED.