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 ...