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United States District Court, Northern District of Illinois, E.D

October 2, 1985


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


Plaintiff John Fontano (Fontano) filed an amended civil rights complaint against defendants City of Chicago (City) and Eugene Barnes (Barnes), the acting commissioner of the Department of Sewers. Count I alleges that defendants terminated Fontano's employment as a probationary career service laborer in deprivation of his federal constitutional and civil rights. The remaining two counts assert pendent state claims. The case is before the court on defendants' motion to dismiss the complaint for failure to state a cause of action.

I. Factual Background

On January 1, 1984, a City ordinance reclassified Fontano from an at-will Departmental Service Employee to a Probationary Career Service (PCS) employee. The City notified Fontano and other employees of this change in status by a memorandum dated January 10, 1984. Exhibit "A" to Complaint.

The memorandum specified that Fontano would "serve a probationary period of six months . . . prior to attaining Career Service status." Id. During his probationary period, Fontano would be governed by the City's Personnel Rules regarding PCS employees. In particular, the memorandum contained a copy of Personnel Rule IX, which includes the following provision:

Section 3 — Discipline of Probationers

    The department head may suspend a probationary
  employee. The employee does not have the right to
  request review of such action.

    A department head may discharge an employee
  during the probationary period provided the
  department head notifies the Commissioner of
  Personnel in writing.

The memorandum also informed Fontano that his work performance would be rated twice during the probationary period on the basis of seven factors.*fn1 Finally, the memorandum explicitly stated that "[i]f you successfully complete your probationary period you attain full Career Service status . . ., which entails, among other things, the right to a hearing in the event of a discharge. Id.

Municipal ordinance ch. 25.1 establishes the City Department of Personnel and authorizes the issuance of Personnel Rules. Chicago, Ill., Municipal Code ch. 25.1 (appended as Exhibit "B" to Complaint). One of the broad purposes of the ordinance is "to provide for a professional and progressive merit system for employment." Id. at ch. 25.1-1. The ordinance does not separately define "PCS employee."

The Personnel Rules expressly provide that an "employee acquires Career Service status . . . upon satisfactory completion of the probationary period." Rule III, § 5(2); see also Rule IX, § 4 (appended as Exhibit "C" to Complaint). Rule IX, § 3, quoted above, empowers the department head, in this case Barnes, to suspend or discharge a PCS employee without a hearing. The Personnel Rules sometimes place PCS and Career Service employees in the same category, but only with respect to matters unrelated to employment tenure. E.g., Rules XI, § 1 (leave of absence); XVI (grievance procedure). It is undisputed that the ordinance and the Personnel Rules nowhere state that a PCS employee shall be dismissed for just cause only.

Defendants allegedly failed to rate Fontano's probationary work performance in accordance with the City's memorandum. On June 29, 1984, Barnes advised Fontano by letter that his employment was terminated. Exhibit "D" to Complaint. About a week later, Fontano received another letter from the City stating that the reason for his discharge was "excessive absenteeism."*fn2 Exhibit "E" to Complaint.

Fontano claims that he acquired a property right in his employment when he was given probationary employee status. Fontano alleges that he was entitled to have his probationary work performance rated according to merit. Thus, Fontano asserts, his termination without a hearing violated his constitutional due process and civil rights.

II. Discussion

The sole issue before the court is whether Fontano has adequately alleged a property interest in continued public employment under the due process clause of the fourteenth amendment. The court, of course, may not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

The Supreme Court has held that a property interest arises if there are "rules or mutually explicit understandings" to support a claim of entitlement. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); see also Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1263 (7th Cir. 1985). A legitimate claim of entitlement, however, is "more than an abstract need or desire" or "a unilateral expectation." Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

To determine whether plaintiff has a right to keep his job, the court must turn to state law. E.g., Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Patkus, 769 F.2d at 1263. Under Illinois law, as under federal standards, public employees who cannot be dismissed except for cause have a property interest in their positions. Patkus, 769 F.2d at 1263 (citing Powell v. Jones, 56 Ill.2d 70, 77, 305 N.E.2d 166 (1973)); cf. Levin v. Civil Service Commission, 52 Ill.2d 516, 521, 288 N.E.2d 97 (1972).

The exhibits attached to the complaint make clear that Fontano did not have a legitimate expectation of continued employment when he was reclassified as a probationary employee. The City's memorandum and the Personnel Rules expressly condition the attainment of full career service status and the accompanying right to a pretemination hearing upon successful completion of the six-month probationary period. See Exhibits "A" and "C" to Complaint. Furthermore, the memorandum incorporated Personnel Rule IX, § 3, which unequivocally states that a PCS employee may be summarily suspended or discharged.

Fontano's argument that the ordinance and Personnel Rules establish a property interest for all PCS employees is specious. See Giliberto v. City of Chicago, No. 85 C 2496, slip op. at 4 (N.D.Ill. Sept. 6, 1985) [Available on WESTLAW, DCTU database]; cf. Randle v. City of Chicago, 527 F. Supp. 1, 10 (N.D.Ill. 1979). First, Fontano's reliance on the ordinance's general goal to enact a merit system of employment ignores the specific provisions of the Personnel Rules that, pending successful completion of the probationary period, a PCS employee may be terminated without a hearing. As is generally true in matters of statutory construction, the specific language of Rule IX, § 3 controls over the general language of ordinance ch. 25.1-1. See, e.g., U.S. v. Kuecker, 740 F.2d 496, 502 (7th Cir. 1984). Likewise, with respect to tenure, Rule IX, § 3 outweighs the other unrelated rules equating PCS and Career Service employees.

Furthermore, notwithstanding plaintiff's suppositions, dismissal without a hearing is not inconsistent with the nature of probationary employment. The right to a pretermination hearing is attendant upon the right to continued employment. In the context of civil service, however, probation signifies "trial" or "test." See, e.g., Black's Law Dictionary 1082 (rev. 5th ed. 1979). It would subvert the logic of the civil service system to grant a probationer a vested right in career employment, with the concomitant right to a pretermination hearing, before he is tested for the position. Thus, the court concludes that, under Illinois law, PCS employees do not attain a legitimate entitlement to continued employment until they have successfully completed their probationary term.*fn3 See Rose v. Civil Service Commission, 14 Ill.App.2d 337, 343, 144 N.E.2d 768 (1957) (civil service statute intended to give department head "broad authority in determining whether a probationer is the proper person to discharge the duties of his office"); cf. Romanik v. Board of Fire and Police Commissioners, 61 Ill.2d 422, 425, 338 N.E.2d 397 (1975) (probationary police officers may be summarily discharged).

Next, Fontano asserts that the City's reference in its memorandum to rating factors created an implied employment contract obligating defendants to terminate Fontano for just cause only, particularly his failure to satisfy the seven enumerated factors.*fn4 See Complaint at ¶ 10. Plaintiff alleges that the terms of his unwritten contract of employment were implicitly modified at the time of his reclassification. An implied contract deserves constitutional protection only if state law recognizes its validity.*fn5 See Malcak v. Westchester Park District, 754 F.2d 239, 242 (7th Cir. 1985).

Fontano acknowledges the general rule in Illinois that an employer's announced and written personnel policies are a gratuity rather than a part of the employment contract. See, e.g., Patkus, 769 F.2d at 1263-64; Pudil v. Smart Buy, Inc., 607 F. Supp. 440, 442-43 (N.D.Ill. 1985); Johnson v. Figgie International, Inc., 132 Ill.App.3d 922, 926-27, 87 Ill.Dec. 669, 477 N.E.2d 795 (1985); Sargent v. Illinois Institute of Technology, 78 Ill.App.3d 117, 121-22, 33 Ill.Dec. 937, 397 N.E.2d 443 (1979). Under traditional Illinois law, Fontano has utterly failed to demonstrate sufficient consideration to create mutuality of obligation with his employer. See Sargent, 78 Ill.App.3d at 122, 33 Ill.Dec. 937, 397 N.E.2d 443; Carter v. Kaskaskia Community Action Agency, 24 Ill.App.3d 1056, 1059, 322 N.E.2d 574 (1974).

Nevertheless, Fontano seeks asylum under a recent Illinois Appellate Court decision questioning and rejecting this general rule. Kaiser v. Dixon, 127 Ill.App.3d 251, 82 Ill.Dec. 275, 468 N.E.2d 822 (1984). Kaiser, however, does not salvage Fontano's complaint. Kaiser held that a detailed, 83-page policy manual that clearly imposed obligations on both the employee and employer was enforceable under the particular facts of that case. 127 Ill. App.3d at 263, 82 Ill.Dec. 275, 468 N.E.2d 822. The City's memorandum to Fontano is hardly of the same caliber. Even under the progressive reasoning of Kaiser, the three-sentence reference to rating factors in the memorandum is a "mere expression of employer policies and procedures as guidance or for informational purposes" for PCS employees. Id.; see also Alberty v. Daniel, 25 Ill.App.3d 291, 298, 323 N.E.2d 110 (1974) (principal purpose of analogous evaluation procedure "is not to protect the rights of probationary employees . . . but . . . to aid the department head in making a determination to either discharge or retain such employee").

In sum, the court concludes that the City's general policy statement with respect to rating factors does not constitute a binding contractual obligation, either express or implied.*fn6

III. Conclusion

Plaintiff's unilateral expectancy of continued probationary employment does not give rise to a constitutional entitlement. For the reasons stated, plaintiff has failed to state a federal cause of action. Accordingly, the defendants' motion to dismiss the complaint is granted.

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