The opinion of the court was delivered by: Decker, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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.
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 ...