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FONTANO v. CITY OF CHICAGO

October 2, 1985

JOHN FONTANO, PLAINTIFF,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



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 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 ...


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