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Misek v. City of Chicago

February 11, 1986

GLEN MISEK AND RICHARD J. KRAKOWSKI, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, HAROLD WASHINGTON, CHARLES A. POUNIAN AND SUSAN L. WEED, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 4227 -- Marvin E. Aspen, Judge.

Author: Cummings

Before CUMMINGS, Chief Judge, COFFEY, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

CUMMINGS, Chief Judge.

Plaintiffs appeal from the summary judgment granted to defendants on their 42 U.S.C. § 1983 claims. The plaintiffs challenge the district court's determination that their discharge from the Chicago Health Systems Agency without a hearing could not violate due process. We reverse.

I. STATEMENT OF THE CASE

In May 1984, plaintiffs filed a verified complaint seeking reinstatement to their former municipal positions and $100,000 in damages for emotional distress and humiliation plus damages for lost wages and benefits. Counts I and II allege that the plaintiffs were discharged without cause under a pretextual reorganization of their employing agencies. The terminations were said to violate the due process clause of the Fifth and Fourteenth Amendments. Relief was sought pursuant to 42 U.S.C. § 1983.

Counts III and IV asserted that the "intentional and willful termination" of plaintiffs' employment without just cause and done maliciously violated their rights and privileges under the Constitution and constituted a constitutional tort actionable under 42 U.S.C. § 1983.

The remaining two counts were pendent and claimed that the plaintiffs had statutory tenure under the Illinois Civil Service Act and charged that both the Illinois Civil Service Act and Chicago Personnel Code forbid the firing of career service employees such as plaintiffs without cause and without the opportunity for a hearing before an impartial arbitrator.

Five days later the four defendants*fn1 filed a motion to dismiss the complaint on the ground that Counts I through IV failed to state a constitutional cause of action and that pendent Counts V and VI should also be dismissed "because they are unsupported for jurisdictional purposes by a federal claim" and fail to state a cause of action under state law. In August 1984, Judge Aspen filed an unpublished memorandum opinion and order granting defendants' motion to dismiss the complaint in its entirety. He reasoned that Counts III and IV were redundant because they attempted to state the same claim twice. The district judge ruled that the due process claims in Counts I-IV were fatally deficient because they did not specifically identify the property interest plaintiffs had in their jobs. The court also agreed with defendants that no Illinois statute nor Chicago ordinance gave plaintiffs the right to a hearing because they were not terminated for lack of fitness but because they were not terminated for lack of fitness but because of a reorganization of their agencies, citing, inter alia, Fitzsimmons v. O'Neill, 214 Ill. 494, 503, 73 N.E. 797 (1905). Because the district court concluded that plaintiffs had not adequately alleged a basis of federal court jurisdiction, the pendent state claims contained in Counts V and VI were dismissed pursuant to United Mineworkers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 .

Twenty days after their complaint was dismissed plaintiffs filed a motion to alter or amend the dismissal order in to permit them to amend their complaint. On January 3, 1985, the district judge denied plaintiffs' motion to alter or amend his prior order and refused to permit them to file the tendered amended complaint.*fn2 The district judge stated that he was refusing to permit the filing of the amended complaint because

an employee terminated under an agency reorganization who claims that the reorganization was pretextual does not have a right under Illinois law to a civil service pre-termination hearing.

Record item 26, page 2. We reverse.

II. PLAINTIFF WERE ENTITLED TO A HEARING BEFORE ...


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