Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 C 0021 -- Charles P. Kocoras, Judge.
Posner, Flaum, Circuit Judges, and Eschbach, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
Martell E. Davis was dismissed from his position as a foreman in the City of Chicago's Bureau of Rodent Control. He appeals the District Court's grant of summary judgment to the defendants, the City and two City officials. Davis brought this action in District Court alleging that his discharge deprived him of his constitutionally protected property and liberty interests under the Fourteenth Amendment and under 42 U.S.C. § 1983. The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. Davis sued the City and two of the City officials responsible for his dismissal, in both their individual and official capacities.
Davis served as a foreman with the City of Chicago from May 1981 until he was terminated in June of 1984. He had been classified as a Departmental Employment Service ("DES") employee. This classification rendered him an at-will employee of the City until January 1, 1984, when the City's Appropriation Ordinance unilaterally reclassified all DES employees to Probationary Career Service status. According to this ordinance, after serving six months on probationary status these reclassified employees would attain permanent, career service status. Once an employee achieved such status, he could only be dismissed for cause. Mun. Code §§ 25.1-5(12), 25.1-6. Davis was notified of his status change through a memorandum issued by the City on January 10, 1984, to all such employees.
On June 29, 1984, the day before his six-month probationary term was to expire, Davis was discharged by the Commissioner of the Bureau of Rodent Control. In his affidavit, Davis averred that he was informed that his November 11, 1980 drug attest formed the basis for his dismissal. In a letter dated July 3, 1984, the City's Commissioner of Personnel formally notified him that he was fired because of his "involvement in the illegal sale, delivery, receipt or use of controlled substance and conduct prohibited by the Municipal Code of the City of Chicago, the Illinois revised statute or federal statutes." The criminal charges filed against Davis for his 1980 drug attest had been dropped earlier, and Davis' record was expunged in 1981. Davis was discharged without a hearing or an opportunity to respond to the charges either before or after his dismissal.
The District Court granted the respondents' motion to dismiss Counts II and III of Davis' amended complaint. Count II alleged violations of his liberty interests under the Fourteenth Amendment, and Count III alleged intentional and malicious disregard of his constitutional rights under 42 U.S.C. § 1983. The appellant does not appeal the dismissal of Counts II and III. The District Court later dismissed Count I of his complaint, which claimed that Davis was deprived of his protected property interest in continued employment. Count I was dismissed because the parties agreed to submit this claim to arbitration. The arbitrator determined that Davis was not available for reinstatement because he was incarcerated for unrelated drug charges at the time of the arbitration decision. The arbitrator did not decide the merits of Davis' grievance. The District Court then granted Davis' pro se motion to reinstate his Count I claim, and subsequently granted summary judgment for the defendants on this count. Davis appeals. We have jurisdiction of this appeal under 28 U.S.C. § 1291.
The only issue presented for review is whether there is a genuine issue of material fact regarding the existence of the alleged property interests. Davis contends that the City has a long-standing custom and policy of discharging probationary foremen only for cause arising during the probationary period. We find that the petitioner has not sufficiently shown that a genuine issue of material fact exists to defeat summary judgment, and we affirm the District Court's decision.
Rule 56(c) of the Federal Rules of Civil Procedure mandates that in order for a party to succeed on a motion for summary judgment, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." However, the non-movant, or adverse party, may attempt to defeat the motion. In order to do so, Rule 56(e) specifies that "an adverse party may not rest upon the mere allegations or denial of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e) (emphasis supplied). See also Posey v. Skyline Corp., 702 F.2d 102 (7th Cir.), cert. denied, 464 U.S. 960, 104 S. Ct. 392, 78 L. Ed. 2d 336 (1983). The affidavits presented must be based on the personal knowledge of the affiants and must set forth the facts in a manner that would be admissible in evidence. Fed. R. Civ. P. 56(e).
The defendants have satisfied their burden under Rule 56 of showing that no genuine issue of material fact exists. While Davis alleges that such an issue exists regarding his property interests in continued employment with the City, the defendants challenge the factual basis for that assertion. No explicit statutory authority exists which accords due process rights to probationary employees. Nonetheless, Davis claims he has a property right because of an alleged long-standing custom and policy that probationary foremen would not be fired except for cause that arose during the term of their probation. Davis supports his claim of this alleged custom by relying exclusively on one conclusory statement in his affidavit. Not only do the defendants challenge the sufficiency of this conclusory statement, but in support of their motion for summary judgment in the District Court, they under oath denied the very existence of such a policy.
In order for Davis to assert a property interest, he must show that he "has a 'legitimate claim of entitlement' not to lose a valuable governmental benefit except for cause." Begg v. Moffitt, 555 F. Supp. 1344, 1348 (N.D. Ill. 1983). Protected property interests are "created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972); see also Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684 (1976). While property interests may be a matter of statutory entitlement, see Goldberg v. Kelly, 397 U.S. 254, 262, 90 S. Ct. 1011, 1017, 25 L. Ed. 2d 287 (1970), they may also arise from mutually explicit understandings, see Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699, 33 L. Ed. 2d 570 (1972). An established custom or policy may be used as evidence that a mutually explicit understanding exists. For example, in Perry v. Sindermann, the Supreme Court held that an untenured professor at a state junior college may have a protected property interest in continued employment if the college utilizes a de facto tenure system. 408 U.S. at 602, 92 S. Ct. at 2700. However, a merely subjective and unilateral expectancy is not protected by due process. Board of Regents v. Roth, 408 U.S. at 577, 92 S. Ct. at 2709. It must be established that the custom was indeed practiced. See Auriemma v. Chicago, 601 F. Supp. 1080, 1083 (N.D. Ill. 1984).
To substantiate his property claim of a long-standing custom or policy, Davis has only submitted one conclusory statement in his affidavit. Item 12 states: "It is a longstanding custom and policy of the City of Chicago's Department of Streets and Sanitation that a foreman on probationary status will be fired only for cause arising during the probationary period itself." This one-sentence statement fails to give the source or derivation of this alleged custom, any indication of when it came into being or how long it existed, any proof that other probationary employees were aware of it or had relied on it, any explanation for why such a long-standing custom would not have been alluded to explicitly in the 1984 statute, or examples of any other situation where it had been utilized. In short, while Davis need not allege any particular one of these facts, he does have the burden of establishing some fact in his affidavit which would create a genuine issue as to the existence of a property interest. As this Court has stated previously, "Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted." Hadley v. County of Du Page, 715 F.2d 1238, 1243 (7th Cir. 1983). See also Valentine v. Joliet Township High School Dist., 802 F.2d 981, 987 (7th Cir. 1986).
Davis' assertion not only fails to satisfy the requirements of Federal Rule of Civil Procedure 56(e), but it also fails to satisfy the requirements for evidence based on personal knowledge set forth by Federal Rule of Evidence 602. Rule 602 mandates that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness had personal knowledge of the matter." Davis' conclusory assertion, unsubstantiated with any specific facts, fails to indicate any factual basis which ...