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Lee v. County of Cook

decided: November 14, 1988.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 C 6648 -- Ann C. Williams, Judge.

Posner, Ripple, and Kanne, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge.

The appellant, Delbra Lee, brought this action in the district court seeking redress for an allegedly wrongful discharge from her employment in the Cook County State's Attorney's office. Alter entertaining three attempts by the appellant to state a cause of action under 42 U.S.C. § 1983, the district court dismissed the action. We Firm the judgment of the district court.



As the case comes to us, the appellant argues that the district court erred in refusing to accept her third amended complaint.*fn1 Consequently, we shall confine ourselves to the facts set forth in that document.

In her third amended complaint, Ms. Lee alleges that she is a black woman who was employed as an administrative assistant in the State's Attorney's Office for Cook County, Illinois. At first, she worked on a part-time basis and attended school during the day. During the summer, she worked on a full-time basis. According to the complaint, Kathy Osterman, the appellant's supervisor, asked her to alter her academic schedule to night classes "so that she could work full-time and promised her a permanent position with all the benefits of an employee of the State's Attorney's Office." Third Amend. Complaint at para. 12. Ms. Lee agreed.

The complaint further alleges that the appellant had to attend work-related functions at night and her progress at school was jeopardized. Ms. Lee therefore told Ms. Osterman about her problems and her need for job security. According to the complaint, Ms. Osterman "continually reassured" her that "her job was secure and would continue as long as she kept up the good work." Id. at para. 17. Consequently, Ms. Lee believed, according to the complaint, "that as long as she did a good job and did not do any acts to cause her termination, she would continue as an employee." Id. at para. 19. The complaint further alleges that defendant Al Gryzb, a manager in the State's Attorney's office, promulgated an employment policy under which "an employee like Plaintiff could only be terminated for sufficient cause, after progressive discipline because of poor performance or immediately because of the severity of the performance or situation." Id. at para. 24. On November 3, 1983, after an incident at work, Mr. Gryzb met with Ms. Lee and discharged her on the ground that "she had jeopardized the safety of other employees." Id. at para. 34.



The essence of Ms. Lee's complaint is that she was deprived of a cognizable property interest in her continued employment without due process of law. Read charitably, her complaint appears to allege that her employment constituted a cognizable property interest for three reasons: a) the policy promulgated by Mr. Gryzb created such a property interest, see Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); b) the policy of Mr. Gryzb amounted to a "mutually explicit understanding" that created a cognizable property interest, see Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); and c) the assurances of her supervisor, Ms. Osterman, also constituted such a "mutually explicit understanding." None of these theories can support the appellant's cause of action. Accordingly, the district court correctly dismissed the action.

A. Property Interest Created by Gryzb Policy

The alleged policy of Mr. Gryzb cannot be said to create a "legitimate claim of entitlement" to continued employment that will support an action based upon 42 U.S.C. § 1983. Property rights are "created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Roth, 408 U.S. at 577. Even if we assume arguendo that Mr. Gryzb had the authority to promulgate employee policies, see Shlay v. Montgomery, 802 F.2d 918, 922 (7th Cir. 1986), a statement that discharge will depend on the frequency and gravity of an employee's infractions hardly amounts to the creation of a legal ...

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