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March 21, 1989

CITY OF CHICAGO, an Illinois municipal corporation, Defendant

The opinion of the court was delivered by: DUFF


 This action came before this court for trial without a jury on June 29-30 and July 5-6, 1988 on the issues of liability. At the close of this evidence, the court ruled in favor of plaintiff Eugene Wzorek and ordered further trial on damages. The trial resumed on November 1-2, 1988. The court has heard the evidence and has considered the testimony, exhibits, memoranda of law and arguments of Wzorek pro se and counsel. Now fully advised in the premises, the full trial on Wzorek's claim having been concluded, the court finds the following facts:

 1. Eugene Wzorek started working for the City of Chicago in 1973 as a Motor Truck Driver for the Streets and Sanitation Department. In 1977, he was appointed to the position of Motor Truck Driver for the Department of Sewers of the City of Chicago. Wzorek continued to work in that position until June 29, 1984, when he was discharged.

 2. Wzorek had a non-career service status known as Departmental Employment Service ("DES") from March 22, 1977 until December 31, 1983. DES employees consist largely of tradesmen.

 3. In December 1983, the Chicago City Council created a probationary period of six months for all DES employees, after which the City would either terminate the employee or advance him or her to full career service status.

 4. Dr. Charles A. Pounian was the Commissioner of the Department of Personnel of the City of Chicago at the time the City Council created the DES probationary period. The City vested the Commissioner with the authority to issue personnel rules.

 5. On January 10, 1984, Pounian issued a memorandum regarding probationary employees. Under the rules stated in this memorandum, a department head could discharge a probationary employee during the probationary period simply by firing the employee, completing discharge forms, and forwarding the forms to the Commissioner. The Commissioner would then notify the former employee in writing of the reasons for discharge. The January 1984 memorandum required probationary employees to be given numerical ratings for their performance.

 6. On May 3, 1984, the Commissioner of Personnel issued a new memorandum abolishing the probationary ratings and informing department heads that judgment concerning the probationary period would be made thereafter on the basis of new criteria set forth in the memorandum.

 7. On October 1, 1983, Eugene M. Barnes became acting Commissioner of the Department of Sewers of the City of Chicago. Barnes's immediate predecessor was Edward Quigley.

 8. Before the start of the DES probationary policy, Barnes had a meeting with his department supervisory personnel. Barnes told these supervisors to write probationary employees up or else he would write them up and would get rid of them. John Lucille was one supervisor who rated probationary employees, Wzorek among them. Lucille testified that his rating cards or slips had numbers on top indicating in which ward the employee lived. Lucille testified further that during the probationary period, if someone got transferred into the district, the first thing that was done was to give the person a ward card and let him fill it out. Lucille sent ward cards downtown.

 9. Barnes testified that poor work performance and excessive absenteeism during the probationary period were his primary criteria for deciding whether he would deny career service status to a probationary employee. Pounian testified that if a person had completed the probationary period successfully, it would raise question in his mind if a supervisor subsequently recommended dismissal based on behavior or incidents dating from before the probationary period. While Pounian testified further that a department head could consider incidents that took place prior to the probationary period in reaching a dismissal decision, department heads seldom considered prior actions.

 10. Wzorek's first and only interim probationary review was good. He received a numerical rating of 85 out of 100. According to one of Wzorek's supervisors, William Sommerford, Wzorek was a pretty good employee. Commissioner Pounian testified that only under extremely unusual circumstances would a person get an 85 on his performance rating, but then do one of the 27 things listed in the May 3, 1984 directive as grounds for discharge. Pounian stated that someone could have an 85 rating and then commit some act subsequent to that rating to warrant discharge. If someone had committed such an act, city personnel should have noted it on the employee's discharge sheet.

 11. On June 29, 1984, Commissioner Barnes wrote to Commissioner Pounian that he intended to discharge Wzorek for poor work performance. On July 6, 1984, Commissioner Pounian wrote to Wzorek that the reason for his discharge was poor performance. Neither Barnes nor Pounian identified excessive absenteeism as a basis for discharging Wzorek.

 12. As Commissioner, Barnes had the authority to discharge DES probationary employees. Barnes was not directly involved, however, in the evaluation of employees. He relied instead on the evaluations and reasons of supervisory personnel subordinate to him. Commissioner Barnes authorized Wzorek's discharge upon the recommendation of William Sommerford, a Barnes appointee. Sommerford's name appears on Wzorek's firing slip along with Eugene Barnes's name. ...

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