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PANOZZO v. RHOADS

May 10, 1989

JEFFREY PANOZZO, Plaintiff,
v.
S.A. RHOADS, individually and as Chief of Police of the Village of East Hazel Crest, ANN P. PRATER, individually and as President of East Hazel Crest, and ROBERT GREENEY, HAROLD WITT, GRACE CRIDER, and MANUEL FERNANDEZ, each individually and as Trustee of the Village of East Hazel Crest, and the VILLAGE OF EAST HAZEL CREST, ILLINOIS, Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 This lawsuit stems from the termination of a police officer by the Village of East Hazel Crest, Illinois ("the Village"). Plaintiff, the terminated officer, has filed suit against the Village, its chief of police, its president, and four of its trustees. Seeking relief under 42 U.S.C. ┬ž 1983, plaintiff contends that defendants violated his right to procedural due process. He also asserts claims of breach of contract and retaliatory discharge. When defendants moved for summary judgment on all three of plaintiff's claims, this court referred defendants' motion to Magistrate W. Thomas Rosemond, Jr. In a report and recommendation dated February 28, 1989, Magistrate Rosemond concluded that the court should grant summary judgment for defendants on plaintiff's retaliatory discharge claim. The magistrate also recommended that the court deny defendants' motion with respect to plaintiff's due process and contract claims. After reviewing the parties' objections to the magistrate's findings, this court respectfully declines to adopt the magistrate's report and recommendation. For the reasons stated herein, the court grants defendants' motion for summary judgment on plaintiff's due process claim. Having disposed of plaintiff's only federal claim, the court dismisses plaintiff's remaining claims for lack of jurisdiction.

 FACTS

 Plaintiff Jeffrey Panozzo worked as a police officer for the Village of East Hazel Crest from 1978 to 1985. As a permanent employee of the Village, Panozzo enjoyed substantial job security. Under the terms of its own rules and regulations, the Village could only terminate Panozzo for cause.

 During his tenure with the Village police force, Panozzo's official duties included monthly court appearances for the purpose of testifying on pending cases. On the morning of July 2, 1985, Panozzo missed his regularly scheduled court appearance. Later that day, during a telephone conversation with Chief of Police S. A. Rhoads, Panozzo explained that he had failed to appear in court because he was not feeling well. At that point, Rhoads ordered Panozzo to report for his regular shift that afternoon in order to see a doctor. Several hours later, when Panozzo failed to report for duty, Rhoads decided to suspend Panozzo without pay. At 8:30 p.m. on the evening of July 2, 1985, Panozzo received notice of his suspension. The notice stated that Panozzo had apparently violated police regulations on that day by failing to report for duty, refusing to obey a lawful order, and failing to produce a physician's statement justifying the use of sick leave. The notice also indicated that Panozzo would receive an opportunity to explain his actions at a hearing scheduled for July 3, 1985 at 1:00 p.m.

 The following afternoon, Panozzo reported to the East Hazel Crest Police Department for his scheduled hearing. Claiming that his attorney could not attend the hearing that day, Panozzo asked Rhoads to reschedule the hearing. Rhoads responded by proposing a one-hour continuance so that Panozzo could find another lawyer. Panozzo rejected this proposal, saying that he needed more time. Rhoads then gave Panozzo several opportunities to explain why he had apparently violated police regulations on the previous day. When Panozzo refused to offer any explanation for his conduct, Rhoads immediately terminated him.

 DISCUSSION

 I. Procedural Due Process

 According to Count I of Panozzo's complaint, neither before nor after his termination did Panozzo receive the procedural due process guaranteed by the Fifth and Fourteenth Amendments. Defendants contend, however, that their treatment of Panozzo fully satisfied constitutional requirements of due process. In order to evaluate defendants' motion for summary judgment on Count I, this court must examine the two incidents on which Panozzo bases his due process claim: the pretermination hearing with Rhoads and Panozzo's futile efforts to obtain a post-termination hearing before the Board.

 A. Pretermination Hearing

 As a permanent employee of the Village police force, Panozzo possessed a property right in continued employment. Therefore, defendants could not deprive Panozzo of his job without due process. See Board of Regents v. Roth, 408 U.S. 564, 576-77, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). More specifically, defendants could not terminate Panozzo until he received a pretermination hearing. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). Although Village procedures provided for comprehensive post-termination review, due process entitled Panozzo to a pretermination hearing that included "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Id. at 546.

 Magistrate Rosemond rejected defendants' contention that Panozzo's pretermination hearing fulfilled the requirements of Loudermill. In particular, the magistrate found fault with the notice given to Panozzo. Because Panozzo received the notice on the eve of his hearing, the magistrate concluded that defendants had not given Panozzo sufficient time to prepare for the hearing or retain an attorney. The magistrate also criticized the notice for its failure to describe the facts underlying the charges against Panozzo. In light of these deficiencies, the magistrate found ...


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