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08/30/89 John E. Norton, v. Paul C. Nicholson Et Al.

August 30, 1989

JOHN E. NORTON, PLAINTIFF-APPELLANT

v.

PAUL C. NICHOLSON ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

543 N.E.2d 1053, 187 Ill. App. 3d 1046, 135 Ill. Dec. 485 1989.IL.1343

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiff, John E. Norton, initiated this judicial proceeding by filing a complaint for administrative review and declaratory judgment. A third amended complaint was subsequently filed by plaintiff, pro se, naming as defendants Paul C. Nicholson, Frank G. Benak, Lois J. Fleming and the Village of Western Springs (the Village). In his third amended complaint, consisting of eight counts and three volumes of attached exhibits, plaintiff sought the issuance of a writ of certiorari for judicial review of a decision of an administrative agency, mandamus, declaratory relief, injunctive relief and damages pursuant to 42 U.S.C. § 1983 (1976). The trial court dismissed the third amended complaint on the basis that it was insufficient to state a cause of action, and denied plaintiff leave to file a fourth amended complaint. We affirm.

Defendant Benak is the fire chief for the Village Department of Fire and Emergency Medical Services (the Department). Plaintiff was employed for 10 years as a part-time employee for the Department. He was classified as a fire fighter/EMT and he received a salary on an hourly basis for fire fighting, rescue and emergency medical duties, conducting training and educational sessions, stand-by coverage, and other special duties.

On July 2, 1984, plaintiff prepared a memorandum which he addressed to the Village "Chain of Command." He distributed the memorandum to four lieutenants who were his immediate superiors in the Department. The memorandum was critical of a change in fire apparatus response and procedure, and the memorandum made it plain that the plaintiff had unsuccessfully attempted to bring his criticism to the attention of the fire chief, Benak. The memorandum states:

"I tried to clarify some of this with the Fire Chief, but he 'made a face' and walked away from me without a word. I can only guess that he couldn't answer unless it went through the 'chain of command.'"

Although plaintiff's memorandum was not addressed to Benak or given to Benak by plaintiff, it was received by Benak. On July 3, 1984, Benak sent the following letter to plaintiff:

"I have received a copy of your July 2, 1984 memo.

As I look over the past several years I can see the progress that has been made in the area of fire protection and emergency medical services. Much of this progress is due in no small part to your work.

However, in every organization there comes a time when people must pull together without constant sniping, backbiting and sarcasm. I am therefore requesting that you tender your resignation to this department, effective immediately."

On July 4, 1984, plaintiff sent Benak a letter advising him that he would not comply with his request to resign from the Department. Plaintiff's letter states, inter alia :

"I also find it difficult to comprehend how I am to be responsible for the 'constant sniping, backbiting, and sarcasm' going on in the department when, in fact, my presence at the fire station has minimized for the express purpose of avoiding the significant constant sniping, backbiting, and sarcasm that has been going on, often in your presence and sometimes at your instigation. I'm not accusing you of any wrongdoing, just that you have fostered the very activity that you now criticize. Every instance in which you have requested some action or inaction on my part I have complied with, with the exception of activities that were illegal, unethical, or unsafe. As you know, I have always felt compelled to comment, within the rational modes of communication, illegal activities, unsafe practices, tactical flaws, unsound training pedagogy, etc. You also should know that you, personally, have encouraged such activity on my part when it suited your needs (and I have documentation to that effect). What is most surprising is that during the lowest level of such activity on my part in the last decade, you should now find it objectionable.

Sincerely,

John E. Norton

'Assassination is the extreme form of censorship.' -- George Bernard Shaw

'It's impossible for ideas to compete in the marketplace if no forum for their presentation is provided or available.' -- Thomas Mann.

'Extremists think 'communication' means agreeing with them.' -- Leo Rosten

'Knowledge without conscience is the ruination of the soul.' -- Francois Rabelais" (Emphasis in original.)

On July 5, 1984, Benak sent plaintiff a letter advising him that he was being terminated as a fire fighter as of July 5, 1984. The letter states, inter alia :

"The grounds for dismissal are as follows:

(a) Village Personnel Manual

Chapter IX, Section 9.1

1.11 That the employee is antagonistic in attitude toward his superior officers or other employees, criticizing orders or policies issued and policies adopted by superiors or so acts as to interfere with proper cooperation of employees of the Village to the detriment of efficient public service.

(b) Fire Department Rules and Regulations 1-5-3

2. If the employee has been abusive in attitude, conduct and language in public, or toward the public, Village officials or employees, or has been abusive in conduct resulting in physical harm or injury to other employees or the public, either on or off duty.

Attached is Chapter XI of the Personnel Code stating appeal procedures."

Plaintiff requested an appeal of Benak's action in terminating his employment with the Department. Accordingly, an administrative hearing was had on July 23, 1984, before the village manager, Nicholson, and the director of personnel, Fleming. Plaintiff and his representative submitted both oral presentations and written documents. Also, plaintiff was afforded added time to submit additional documents, which were subsequently submitted.

One of the documents, dated July 26, 1984, submitted by plaintiff relates to his past verbal Discussions with Benak on procedural and operation matters. The document states:

"[The] following is a conservative estimate of some of the verbal criticisms I've communicated to the Fire Chief within the past two years:

- At least on two occasions (prior to written memo) criticizing the commonly practiced ...


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