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SCHROEDER v. CITY OF CHICAGO

December 21, 1989

BERNARD SCHROEDER, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Bernard Schroeder filed this action claiming that his removal from the active payroll of the Chicago Fire Department violated his Fourteenth Amendment due process rights. His suit names Chief John Tully, the fire department's Director of Personnel, and Audley Connor, M.D., the fire department's Director of Medical Services, as defendants. Tully and Connor have now moved for summary judgment. For the reasons stated herein, defendants' motion is granted.

 FACTS

 On October 23, 1985, while fighting a fire during the course of his employment with the Chicago Fire Department, Schroeder suffered injuries to his back, head, and neck. These injuries caused Schroeder to be placed on an extended medical lay-up. In January, June, and October of 1986, Schroeder's doctor informed the defendants that Schroeder remained physically unable to return to work.

 Despite his inability to return to active duty, Schroeder received full pay from the date he suffered his injuries until November 16, 1986. The parties agree that Schroeder was entitled to his full salary during that period pursuant to Section 7.3 of the collective bargaining agreement between the City of Chicago and the Chicago Firefighters Union Local 2. That provision states:

 
Section 7.3 Sick Leave and Injury Leave
 
Any member of the Fire Department receiving an injury or becoming disabled so as to prevent him from attending to his duties as such member of the Fire Department shall, for the duration of twelve (12) months, providing his disability shall last that time, or for such portion of twelve months as such disability or sickness shall continue, receive his usual salary . . .

 By November 16, 1986, Schroeder had used up his twelve months of injury leave and all of the other benefit time which he had accrued during the course of his employment with the fire department. Therefore, the fire department removed Schroeder from the active payroll on that date. Schroeder was notified of his removal from the payroll by a letter from Tully dated November 14, 1986. In that letter, which Schroeder did not receive until November 26 because it had been improperly addressed, Tully stated: "On November 16, 1986 your sick benefit of 365 days will be satisfied. On that day you will be removed from the active payroll of the Chicago Fire Department. To make application for pension benefits due, you must contact . . ."

 Upon receiving Tully's letter, Schroeder did not file a grievance with the fire department to contest his removal from the payroll. *fn1" Instead, Schroeder followed Tully's suggestion and applied for pension benefits pursuant to para. 6-151 of the Illinois Pension Code. That provision reads:

 
An active fireman who is or becomes disabled on or after the effective date as the result of a specific injury, or of cumulative injuries, or of specific sickness incurred in or resulting from an act or acts of duty, shall have the right to receive duty disability benefit during any period of such disability for which he does not receive or have the right to receive salary, equal to 75% of his salary at the time the disability is allowed.

 Ill.Rev.Stat. ch. 108 1/2, para. 6-151. Schroeder's application for duty disability benefits was granted. Currently, Schroeder continues to receive those benefits. At no time since suffering his injuries has Schroeder informed the fire department that he is physically fit for active duty.

 DISCUSSION

 To recover on his claim that defendants violated the Fourteenth Amendment, Schroeder must first establish that he possesses some property right. Smith v. Board of Education, 853 F.2d 517, 520 (7th Cir. 1988). He must then show that defendants deprived him of that right without affording him due process of law. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-41, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). "Property" in the context of the Fourteenth Amendment means an "entitlement." Lim v. Central DuPage Hospital, 871 F.2d 644, 646 (7th Cir. 1989); Smith, 853 F.2d at 520. In determining whether a property interest exists, the court must examine the particular legal principles and relationships governing the facts of the case. "Property interests are not created by the Constitution, they are created and their dimensions are defined by ...


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