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WARREN v. STONE

November 30, 1990

MARJANE WARREN, Plaintiff,
v.
THE PUBLIC DEFENDER, RANDOLPH STONE, individually and in his official capacity, THE EX-PUBLIC DEFENDER, PAUL BIEBEL, individually and in his official capacity, and HARRY COMERFORD, individually and in his official capacity as Chief Judge of the Circuit Court of Cook County, and THE COUNTY OF COOK, Defendants


Ann Claire Williams, United States District Judge.


The opinion of the court was delivered by: WILLIAMS

ANN CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE

 BACKGROUND

 Marjane Warren worked at the Cook County Public Defender's Office (PDO) as a Steno IV, from May, 1985, until October, 1987. She was hired to manage the purchase and installation of computers, and to organize computer files for the PDO. Throughout most of the period of time that she was employed by the PDO, Ms. Warren performed her duties well and enjoyed working for the PDO.

 The plaintiff's good relationship with her employer ended in October of 1987, when defendant, Paul Biebel, accused her of destroying computer documents and personnel records. Ms. Warren explained that she had merely transferred documents from her own computer's hard disk to portable electronic recording tapes for security purposes. The record suggests that this explanation did not satisfy Mr. Biebel. The plaintiff alleges that as a result of this alleged infraction she was suspended from her job for three weeks without pay, and transferred to night bond court. Following her transfer, poor health forced Ms. Warren to go on medical leave from her job in night bond court from November, 1987, to March, 1988. Ms. Warren informed Mr. Biebel and the PDO that her physician recommended that she not return to work in night bond court because of her health. Nonetheless, in a letter dated April 21, 1988, Mr. Biebel officially transferred Ms. Warren to night bond court, and informed her that if she failed to report to work she would be terminated. Because of her medical condition Ms. Warren failed to report to work, and was subsequently terminated. Ms. Warren argues that given her poor health, her job transfer amounted to a constructive discharge. She is suing the defendants for injuries associated with the loss of her job.

 In Count I of her complaint the plaintiff alleges that the defendants breached her employment contract by constructively discharging her from her job without just cause. Count II alleges that the defendants deprived Ms. Warren of property without due process of law, in violation of the fourteenth Amendment of the Constitution of the United States. Counts III and IV are for the intentional infliction of emotional distress, and defamation of character. Hence, only Count II of the complaint is a federal claim; the other claims are brought before this court under the doctrine of pendant jurisdiction. Defendants argue that the complaint should be dismissed for failure to state a claim upon which relief can be granted, failure to state a claim under 42 U.S.C. § 1983, and lack of pendant jurisdiction.

 THE MOTION TO DISMISS

 When ruling on a motions to dismiss the court will "take the allegations in the complaint to be true and view them, along with reasonable inferences to be drawn from them, in the light most favorable to the plaintiff." Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986). A complaint should only be dismissed when "it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle plaintiff to relief." I d. In their brief in support of the motion to dismiss, the defendants present a number of compelling arguments for dismissal of plaintiff's entire complaint. The court, however, finds that it need only consider the motion to dismiss in the context of the federal claim.

 Ms. Warren's federal claim is based on an alleged violation of 42 U.S.C. § 1983. The plaintiff argues that as an employee of the PDO, she was an employee of Cook County. She further argues that Cook County employees are protected by the Rules and Regulations Governing Employee Conduct, which only allow for employee discipline after a showing of just cause. The Rules, she asserts, create a protectable property interest in the jobs of Cook County employees. Ms. Warren does not assert any other facts which support her argument that she had a protected interest in her job. *fn1" Finally, the plaintiff contends that by transferring her Mr. Biebel constructively discharged her, thereby violating her constitutional rights by depriving her of her property without due process of law.

 The defendants argue that Ms. Warren has no cause of action under section 1983 because she was employed at will by the state of Illinois. Defendants argue that where there is employment at will, there is no entitlement to a hearing before an employee is disciplined or discharged.

 First, the court notes that not all public employees have a constitutionally protected interest in their jobs. See e.g., Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). In Roth, the Supreme Court explained that "an employee must have more than a unilateral expectation for [a benefit]. He must have instead have a legitimate claim of entitlement to it." Id. This holding indicates that a property interest in a job is created by existing rules or understandings that stem from an independent source, such as state law. Hence, in determining whether Ms. Warren had a property interest in her position at the PDO, this court must look to Illinois law. The court notes that under Illinois law, absent a specific contractual agreement between employer and employee, or protection created by statute (like the Rules), employees are employed at will.

 In the instant case, the court finds that as a matter of law, Ms. Warren was an employee of the state, not Cook County. As a state employee, the plaintiff was not covered by the Rules concerning employee discipline, and does not have a protectable interest in her job. Ms. Warren was hired, employed by, and terminated by the Cook County Public Defender's Office. The office of the Public Defender is statutorily under the Circuit Court of Cook County. (See Ill. Rev. Stat. Ch. 34, Par. 3-4001, et seq. (1989)). While Cook County is required to pay the salaries of employees of the Public Defender, the Illinois Supreme Court recently determined that the County serves no other role in their employment. See Orenic v. State Labor Relations Board, 127 Ill. 2d 453, 537 N.E.2d 784, 797, 130 Ill. Dec. 455 (1989) (Holding that the State, personified by the Chief Judge of each circuit is the employer of state judicial and non-judicial branch employees, including employees of the public defender).

 In Orenic, the Supreme Court held that employees of the Public Defender (in this case assistant Public Defenders) are state employees, and that the counties are not even joint employers of those employees. Id.2 The court believes that Orenic applies to all employees hired under Ill. Rev. Stat. Ch. 34, Par. 3-4008. While Orenic stemmed from a dispute involving collective bargaining, the court finds that the holding in Orenic is not limited to the issue of whether judicial and nonjudicial employees are ...


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