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SHANAHAN v. CITY OF CHICAGO

November 13, 1991

MICHAEL SHANAHAN, Plaintiff,
v.
CITY OF CHICAGO, a municipal corporation, RICHARD M. DALEY, both individually and in his official capacity as Mayor of the City of Chicago, RAYMOND OROZCO, both individually and in his official capacity as Fire Commissioner of the City of Chicago, and WILLIAM ALLETTO, Defendants.



The opinion of the court was delivered by: CHARLES R. NORGLE

 Before the court is the defendants' motion to dismiss. For the following reasons, the motion is denied. *fn1"

 FACTS

 The plaintiff, Michael Shanahan ("Shanahan"), was demoted on December 15, 1990 from the position of director of the Department of Apparatus Maintenance, Repair and Supply within the Chicago Fire Department, his job since 1983, to the position of commander of a firefighting company. *fn2" The demotion, which reduced Shanahan's annual salary from approximately $ 75,000 to approximately $ 48,000, allegedly resulted from his refusal to hire and promote supporters of Chicago Mayor Richard M. Daley ("Daley"). Shanahan's refusal was based on concern for other job applicants' rights and safety concerns.

 Shortly after Daley's inauguration in 1989, Shanahan was contacted by Michael Broderick, an employee in Daley's patronage office, and told that Shanahan was required to notify the patronage office of all vacancies in Shanahan's department. The patronage office would then provide a list of Daley supporters from which Shanahan would be required to fill the vacancies. Shanahan, however, refused to notify the patronage office of vacancies and continued to fill all vacancies with the best qualified applicants based on Fire Department procedures. In October 1990, Fire Commissioner Raymond Orozco ("Orozco") and Deputy Commissioner William Alletto ("Alletto"), Shanahan's immediate superior, told Shanahan that they had been ordered by Daley to request Shanahan's resignation for "political" reasons. Orozco and Alletto, however, gave Shanahan time to ask his ward committeeman to intervene on his behalf with Daley. Nonetheless, Shanahan neither sought such political intervention nor resigned.

 Shanahan was ordered by Alletto to take accumulated leave between October 15 and December 7, 1990. During that period, Shanahan was told to report to the Fire Department Training Academy on December 7 to begin retraining. Around December 15, 1990, Shanahan was told that he would be assigned temporarily as a fire fighting company commander, and since then has worked in that capacity. Shanahan never received formal notice of his demotion, even though written notice is required by Fire Department practice.

 Shanahan's complaint, filed on May 10, 1991, contains two counts, one count under 42 U.S.C. § 1983 alleging that his demotion violated his rights under the First and Fourteenth Amendments (U.S. Const., amends. I and XIV) and another count alleging violation of the consent decree entered in Shakman v. Democratic Org. of Cook County, 481 F.Supp. 1315, 1356-59 (N.D. Ill. 1979) ("Shakman Decree").

 DISCUSSION

 On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe ex rel. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). However, the court need not strain to find inferences favorable to the plaintiff which are not apparent on the face of the complaint. Coates v. Illinois St. Bd. of Educ., 559 F.2d 445, 447 (7th Cir. 1977). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Dev. Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transp. Servs., Inc., 795 F.2d 591, 594" (7th Cir. 1986).

 The defendants contend that Shanahan's former position, Director of Apparatus Maintenance, Repair and Supply, is exempt from the protection of the Shakman Decree under its terms, that plaintiff's Shakman claim is time-barred, that defendants Daley and Orozco are entitled to qualified immunity, and that plaintiff has failed to plead a municipal policy, custom or practice sufficient to impose liability upon the city under § 1983. The court will deal with each argument in turn.

 The Shakman Decree includes provisions enjoining the City of Chicago and its mayor from:

 (1) conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor.

 . . .

 (3) knowingly, inducing, aiding, abetting, participating in, cooperating with or encouraging the commission of any act which is proscribed by this paragraph ...


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