Although it is clear from the court's holding in Thomas that a plaintiff must plead more than bald assertions of discriminatory intent on the part of a defendant in order to survive a motion to dismiss based on immunity, a plaintiff's burden at the pleading stage is minimal. As long as Stein asserts some facts which either directly or circumstantially support a finding that Nevius intentionally sought to deprive him of his protectable property interest, Stein can avoid dismissal on immunity grounds before discovery.
According to his complaint, Nevius purportedly removed Stein from his certified position in January 1992 and placed him in a new position that was not subject to civil service protection. Stein was given no notice that he had been removed from his civil service position. Stein's job duties did not change, his salary remained the same and he was given no new job description. Neither Nevius nor any one under Nevius' control told Stein that he had ceased to enjoy the protection of the Act.
When Stein was fired in May 1992, Nevius refused to give him written charges and right of hearing to which Stein believed he was entitled to under the Act. Although he repeatedly asked both Nevius and Richard Phelan, the President of the District, about their failure to provide him with his rights under the Act, he received no response. It was not until after Stein filed this action that Nevius informed Stein that he had been purportedly removed from his civil service position in January 1992. These allegations are sufficient to survive the District's motion to dismiss Count III against Nevius in his individual capacity.
Finally, the District argues that Count III should be dismissed against Nevius in his official capacity because Stein has failed to allege that Nevius acted pursuant to an official custom, policy or practice as required by Monell.6 Stein, however, argues that he does not have to allege a municipal policy or custom since the individual acts of highranking officials, such as Nevius, render that entity liable under § 1983. See Malak v. Associated Physicians, Inc., 784 F.2d 277 (7th Cir. 1986). In order to hold the municipality liable for the individual acts of a policymaker, however, those acts must establish the new official policy of the state for all similar matters. Auriemma v. Rice, 957 F.2d 397, 399-400 (7th Cir. 1992).
A single act of employee misconduct, regardless of how highly placed, which clearly contravenes established state policy and procedures as contained within formal rules, regulations, and statutes, does not evidence the state's "new" policy. Instead, such an act is merely a random unauthorized deviation from the state's policy. Easter House v. Felder, 910 F.2d 1387, 1402 (7th Cir. 1990).
In this case, Stein alleges that Nevius secretly deprived him of due process protection and then fired Stein without charges and a hearing. In other words, Stein alleges that Nevius' actions violated clearly established rules and procedures for terminating civil service employees set forth in the Act. It is clear to this court that Nevius violated established policy. He did not implement a new policy for the District when he failed to provide Stein with his procedural rights. Thus, Nevius' conduct is not a policy which is attributable to the Forest Preserve, but a random, unauthorized deviation. See Easter House, 910 F.2d at 1402-03; Auriemma, 957 F.2d at 399-400. Consequently, we will not hold the District liable under § 1983 for Nevius' acts.
For the reasons stated above, the District's motion to dismiss Counts II is denied. The District's motion to dismiss Count III against Nevius in his individual capacity is also denied. However, District's motion to dismiss Count III against Nevius in his official capacity is granted.
GEORGE M. MAROVICH
UNITED STATES DISTRICT JUDGE
DATED: July 20, 1993