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July 20, 1993

FRANK B. STEIN, Plaintiff,


The opinion of the court was delivered by: GEORGE M. MAROVICH

On October 15, 1992, Frank B. Stein ("Stein") filed a three-count amended complaint against his employer, the Forest Preserve District of Cook County ("District"). In Count I, Stein alleges age discrimination in violation of the Age Discrimination in Employment Act of 1977 ("ADEA"), as amended, 29 U.S.C. § 621-634. In Count II, Stein alleges violations of state and county statutes pertaining to civil service employees, and in Count III, Stein alleges a violation of his constitutional right to due process under the Fourteenth Amendment to the Constitution. On November 5, 1992, defendants moved to dismiss Counts II and III of the amended complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the defendant's motion is denied.


 "A complaint should not be dismissed '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.'" Gorski v. Troy, 929 F.2d 1183, 1186 (7th Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-6, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). When dealing with a motion to dismiss, the court assumes the truth of all well-pled factual allegations and makes all possible inferences in favor of the plaintiff. See Janowsky v. United States, 913 F.2d 393, 395 (7th Cir. 1990); Rogers v. United States, 902 F.2d 1268, 1269 (7th Cir. 1990). Thus, for purposes of this motion, we accept as true the allegations contained in Stein's amended complaint.

 Employees of the District are subject to the civil service provisions governing the County of Cook pursuant to 70 ILCS 810/0.01. At the time Stein was hired by the District, he was certified by the Cook County Civil Service Commission. As a certified employee, Stein was entitled to the protections and benefits set forth in the Cook County Civil Service Act ("Act"), 55 ILCS 5/14001.

 On April 20, 1992, Stein was called into the office of the District's Acting General Superintendent, Joseph N. Nevius. Nevius and two assistants demanded to know how old Stein was and when he planned to retire. Stein informed them that he was 69 and that he had no plans to retire.

 On May 11, 1992, Nevius and his aides demanded Stein's immediate resignation. Stein refused. They then handed him a one-paragraph letter firing him effective that day, giving no reason, and demanding his immediate departure. His duties were immediately given to a much younger man. Stein never received a negative oral or written evaluation.

 After being fired, the plaintiff notified the Civil Service Commission in writing of what had happened and demanded to know why the District had failed to comply with the law. Stein received no response, written or oral. He made repeated inquiries to Nevius, and to the President of the District, Richard Phelan, to discover why he was not being treated as a certified civil service employee. None of these inquiries were responded to.

 On August 18, 1992, Stein filed suit seeking reinstatement to his position with restoration of all job-related benefits and pension credit, or, if this is impossible, front-end pay to compensate him for the amounts he will lose in the future. Subsequent to the filing of this lawsuit, Stein was informed for the first time that Nevius had purportedly removed him from his civil service position in January 1992 and that he purportedly no longer had the protection of a civil service employee.

 Although the District admits that Stein's original position was certified, the District maintains Stein held a certified civil service position only until the District's reorganization in January 1992. At this time, the District contends that Stein was given a non-certified job due to budgetary eliminations. Stein was then fired three months later in April 1992 at the age of 69. However, Stein maintains that he was never informed of any "reorganization" and that nothing regarding his salary or responsibilities ever changed. Stein was never told that he was being "laid off" or that he was losing his civil service protection. For purposes of this motion, we accept Stein's allegations concerning the status of his employment at the time he was fired as true.


 1. Count II

 In Count II, Stein alleges that the District violated 55 ILCS 5/3-14023 when it fired Stein without written charges and a proper hearing before the Cook County Civil Service Commission. The District has moved to dismiss Count II on a number of grounds. First, the District argues that Count II should be dismissed because the Act does not provide a right of private action. Since the Act does not expressly provide civil service employees a right of action, we must determine ...

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