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October 27, 1994


Appeal from the Circuit Court of Cook County. Honorable Edward C. Hofert, Judge Presiding.

Released for Publication December 16, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Cahill, Hoffman, Johnson

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

Michael O'Keefe appeals the dismissal of his suit to recover salary, disability and medical benefits for injuries suffered as a Chicago firefighter. We affirm in part, reverse in part, and remand.

O'Keefe was a fire department paramedic. He was injured on duty in a traffic accident while driving an ambulance on May 29, 1988. He refused to take drug and alcohol tests required of firefighters after a traffic accident which involves injuries.

O'Keefe was placed on disability leave with full salary, as required under section 7.3 of the labor contract between the City of Chicago and the Chicago Fire Fighters Union. The contract requires the City to pay all hospital and medical costs of employees injured on duty.

On August 24, 1988, the fire department fired O'Keefe for his refusal to submit to a drug and alcohol test. The City stopped paying his salary and medical bills after that date.

O'Keefe filed a grievance alleging that he was fired without cause. He sought reinstatement and also alleged that under the labor contract he was owed a full year of salary and all medical costs. The grievance went to arbitration. The arbitrator issued awards on January 9, 1991, and July 26, 1991. He upheld O'Keefe's discharge, but held that O'Keefe was owed salary and benefits for a full year -- from May 29, 1988, to May 29, 1989. After the arbitrator's decision and until now, the City has paid O'Keefe only part of one year's salary and no medical costs.

On September 4, 1991, O'Keefe applied to the Retirement Board of Firemen's Annuity & Benefit Fund (Retirement Board) for duty disability benefits under section 6-151 of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 6-151). Under that section, a firefighter injured on duty is entitled to 75% of his salary for as long as he is disabled until compulsory retirement age. Ill. Rev. Stat. 1987, ch. 108 1/2, par. 6-151.

The Retirement Board rejected O'Keefe's application as untimely because he submitted it after he was fired. O'Keefe filed a motion for reconsideration which was denied. He then filed a complaint for administrative review in the circuit court. He named the Retirement Board, the City of Chicago, and Donald Stensland, a deputy fire commissioner of the fire department and a representative of the City in the discharge and arbitration proceedings, as defendants. He alleged that the City's termination of benefits and failure to pay the arbitration awards violated section 1983 of the Civil Rights Act (42 U.S.C.A. § 1983 (West 1988)). He also alleged that the Retirement Board's refusal to pay duty disability benefits violated section 1983 and the Illinois pension Code.

Defendants moved to dismiss the complaint under section 2-615 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2-615.) The trial court granted the motion.

We first address the dismissal of O'Keefe's section 1983 claim against the City. The complaint alleged that O'Keefe was deprived of procedural due process when the City paid only part of the arbitration awards. The trial court ruled that O'Keefe's complaint stated a cause of action against the City for the balance due on the arbitration awards, but did not state a cause of action under section 1983 because his remedies under state law were adequate. The court then granted O'Keefe leave to file an amended complaint to enforce the arbitration awards. As of the filing of this appeal, O'Keefe has not amended his complaint or filed a separate action to compel the City to pay the arbitration awards.

O'Keefe argues that the trial court's dismissal of his 1983 claim is error because he is not required to exhaust his state remedies before filing a 1983 claim, either in federal or state court. ( Patsy v. Board of Regents of Florida (1982), 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557.) We disagree. O'Keefe's procedural due process claim under 1983 is defective, not because he failed to exhaust state remedies, but because he has not shown that they are inadequate under a due process analysis. See Kauth v. Hartford Insurance Company ...

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