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MILAZZO v. O'CONNELL

April 26, 1996

ANNMARIE MILAZZO, Plaintiff,
v.
DONALD P. O'CONNELL, MARGARET KOSTOPULOS, and DAWN CATUARA, Defendants.



The opinion of the court was delivered by: CASTILLO

 Plaintiff Annmarie Milazzo brings this action pursuant to 42 U.S.C. § 1983 and state common law against defendants Donald P. O'Connell, the Chief Judge of the Circuit Court of Cook County, Illinois; Margaret Kostopulos, the Administrative Director of the Office of the Chief Judge; and Dawn Catuara, the Administrative Assistant to the Chief Judge. *fn1" The suit stems from Milazzo's abrupt employment termination by the defendants, and contains federal claims under the First and Fourteenth Amendments (Counts I-III), and a state law claim for retaliatory discharge (Count IV). The defendants have moved for dismissal of all counts pursuant to Federal Rule of Civil Procedure 12(b)(6).

 RELEVANT FACTS *fn2"

 Milazzo began working for the Circuit Court of Cook County on March 1, 1985, first as a secretary to the Executive Officer in the Office of the Chief Judge ("Office"), and then as a caseworker in the Social Services Department of the court. In August 1989, she began serving as a court coordinator in the Personnel Department of the court. In 1990, she was named to the position of Administrator of the Personnel Department. Milazzo held this title (now Administrator of the Human Resources Department) until her termination in 1995.

 Milazzo's duties were to implement the personnel policies adopted by the Chief Judge and his immediate staff. These duties included administering the summer job program for the Office, a task that involved receiving the applications and preparing summaries of them for the Chief Judge to use in deciding which applicants to hire. Another portion of her duties in administering the department involved working on the preparation of the budget for the Office, working with the Executive Officer on budget and payroll account issues generally, and participating in the initiation of a computer networking system linking the human resources sections of all the divisions of the court under the authority of the Office.

 Milazzo alleges that she was not accorded and did not exercise any autonomous or discretionary authority in the performance of these duties. As an example, the Chief Judge or his immediate staff were required to approve in advance any communication written by Milazzo that was intended to be sent to other employees.

 On July 12, 1995, Catuara called Milazzo into her office and told Milazzo that Judge O'Connell had decided to transfer everyone in the Human Resources Department. Milazzo was to be transferred to the Social Service Department at the Criminal Courts Building as a PS2 caseworker, a classification that carried a salary $ 14,000 lower than Milazzo's then current salary.

 Milazzo consulted with an attorney regarding this pending demotion and her legal options. The attorney contacted the Chief Judge's Office. On July 17, 1995, Kostopulos informed the attorney that the decision to transfer and demote Milazzo would not be reconsidered. The following day, Milazzo met with Kostopulos and told Kostopulos that, upon the advice of her attorney, Milazzo was accepting the caseworker position "under protest." Milazzo was told to report to her new job two weeks from then. Milazzo returned home after the meeting, where she was telephoned by Kostopulos, who said Judge O'Connell wanted to know what "under protest" meant and whether Milazzo would accept the position "without reservations." Milazzo stated that while she was not happy about the cut in salary, she had always given 100% at her job and would continue to do so. The next day, Milazzo received a letter stating that her employment with the Circuit Court was terminated.

 Milazzo's suit against Judge O'Connell, Catuara and Kostopulos contains four counts, the first three of which are brought pursuant to federal civil rights laws. *fn3" Count I alleges that Milazzo's firing violated procedural due process, because the Office's personnel policy manual and its custom and practice provided that discharges should be preceded by disclosure of the charges made, factual findings, and an opportunity for a hearing, yet Milazzo was terminated without any of these things. Count II alleges that Milazzo was fired based on her political affiliation, in violation of her rights under the First Amendment. Count III claims that Milazzo was fired in retaliation for consulting an attorney, also in violation of her First Amendment rights. Count IV alleges the same retaliation for consulting with an attorney, but is brought on a state common law theory of retaliatory discharge. The defendants have moved to dismiss all counts for failure to state a claim.

 LEGAL STANDARDS

 A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Ass'n, Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). When considering a motion to dismiss, the court views all facts alleged in the complaint, as well as any inferences reasonably drawn therefrom, in the light most favorable to the plaintiff. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In short, the only question is "whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (citations omitted).

 ANALYSIS

 Count I: Procedural Due Process

 "Procedural due process claims require a two-step analysis. The first step requires us to determine whether the plaintiff has been deprived of a protected interest; the second requires a determination of what process is due." Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982)). At issue here is the first step: whether Milazzo had a protected property interest in her continued employment with the Circuit Court such that her abrupt termination required due process.

 To establish that she had a protected property interest in continued employment, Milazzo must show that she had an entitlement to her job under Illinois law. See Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976) ("the claim of entitlement must be decided by reference to state law"). In Illinois, there is a legal presumption that employment for an unspecified term is employment at will, a relation that is terminable by either party at any time for any reason. See Duldulao v. St. Mary of Nazareth Hosp. Ctr., 115 Ill. 2d 482, 489, 505 N.E.2d 314, 317-18, 106 Ill. Dec. 8 (1987). Employment at will does not give rise to a property interest protected under the due process clause. Campbell v. City of Champaign, 940 F.2d 1111, 1112 (7th Cir. 1991) (citing Simpkins v. Sandwich Community Hosp., 854 F.2d 215, 218 (7th Cir. 1988)). As Milazzo has not alleged that she was hired to her position for a fixed period of time, her employment is presumed to be at will and she cannot bring a due process claim for the loss of her job unless she has alleged some exception to the at-will rule.

 Milazzo's first approach to the requirement of demonstrating a protectible property interest in her employment is to argue that some combination of the personnel policy manual promulgated by the Office of the Chief Judge, and the Office's alleged custom and practice of discharging employees only after notice and a hearing, together created "mutually explicit understandings" that gave rise to a protectible property interest in employment. See Complaint PP 25-27; Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318 (policy manual may demonstrate an agreement that employees will be fired only for cause); Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) (property interests "are defined by existing rules or understandings that secure certain benefits").

 This argument is untenable for a variety of reasons, only one of which need be cited here: the express language of the manual that is the heart of the argument. The manual states, in bold print on every page, "Employees of the Chief Judge are employed at the will of the Court. This personnel policy & procedure manual is not intended to alter the employment-at-will relationship." Def.s' Mem. in Support of Motion to Dismiss, Ex. B. *fn4" The very first sentence in the manual is, "THE POLICIES ARTICULATED IN THIS MANUAL ARE NOT TO BE CONSTRUED AS A CONTRACTUAL STATEMENT." Id. at 1-1. Thus, it is evident that the manual itself does not create contractual rights to permanent employment under Duldulao.

 Further, the section of the manual covering the procedures to be implemented before discharging employees (section 8.5) is full of language negating any promise that such ...


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