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11/01/96 ESTATE RALPH STROCCHIA v. CITY CHICAGO

November 1, 1996

ESTATE OF RALPH STROCCHIA, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, LEROY MARTIN, SUPERINTENDENT OF POLICE, FRED RICE, JR., DENNIS E. NOWICKI, JOSEPH BEAZLEY AND JOHN SHEERIN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 88 L 7762. The Honorable Ronald C. Riley, Judge Presiding.

Released for Publication December 10, 1996.

The Honorable Justice Hourihane delivered the opinion of the court. MC Nulty, P.j., and Cousins, J., concur.

The opinion of the court was delivered by: Hourihane

The Honorable Justice HOURIHANE delivered the opinion of the court:

This appeal arises out of a civil rights action filed by Ralph Strocchia (Strocchia), a career service officer with the Chicago Police Department, against the City of Chicago, pursuant to the provisions of 42 U.S.C. ยง 1983 (1988). *fn1 Strocchia claimed that the department's handling of his request for reinstatement to the police force following an approved leave of absence resulted in violations of his procedural and substantive due process rights. Strocchia appeals from the judgment of the circuit court entered upon a jury verdict in favor of the city.

On appeal, Strocchia asserts that the trial court erred by improperly instructing the jury; dismissing his state constitutional claims; denying his motions to amend the pleadings and for equitable relief; ruling incorrectly on certain evidentiary matters; and denying his motion for sanctions.

For the reasons that follow, we affirm the judgment of the trial court in favor of the city.

BACKGROUND

In 1981, plaintiff was a Chicago police officer assigned to the Traffic Division, Scofflaw Unit. Having served on the force for 29 years, he was classified as a "career service" employee of the city. On January 1, 1982, the Scofflaw Unit became a part of the city's law department. Plaintiff, along with several other police officers, took approved leaves of absence from the police department for calendar year 1982 and continued to work in the Scofflaw Unit under the auspices of the city's law department. Additional leaves of absence were granted for 1983 and 1984 for this purpose.

Plaintiff testified that at the time his initial leave of absence was granted, Hugh Conwell, who organized and headed up the Scofflaw Unit within the law department, advised him that he could return to the police department at the end of any approved leave, without loss in salary or seniority. Plaintiff was assured that the only difference between working for the law department and the police department was the payroll. As part of the transfer to the law department, arrangements were made with the Policemen's Annuity and Benefit Fund of Chicago so that plaintiff could make his pension contributions to the fund by personal check, rather than by payroll deductions. This preserved his continued service credit with the police department pension fund.

In 1984, the law department was reorganized and the position plaintiff occupied in the Scofflaw Unit was no longer treated or paid the same as a police officer. Thus, plaintiff and other officers similarly situated applied for reinstatement to their career service positions in the police department. In connection with plaintiff's reinstatement, on December 17, 1984, he reported for a medical examination to determine fitness for duty. The exam could not go forward because plaintiff ate breakfast that morning. Budgetary problems in the police department delayed rescheduling of the exam until January 22, 1985. For the most part, the other officers who sought reinstatement successfully completed their physicals and were returned to the force on or about January 1, 1985.

Following plaintiff's physical on January 22, Dr. Paul Mesnick, the police department's Chief Surgeon, advised plaintiff that a cardiac stress test was needed to complete the exam. The stress test was ordered in response to plaintiff's disclosure on a medical questionnaire that while on leave he had undergone brain surgery following a small stroke. Also while on leave, he was diagnosed as a diabetic. By the end of February 1985, plaintiff completed all required tests, but Dr. Mesnick wished to review the medical records from plaintiff's brain surgery.

Apparently frustrated by the delay in his reinstatement, in June or July 1985, plaintiff contacted former Superintendent of Police Richard Brzeczek for assistance. Brzeczek, an attorney in private practice, contacted former associates in the department concerning the status of plaintiff's reinstatement. Shortly thereafter, and prompted by a telephone call from an aid to then Deputy Superintendent of Police Dennis Nowicki, plaintiff finally signed the release for medical records on July 11, 1985. The records were received by the department August 8, 1985, and three weeks later the department began taking formal steps to reinstate plaintiff at full seniority.

In an August 28, 1995 letter to Nowicki, Brzeczek requested that plaintiff be reinstated and demanded back-pay to January 1, 1985. Around the same time, plaintiff was advised by John Sheerin, Assistant Director of Personnel, that he could return to the force on September 16, 1985, but this date conflicted with a European vacation plaintiff already had scheduled. Rather than delay his reinstatement, plaintiff requested that he be put on furlough beginning September 16. Commanding officers are allowed to decide such requests, but until plaintiff returned to work and received a duty assignment, he would have no commanding officer. Thus, during a conversation between plaintiff and Sheerin it was agreed that plaintiff would return one month later on October 16. According to plaintiff, Sheerin could not say what plaintiff's pay or seniority would be upon his return. Although plaintiff had earlier been advised by personnel that payroll information could be obtained through the finance division, plaintiff never contacted this office. On September 5, 1985, unbeknownst to plaintiff, the department approved plaintiff's reinstatement at full seniority and at the highest pay rate.

On September 4, 1985, Nowicki responded in writing to Brzeczek's August 28 letter. Nowicki attributed the delay in reinstatement to plaintiff's own conduct and the need to resolve some serious medical issues. Nowicki acknowledged that the September 16 start date conflicted with plaintiff's vacation, but did not mention the new start date of October 16. Rather, Nowicki stated that plaintiff should notify the department in writing upon his return of his future availability, which was never done.

Upon return from vacation, plaintiff first contacted Brzeczek who, according to plaintiff, advised him that the department was only offering reinstatement as a new hire. Brzeczek purportedly received this information from Nowicki. Plaintiff subsequently advised Sheerin that he was ready to return to work on October 16. Once again, Sheerin could not tell him what pay or seniority had been approved. Without first advising anyone in the department, plaintiff decided not to report for duty on October 16. Having failed to appear for work as scheduled, Rita Zimmerman in personnel checked with the law department and learned that plaintiff was still working there. Zimmerman did not speak directly with plaintiff. She advised payroll that plaintiff's return to duty was cancelled and that there was no corrected date for his return. Had plaintiff remained on both payrolls, his check from the law department would have been automatically cancelled.

On November 7, 1985, the department's approval of plaintiff's reinstatement was extended 60 days to early January 1986. Plaintiff was not notified of this action and at no time did he report for duty. Rather, plaintiff continued to take successive extensions of his leave of absence so that he could continue working in the law department. The last such extension was through 1986.

On January 10, 1986, plaintiff filed a petition for declaratory judgment in the chancery court seeking a ruling that he was entitled to reinstatement at his full salary and seniority, as well as backpay to January 1, 1985. Shortly thereafter, plaintiff resigned from the department, effective February 16, 1986. He noted on the departmental form that he was "retiring due to circumstances beyond [his] control."

Four months after his resignation/retirement, plaintiff amended his complaint in the chancery court, this time alleging a violation of his equal protection and due process rights, as well as a breach of his employment contract by the department for its failure to reinstate him and to pay him for accumulated overtime. He sought money damages only. His amended complaint was dismissed for want of prosecution on April 28, 1987.

One year later, he filed a complaint in the law division alleging that plaintiff had been singled out for additional medical testing and that the department had refused to reinstate him on the same terms as the other officers who had gone over to the law department. He asserted violations of his right to equal protection of the laws, violations of his due ...


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