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November 17, 1997

CITY OF CHICAGO, an Illinois municipal corporation, Defendant.

The opinion of the court was delivered by: CASTILLO

 Plaintiff Matthew Brownlee had been working as an Electrical Mechanic Apprentice ("EMA") for the City of Chicago just under four years when the City abruptly fired him for allegedly violating its residency requirement. Brownlee's Union protested both the manner of and reasons for Brownlee's discharge through the collectively bargained grievance and arbitration process, to no avail. The arbitrator ruled for the City, finding that Brownlee's discharge was procedurally sound under the Collective Bargaining Agreement ("CBA") and that the CBA gave him no authority to determine whether Brownlee's discharge was substantively proper. Brownlee then brought suit in this Court under 42 U.S.C. § 1983, alleging that the City violated his procedural due process rights by terminating him without notice and a hearing. Before us are the parties' cross-motions for summary judgment, which boil down to a single issue: did Brownlee have a property interest in his job entitling him to procedural due process? *fn1" Answering in the negative, we grant summary judgment for the City. *fn2"


 Brownlee held the EMA position in the City of Chicago's Department of Aviation from August 1, 1991 until he was fired on May 5, 1995. Def.'s Facts P 3. He was allegedly terminated for failing to remain a Chicago resident while working for the City. Pl.'s Facts P 6. Despite stating this reason for discharge, the City believed that Brownlee's termination demanded neither explanation nor process. In a letter dated two days before Brownlee was fired, the City's Commissioner of Personnel told Brownlee's department head that under the City's Personnel Rules Brownlee was an "exempt program employee," who could be "'disciplined or discharged at any time for any reason or no reason'" and had "'no expectation of continued employment.'" Def.'s Facts Ex. F (quoting City of Chicago Personnel Rule XVIII-A (rev. Feb. 24, 1995)). The Commissioner further opined that "progressive discipline procedures and hearings are not applicable for these employees." Id.

 After Brownlee was fired, the International Brotherhood of Electrical Workers Local 134 (the Union to which Brownlee belonged) wrote several letters to City Aviation and Personnel Department officials, informing them that the Union had filed a letter of appeal and a grievance on Brownlee's behalf. Def.'s Facts Ex. G. The Union's position was that Brownlee had a right to a hearing before the City's Personnel Board to refute the charges against him. Id. On June 7, 1995, the Commissioner of Personnel denied the Union's hearing request, responding that "only career service employees are eligible for a hearing before the Personnel Board." Compl. Ex. C. Because Brownlee occupied an "exempt program" (i.e., at-will) position as an EMA, he was not a career service employee entitled to a hearing before termination. Id.

 Brownlee never got his hearing; nor did he receive a statement of the charges and evidence against him. Pl.'s Facts P 15; Def's Facts P 14. Consequently, the Union proceeded to the next step in the CBA's grievance process -- binding arbitration.

 The arbitration focused on provisions in the parties' CBA relating to Brownlee's employment classification. One question the parties presented to the arbitrator is relevant here: whether the City violated the CBA by firing Brownlee without thirty days' notice or a hearing before the Personnel Board. Def's Facts Ex. E (City of Chicago v. IBEW, Local 134, Grievance No. 102 (Sept. 17, 1996) (Hill, Arb.)), at 3. The Union argued that these notice and hearing rights stem from Brownlee's status as a career service employee. Id. It claimed that the source of this status is the CBA, which provides that City employees who complete six months of probationary service become career service employees. *fn4" Id. Under this provision, Brownlee automatically received a promotion to career service after the first six months of his employment. Id. The Union further contended that, along with career service status, the CBA furnished the right to a Personnel Board hearing before discharge -- a right that Brownlee had been denied. *fn5" Id. at 4. The City countered that Brownlee was classified not as career service but rather as an "exempt program employee" under the City's Personnel Rules, which the CBA incorporated by reference. Id. at 7-8. The strongest evidence of non-career service classification lay in the Apprenticeship Agreement ("AA") appended to the CBA, which governs EMAs and withholds career service status until the EMA completes a four-year apprenticeship. *fn6" Id. at 9. Because the AA provides an alternative track to career service for EMAs (four years instead of six months), preempts contrary CBA provisions, see Def.'s Fact Ex. B, at 1, and has a bargaining history revealing that EMAs are to be employed at will, the City maintained that the AA unequivocally removed Brownlee from the CBA's career service category. Id.

 The arbitrator agreed with the City. Charged only with interpreting the CBA, the arbitrator held that the CBA did not accord Brownlee notice or hearing rights. Id. at 16. The parties agreed that these rights belong solely to career service employees; as such, the arbitrator determined that the dispositive issue was whether "the Grievant attained 'Career Service status'" or, alternatively, was an "'exempt program employee.'" Id. at 11. The arbitrator found that Brownlee fell into the latter category. Id. at 13. As between the CBA's six-month probationary path to career service and the AA's four-year career service track for EMAs, the AA's scheme controlled Brownlee's status. Id. at 12-13. The AA preempted conflicting CBA provisions, and its bargaining history, gleaned from arbitration hearing testimony, supported interpreting its language as precluding career service status "until [Brownlee] completes his apprenticeship training." Id. at 13-15. Fired short of finishing his training, Brownlee did not satisfy the AA's requirements for career service. Id. at 13. Furthermore, other evidence belied Brownlee's claim to career service status: he had never been compensated as a probationary career service employee, and personnel work histories, action reports, and Union activity reports all referred to Brownlee as an "exempt program employee." Id. at 12. *fn7"

 His Union having lost the battle for procedural rights in arbitration, Brownlee takes a different approach before this Court. He eschews reliance on the CBA, and argues instead that the City of Chicago's Municipal Code and Personnel Rules confer a Fourteenth Amendment Due Process property interest in his position as EMA. These two sources, he contends, establish that the EMA is in fact a career service position, accompanied by procedural due process rights to notice and a hearing before discharge. The CBA is not to the contrary, but simply cedes authority to the Code and Rules on all discharge issues. In short, Brownlee steers this Court toward the Code and Rules as the origin of Brownlee's property interest in continued employment. Conversely, the City claims that the CBA and the AA are the exclusive documents governing Brownlee's employment status and procedural rights. Under Illinois law, the CBA and its appended AA preempt any conflicting Municipal Code sections and Personnel Rules. The City points out that the arbitrator, who has the last word on questions of CBA interpretation, has already decided that the CBA and AA do not accord Brownlee career service status or notice and hearing rights. The City urges the Court not to permit Brownlee to subvert the arbitrator's decision under the guise of a constitutional claim.

 Based on these arguments, our task is to decide which of these various sources -- the Code, Rules, CBA or AA -- governs Brownlee's employment status. Then we must determine what status that source (or sources) assigns to Brownlee. If the answer is career service status, the parties agree that Brownlee has a property interest in his job entitling him to procedural due process before termination. Any other answer is fatal to Brownlee's constitutional claim.


 Summary judgment is proper when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1995). A genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view all evidence in a light most favorable to the nonmoving party, and draw all reasonable inferences from the evidence in the nonmovant's favor. Cincinnati Ins., 40 F.3d at 150. But if the evidence is merely colorable, or is not significantly probative, or just raises "some metaphysical doubt as to the material fact," summary judgment may be granted. Liberty Lobby, 477 U.S. at 261; Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255.

 When the parties submit cross-motions for summary judgment, the court is not required to grant judgment as a matter of law for one side or the other. Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). The court must evaluate each party's motion on its own merits, resolving factual uncertainties and drawing all reasonable inferences against the party whose motion is under consideration. Id.; Buttitta v. City of Chicago, 803 F. Supp. 213, 217 (N.D. Ill. 1992), aff'd, 9 F.3d 1198 (7th Cir. 1993). This is more of a semantic exercise here because both parties' motions spotlight the same issue: did Brownlee have a property interest in his job as contemplated by the Fourteenth Amendment's Due Process Clause? *fn8"


 I. Legal Standards Governing Procedural Due Process Claims

 Procedural due process claims under the Fourteenth Amendment must satisfy a two-part inquiry: 1) the plaintiff must show that he possesses a constitutionally protected property interest; and 2) the plaintiff must demonstrate that he was deprived of that interest without due process. Kim Constr. Co. v. Board of Trustees, 14 F.3d 1243, 1245 (7th Cir. 1994) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985); Listenbee v. City of Milwaukee, 976 F.2d 348, 351 (7th Cir. 1992)). "Unless [the plaintiff] can establish as a matter of federal constitutional law that [his] claim is based on a protected property interest, the issue of whether [he] was afforded due process before being deprived of that interest does not arise." Id. (citations omitted).

 Whether a public employee has a constitutionally protected property interest in his job depends on whether he has a "legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Job entitlements are not created by the Constitution, but rather "are defined by existing rules or understandings that stem from an independent source such as state law," id., for example, a city ordinance or an implied contract, see Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976). If these independent sources confer upon the public employee a "legitimate claim of entitlement to continued employment," he meets his burden of proving a constitutionally protected property interest, and must receive due process of law before termination. Perry v. Sindermann, 408 U.S. 593, 602-03, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972), overruled on other grounds, Rust v. Sullivan, 500 U.S. 173, 114 L. Ed. 2d 233, 111 S. Ct. 1759 (1991). The "hallmark of a property interest in continued employment" is a provision prohibiting the employee's removal except for "just cause"; in contrast, authorization to terminate an employee at will belies any property interest in continued employment. Harvey Brown & Sarah V. Kerrigan, 42 U.S.C. § 1983: The Vehicle for Protecting Public Employees' Constitutional Rights, 47 BAYLOR L. REV. 619, 633 (1995) (citations omitted).

 The parties agree that only career service employees possess a protected property interest in continued employment which, in turn, entitles them to a post-termination hearing before the City's Personnel Board. See Ciechon v. City of Chicago, 686 F.2d 511, 517 n.3 (7th Cir. 1982) (career service paramedic with City of Chicago "had a property interest in her job based on the statutory requirement that permanent career service employees of the City not be discharged without cause.") (citing Chicago Mun. Code ch. 25.1-6; City of Chicago Personnel Rule XVI, §§ 3-4); see also Santella v. City of Chicago, 936 F.2d 328, 330-32 (7th Cir. 1991) (finding city employee's ...

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