The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff James Phelan ("Plaintiff") has brought a four-count
Amended Complaint alleging that his employment with the City of
Chicago ("City") was unlawfully terminated in October of 1997.
The City moves the court to dismiss Counts I, II, and III of
Plaintiff's Amended Complaint for failure to state a claim upon
which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
For the reasons set forth below, the court grants the City's
motion to dismiss.
In 1992, Plaintiff was hired by the City as a police officer.
(Am. Compl. ¶ 5.) After Plaintiff took a leave of absence from
the City to serve as an Illinois State Representative, he
graduated from the Chicago Police Academy in September of 1993.
(Id.) In October of 1993, the Chicago Police Department granted
Plaintiff a leave of absence which was extended through 1996.
In November of 1995, while Plaintiff was on leave from the
Chicago Police Department, he was hired by the City's Department
of Streets and Sanitation to work as a Ward Superintendent for
the 23rd Ward. (Am. Compl. ¶ 6.) Plaintiff worked full-time as
Ward Superintendent until July of 1997 at which time he took
leave because of personal health problems. (Id. ¶ 9.) Plaintiff
exhausted all of his sick days and was still unable to return to
work. (Id.) In September of 1997, he applied for and was granted
leave under the FMLA. (Id. ¶¶ 9-10.)
In September of 1997, Plaintiff was indicted for mail fraud.
(Am. Compl. ¶ 11.) The indictment did not involve any allegations
of misconduct related to Plaintiff's employment with the City.
(Id.) Shortly after Plaintiff's indictment was publicly
announced, City personnel requested that Plaintiff resign from
his position as Ward Superintendent. (Id. ¶ 12.) When Plaintiff
refused to resign, the City informed him that he was being
terminated from his position effective October 23, 1997. (Id. ¶
13.) On the same day, Plaintiff was reinstated to his Ward
Superintendent position from FMLA leave and his discharge from
the Department of Streets and Sanitation was processed. (Id. ¶
On October 27, 1997, Plaintiff requested that the City
reinstate him to his position as. probationary police officer.
(Id. ¶ 15.) The next day, the City delivered a letter to
Plaintiff stating that as of October 24, 1997 his "resignation
has been processed." (Id.) Plaintiff had at no time resigned from
the Chicago Police Department. (Id.)
Plaintiff, subsequently, filed the subject Amended Complaint.
As is pertinent here, in Count I, Plaintiff alleges Fourteenth
Amendment due process and § 1983 claims stating that he was
terminated from his position as Ward Superintendent, as to which
he alleges a protected property interest, because he was not
afforded notice of the termination and he was not given a hearing
prior to his discharge. (Am. Compl. ¶ 18.) In Count II, Plaintiff
alleges that he was terminated while on a FMLA leave, in
violation of the FMLA. (Id. ¶ 19.) In Count II, Plaintiff alleges
an equal protection and § 1983
claim asserting that after his termination as Ward Superintendent,
he was not permitted to seek reinstatement as a police officer due
to intentional and arbitrary discrimination. (Id. ¶ 20.)
MOTION TO DISMISS STANDARD
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6)
is to test the sufficiency of the complaint, and not to decide
its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th
Cir. 1990). Courts read complaints liberally and a motion to
dismiss will be granted only if "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In reviewing a motion to
dismiss, the district court must treat all well-pleaded
allegations as being true and draw all reasonable inferences in
the light most favorable to the plaintiff Henderson v. Sheahan,
196 F.3d 839, 845 (7th Cir. 1999), cert denied, 120 S.Ct. 2691
(2000). "The issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims." Scheurer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct.1683, 40 L.Ed.2d 90 (1974).
At the same time, a plaintiff must include in the complaint
allegations concerning all material elements necessary for
recovery under the relevant legal theory. Chawla v. Klapper,
743 F. Supp. 1284, 1285 (N.D. Ill. 1990). This requirement, however,
must be considered in light of the federal system of notice
pleading, which merely requires that a plaintiff set out in the
complaint a short and plain statement of the claim that provides
the defendant with fair notice of what the claim is and the
grounds upon which it rests. McCormick v. City of Chicago,
230 F.3d 319, 323-26 (7th Cir. 2000); Scott v. City of Chicago,
195 F.3d 950, 951 (7th Cir. 1999). For fair notice to be given, "[a]
complaint must at least 'include the operative facts upon which a
plaintiff bases his claim.'" Lucien v. Preiner, 967 F.2d 1166,
1168 (7th Cir. 1992) (quoting Rogers v. Lincoln Towing Service,
Inc., 771 F.2d 194, 198 (7th Cir. 1985)). The issue the court
reviews is whether "sufficient facts [have been] pleaded to allow
the court and the defendants to understand the gravamen of the
plaintiff's complaint." Doherty v. City of Chicago, 75 F.3d 318,
326 (7th Cir. 1996); Kyle v. Morton High Sch., 144 F.3d 448, 455
(7th Cir. 1998).
I. DUE PROCESS CLAIM (COUNT I).
A. PLAINTIFF FAILS TO STATE A DUE PROCESS CLAIM IN VIOLATION
OF THE FOURTEENTH AMENDMENT BECAUSE HE DOES NOT ALLEGE ...