United States District Court, Northern District of Illinois, Eastern Division
December 29, 2000
JAMES PHELAN, PLAINTIFF
CITY OF CHICAGO, DEFENDANT.
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 A
PROTECTED PROPERTY RIGHT.
For a plaintiff to assert a violation of the due process claim
of the Fourteenth Amendment, he must demonstrate that he has a
protected property interest in his employment. Bishop v. Wood,
426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Board of
Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972). A property interest requires more than a "unilateral
expectation" or "abstract need" for the benefit sought. Roth, 408
U.S. at 577, 92 S.Ct. 2701. To allege a property interest, a
plaintiff must "have a legitimate claim of entitlement to it."
Id. Such claims of entitlement are "created and their dimensions
are defined by existing rules or understandings that stem from an
independent source such as state law — rules or understandings
that secure certain benefits and that support claims of
entitlement to those benefits." Id.
Therefore, in order for a plaintiff to survive a motion to
dismiss a due process claim he "must be able to allege that he
has a constitutionally protected property interest in the
expectation of continued public employment; and the existence of
such an interest is determined by reference to state law."
McElearney v. Univ. of Illinois, 612 F.2d 285, 289-90 (7th Cir.
1979) (on defendant's motion to dismiss, "examination of relevant
state law, consisting of state statutes, case law, and university
statutes, establishes that there is no protected property
Plaintiff rests his claim of entitlement to the Ward
Superintendent position on Sections 2-100-110 and 2-74-060 of the
Municipal Code of Chicago ("Municipal Code"). (Am. Compl. ¶ 7.)
However, neither provision supports Plaintiff's claim. Section
2-100-110 of the Municipal Code does no more than refer to Ward
Superintendents as employees of the Department of Streets and
Sanitation. Section 2-74-060 provides for hearings for City
employees, but by its express terms, it applies only to "career
service" employees. It states in pertinent part:
The personnel board, a member thereof, or a hearing
officer appointed by the board shall conduct a
hearing of all appeals by any career service
employee of discharge, demotion, or suspension for a
period of more than ten days upon request of the
employee, and may provide by rule for review of
suspensions of ten days or less. (emphasis added.)
Section 2-74-060 is consistent with Section 2-74-050(12) of the
Municipal Code which gives the City's Commissioner of Personnel
the power to issue personnel rules that provide, inter alia,
(12) For the establishment of disciplinary measures
such as suspension, demotion in rank or grade, or
discharge. For all permanent employees in the career
service, such measures shall provide a statement of
the charges on which discipline is based, together
with an explanation of the evidence supporting the
charges and an opportunity for the employee to
respond to the charges in writing before action is
taken, appeals after such disciplinary action, and a
hearing on the charges upon request of the employee
in case of discharge, demotion, or suspension
exceeding 30 days, consistent with the requirements
of the due process of law. (emphasis added.)
The Municipal Code sections relied on by Plaintiff thus clearly
create property rights only with respect to "career service" City
The Code does not provide procedures for
non-career service employees to challenge their termination, nor does
it provide that non-career service employees may be discharged
only "for cause." See also Misek v. City of Chicago, 783 F.2d 98
99-100 (7th Cir. 1986) (plaintiffs were found to have property
interests in their jobs, because they were career service
employees.) Because Plaintiff has not alleged that he was a
career service employee and has pleaded no other alleged basis
for a protected property right in his job*fn2
, he has not
established a basis of entitlement to his position as Ward
Superintendent within the meaning of the due process clause of
the Fourteenth Amendment.*fn3
B. ALTERNATIVELY: PLAINTIFF FAILS TO PLEAD AN UNLAWFUL
MUNICIPAL POLICY UNDER § 1983 AS TO HIS DUE PROCESS CLAIM.
In order for a plaintiff to state a & 1983 claim against a
must allege the existence of a municipal policy
or custom which caused the alleged violation. Monell v. Dep't of
Soc. Servs. of the City of New York, 436 U.S. 658
, 690-91, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality can be liable
under & 1983 only where its policy(s) is the "moving force"
behind the constitutional violation; i.e., the city's policy must
be the source of the discrimination. Samuel v. City of Chicago,
41 F. Supp.2d 808, 810 (N.D. Ill. 1999) and cases there cited. To
allege that a municipal policy has violated an individual's civil
rights under § 1983, a plaintiff needs to set forth either (1) an
express policy that, when enforced, causes a constitutional
deprivation; or (2) a widespread practice that, although not
authorized by express municipal policy, is so permanent and
well-settled that it amounts to a custom with the force of law; or (3)
a constitutional injury caused by a person with final
policymaking authority. Baxter by Baxter v. Vigo County Sch.
Corp., 26 F.3d 728
, 734-35 (7th Cir. 1994).
Plaintiffs in a § 1983 case against a municipality, though, are
required to comply only with the conventional standards of notice
pleading; they are not required to meet any heightened pleading
standard. Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 165, 113 S.Ct. 1160, 122 L.Ed.2d
517 (1993). Plaintiffs need not "allege all, or any of the facts
logically entailed by the claim . . . A plaintiff does not have
to plead evidence. [A] complaint does not fail to state a claim
merely because it does not set forth a complete and convincing
picture of the alleged wrongdoing." American Nurses Assoc. v.
Illinois, 783 F.2d 716, 727 (7th Cir. 1986).
A plaintiff, nevertheless, must do more than plead an empty
allegation of municipal policy to state a § 1983 claim. Taylor v.
City of Chicago, 1997 WL 51445, *2 (N.D. Ill. 1997); (citing
Doherty, 75 F.3d at 326 (7th Cir. 1996); McTigue v. City of
Chicago, 60 P.3d 381, 382 (7th Cir. 1995). "Boilerplate
allegations of a municipal policy, entirely lacking in any
factual support that a city policy does exist, are insufficient."
Sivard v. Pulaski County, 17 F.3d 185, 188 (7th Cir. 1994). A
plaintiff must plead operative facts which form the basis of the
claim. McCormick, 230 F.3d at 325.
In the Amended Complaint here, however, there is no mention at
all of a municipal "policy." Thus, there simply is no allegation,
conclusory or factual, to support a § 1983 due process policy
claim against the City here.*fn4
Moreover, Plaintiff's citation of Sledd v. Linsday,
102 F.3d 282 (7th Cir. 1996) and Lanigan v. Village of East Hazel Crest,
110 F.3d 467 (7th Cir. 1997), respectfully, is misplaced. In both
of these cases, unlike here, the plaintiffs expressly alleged
that the municipalities had maintained certain official policies
that violated the plaintiff's civil rights.
II. PLAINTIFF FAILS TO ALLEGE A VIABLE CLAIM UNDER THE FAMILY
MEDICAL LEAVE ACT (COUNT II).
In Count II, Plaintiff alleges that he was terminated from his
position as Ward Superintendent while on a FMLA leave, in
violation of the FMLA. 29 U.S.C. § 2601 et seq. (Am. Compl. ¶
19.) The City argues that this allegation is insufficient, even
under federal notice pleading standards, to state a claim under
the FMLA. (Def.'s Mem. at 8.) The court agrees.
Plaintiff does not allege he was discharged because he sought
or took an FMLA leave; rather, Plaintiff alleges only that he was
discharged "while on a FMLA leave." (Am. Compl. ¶ 19.) The FMLA,
however, prevents employers only from discriminating against
requesting leave authorized by the Act. 29 U.S.C. § 2617;
Hypes v. First Commerce Corp., 134 F.2d 721, 725-26 (5th
Cir. 1998). Therefore, if, as here, Plaintiff fails to allege
that his discharge was motivated by his request for leave there
is no liability under the FMLA. Id. See also Bennett v. Schmidt,
153 F.3d 516, 518 (7th Cir. 1998.) Under the FMLA, there is no
absolute right not to be discharged while on such a leave.
Kariotis v, Navistar Int'l Transp. Corp., 131 F.3d 672, 680 (7th
Cir. 1997) (employee has "no greater right to reinstatement or to
other benefits and conditions of employment than if employee had
been continuously employed during the FMLA leave period," citing
29 C.F.R. & 825.216(a)). See also Clay v. City of Chicago,
143 F.3d 1092, 1094 (7th Cir. 1998) (plaintiff, who was not
reinstated to her job on returning from FMLA, but instead was
advised she would be discharged, could not show her discharge was
for taking FMLA leave and therefore could not prove a violation
of the statute).
In short, Plaintiff has not alleged any legal wrong under the
III. EQUAL PROTECTION CLAIM (COUNT III).
A. PLAINTIFF HAS FAILED TO ALLEGE AN EQUAL PROTECTION CLAIM.
Plaintiff alleges that his Fourteenth Amendment equal
protection rights were violated when he was discharged and not
reinstated to his former position as police officer. (Def.'s Mem.
at 4.) Initially, Plaintiff is not alleging an equal protection
claim based on his membership in a particular class or vulnerable
group. See, e.g., New Burnham Prairie Homes, Inc. v. Village of
Burnham, 910 F.2d 1474, 1481-82 (7th Cir. 1990); Smith v. Town of
Eaton, 910 F.2d 1469, 1472 (7th Cir. 1990), cert. denied,
499 U.S. 962, 111 S.Ct. 1587, 113 L.Ed.2d 651 (1991). Also, the City
notes, inter alia, that Plaintiff has not alleged any fundamental
right that he is seeking to protect. Accordingly, where, as here,
there is no suspect classification or fundamental right asserted,
the government action that has been challenged is not subject to
strict scrutiny. Instead, that action need only bear a rational
relationship to a legitimate governmental purpose. Turner v.
Glickman, 207 F.3d 419, 424 (7th Cir. 2000); Wroblewski v. City
of Washburn, 965 F.2d 452, 458 (7th Cir. 1992).
When applying the described rational basis standard, courts
presume that the challenged governmental action is
constitutional. Wroblewski, 965 F.2d at 459 (citing City of New
Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d
511 (1976)). Review under the rational basis test "is not a
license for courts to judge the wisdom, fairness or logic" of the
government action. FCC. v. Beach Comm., Inc., 508 U.S. 307, 313,
113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). For a plaintiff to
overcome the presumption of rationality, he must meet a heavy
burden of showing that the challenged governmental action was
"completely ludicrously arbitrary." Pontarelli Limousine, Inc. v.
City of Chicago, 929 F.2d 339, 342 (7th Cir. 1991).
Plaintiff expressly recognizes that as an essential element of
his equal protection claim he must allege that there is "no
rational basis" for the City's acts. (Pl.'s Resp. Mem. at 5,
quoting Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct.
1073, 1074, 145 L.Ed.2d 1060 (2000).) Plaintiff, however, has not
alleged an absence of rational basis for the City's acts.*fn5 In
fact, to the contrary, Plaintiff does not dispute the City's
point that a rational
basis existed for the discharge; that is, Plaintiff was indicted
on federal mail fraud charges. Accordingly, Plaintiff has failed
to state an equal protection claim regarding his subject termination.
B. PLAINTIFF'S EQUAL PROTECTION CLAIM IS BARRED BY THE
STATUTE OF LIMITATIONS.
As seen, Plaintiff alleges defendant failed to reinstate him to
a position as a police officer, in violation of the equal
protection clause. (Am. Compl. ¶ 20.) Even, arguendo, if
Plaintiff's equal protection claim were otherwise viable,
however, this claim is untimely.
The statute of limitations for § 1983 claims in Illinois is two
years. Northen v. City of Chicago, 126 F.3d 1024, 1026 (7th Cir.
1997). Plaintiff did not allege in his original complaints in
this cause that he unlawfully was denied reinstatement to a
position as police officer. That adverse employment action was
raised for the first time in his Amended Complaint filed on or
about August 4, 2000. Plaintiff alleges he was denied
reinstatement on October 28, 1997 (Am. Compl. ¶ 15), more than
two years before the Amended Complaint was filed. That claim,
therefore, is time barred and subject to dismissal. See e.g,
Kauthar SBD v. Steinberg, 149 F.3d 659, 670 (7th Cir. 1998);
Tregenza v. Great Amer. Communications Co., 12 F.3d 717, 718 (7th
Citing Rule 15(c)(2)*fn6, Plaintiff contends that his
discharge as a probationary police officer is not limitations
barred as it arose out of the "same conduct, transaction or
occurrence" as his discharge as Ward Superintendent set forth in
the original pleading(s) herein. The court finds, however, that
Plaintiff's claim that the Chicago Police Department failed to
rehire him as a police officer does not relate back to the claim
that the Department of Streets and Sanitation discharged him from
his employment as a Ward Superintendent. These separate
employment actions at different times by different City
departments involving different jobs do not constitute the "same
conduct, transaction or occurrence" under Rule 15(c)(2).
C. ALTERNATIVELY: PLAINTIFF FAILS TO PLEAD AN UNLAWFUL
POLICY UNDER § 1983 AS TO HIS EQUAL PROTECTION CLAIM.
This § 1983 equal protection policy claim of Plaintiff falls
for the same reason(s) set forth in Plaintiff's § 1983 due
process claim, (Section I.B, supra.) Accordingly, Section I.B of
this opinion, supra, is incorporated herein by reference (except
for Footnote 4 thereunder).
In view of the foregoing, the City's motion to dismiss Counts
I, II, and III of Plaintiff's Amended Complaint is granted.