United States District Court, N.D. Illinois, Eastern Division
January 3, 2005.
JAMES D. MINCH, RICHARD A. GRAF and RICHARD CONSENTINO, individually, and on behalf of a class of all individuals who are similarly situated, Plaintiffs,
CITY OF CHICAGO, an Illinois Municipal Corporation, Defendant.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant City of Chicago's
("City") motion to dismiss. For the reasons stated below, we
grant the motion to dismiss.
Plaintiffs are former Chicago firefighters that were subjected
to mandatory retirement in December of 2000 in accordance with a
Mandatory Retirement Ordinance ("MRO") enacted by the City in May
of 2000. Plaintiffs filed a three count complaint alleging a violation of the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., (Count I), a
federal due process claim (Count II), and a state due process
claim (Count III). This action was consolidated with a similar
action brought by City police officers and firefighters and the
prior judge in this action certified a question for interlocutory
review in regards to Plaintiffs' ADEA claims. The Seventh Circuit
remanded the action back to this court and ordered that the court
dismiss the ADEA claims. The City has now moved to dismiss the
remaining due process claims in this action.
In ruling on a motion to dismiss, the court must draw all
reasonable inferences that favor the plaintiff, construe the
allegations of the complaint in the light most favorable to the
plaintiff, and accept as true all well-pleaded facts and
allegations in the complaint. Thompson v. Illinois Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins
v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The
allegations of a complaint should not be dismissed for a failure
to state a claim "unless 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 (1957). Nonetheless, in order to withstand a motion to
dismiss, a complaint must allege the "operative facts" upon which
each claim is based. Kyle v. Morton High School, 144 F.3d 448,
445-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). Under current notice pleading standard in
federal courts a plaintiff "need to plead facts that, if true,
establish each element of a "cause of action.'" See Sanjuan v.
American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251
(7th Cir. 1994) (stating that a "[a]t this stage the
plaintiff receives the benefit of imagination, so long as the
hypotheses are consistent with the complaint" and that
"[m]atching facts against legal elements comes later."). The
plaintiff need not allege all of the facts involved in the claim
and can plead conclusions. Higgs v. Carter, 286 F.3d 437, 439
(7th Cir. 2002); Kyle, 144 F.3d at 455. However, any
conclusions pled must "provide the defendant with at least
minimal notice of the claim," Id., and the plaintiff cannot
satisfy federal pleading requirements merely "by attaching bare
legal conclusions to narrated facts which fail to outline the
bases of [his] claim." Perkins, 939 F.2d at 466-67.
The City argues that the remaining due process claims must be
dismissed because Plaintiffs have not shown that they have been
deprived of a property interest. The limitations of procedural
due process "allow? the government to deprive a citizen of
`life, liberty, or property' only in accordance with certain
procedural protections. Doe v. City of Lafayette, Ind.,
377 F.3d 757, 768 (7th Cir. 2004). In order to succeed on a
procedural due process claim a plaintiff must establish that
there is: "(1) a cognizable property interest; (2) a deprivation
of that property interest; and (3) a denial of due process." Hudson v.
City of Chicago, 374 F.3d 554, 559 (7th Cir. 2004) (quoting
Buttitta v. City of Chicago, 9 F.3d 1198, 1201 (7th Cir.
The City argues that any property interest that Plaintiffs had
in continuing employment as a firefighter terminated when
Plaintiffs turned sixty three. In regards to governmental
employment "[t]he protections of the Due Process Clause apply to
government deprivation of those perquisites of government
employment in which the employee has a constitutionally protected
`property' interest." Gilbert v. Homar, 520 U.S. 924, 928
(1997). Plaintiffs argue that they base their property right in
continued employment on the section of the Collective Bargaining
Agreement ("CBA") that provides that the City "agrees that
employees shall be disciplined and discharged only for cause."
(CBA Sec. 16.2(B)) (Ans. 6). However, such a provision clearly was
in regards to disciplinary actions taken against employees and it
is not applicable in the instant action because none of the
Plaintiffs claim that they were forced into mandatory retirement
as part of a disciplinary measure for misconduct. Also, Section
9.1(C)(3) of the CBA enables the City to terminate employment
when the employee "[r]etires or is retired." (CBA Sec. 9.1) In
Section 9.1(C)(3) there is no "just cause" provision as there is
in Section 16.2(B) of the CBA which addresses disciplinary
Plaintiffs also argue that their property interest can be based
on the anti-discrimination section of the CBA which provides that
the City "shall not discriminate against any employee covered by this agreement
because of race, creed, color, national origin, sex, age,
religion, or political affiliation." (CBA Sec. 13.1). However,
the Seventh Circuit, in ordering the dismissal of the ADEA
claims, found that the MRO did not constitute age discrimination.
Clearly the provision in the CBA referred to unlawful age
discrimination for which the proper claim would be an ADEA claim.
The CBA did not provide that the City could not set a mandatory
retirement age or set such reasonable measures in regards to
retirement. Therefore, we grant the City's motion to dismiss.
Based on the foregoing analysis, we grant the City's motion to
© 1992-2005 VersusLaw Inc.