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GYRION v. CITY OF CHICAGO

May 4, 2005.

MARK C. GYRION, Plaintiff,
v.
CITY OF CHICAGO, a municipal corporation, RICHARD M. DALEY, as Mayor of the City of Chicago; RICHARD A. RICE, as Commissioner of the Water Management Department of the City of Chicago; RICHARD KINCZYK, individually and as former First Deputy Commissioner of the Water Management Department of the City of Chicago; CHICAGO SUN-TIMES, INC., an Illinois corporation; TIM NOVAK, individually and as agent of Chicago Sun-Times, Inc.; STEVE WARMBIR, individually and as agent of Chicago Sun-Times, Inc.; and FRAN SPIELMAN, individually and as agent of Chicago Sun-Times, Inc., Defendants.



The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge

MEMORANDUM OPINION AND ORDER

This is an action arising out of the discharge of plaintiff Mark C. Gyrion from employment by the City of Chicago. Before the court are two motions to dismiss the complaint. The discharge came about because of Mr. Gyrion's alleged involvement in the City's Hired Truck Program ("HTP").

Mr. Gyrion sues the City of Chicago ("City"), its mayor, Richard M. Daley ("Mayor Daley"), Richard A. Rice, the Commissioner of the City's Water Management Department, and Richard Kinczyk, First Deputy Commissioner of the Water Management Department, (collectively, the "City Defendants") under 42 U.S.C. ยง 1983, for violation of his civil liberty interest in his employment and deprivation of his right to due process of law under the federal and Illinois constitutions. He also sues Mr. Kinczyk for defamation per se and false light invasion of privacy (apparently on a theory of supplemental jurisdiction). A second group of defendants consists of Chicago Sun-Times, Inc., an Illinois corporation which publishes a daily newspaper of general circulation in Chicago ("Sun-Times"), and three parties who are all sued individually and as agents of the Sun-Times: Tim Novak, Steve Warmbir, and Fran Spielman. The members of the second group are sometimes referred to, collectively, as the "Media Defendants." No separate basis for jurisdiction is alleged as against any of the Media Defendants.*fn1

  Count I of the Complaint alleges that the City Defendants deprived Mr. Gyrion of his liberty interest in the pursuit of his calling because, on false grounds, it both terminated his employment as a City official and held a press conference in order to publish the reasons therefor. Count II of the complaint alleges that the City Defendants violated Mr. Gyrion's right to due process in that they took such actions without notice or affording Mr. Gyrion the opportunity to clear his name. Counts III and IV are directed solely at Mr. Kinczyk and allege, respectively, defamation and false light privacy stemming from statements made by Mr. Kinczyk at the press conference. Count V is addressed to the Media Defendants and alleges that they committed the tort of false light privacy in their reportage of Mr. Gyrion's actions. The two groups of defendants have filed separate motions to dismiss.

  Factual Background

  Prior to the events which gave rise to this case, the City was under close scrutiny by Chicago media in connection with the HTP. Questions were raised by the media as to possible self-dealing by City executives and workers, and criminal prosecutions have since been initiated by the United States Attorney in this district based upon the handling of the HTP.

  Mr. Gyrion is a cousin of Mayor Daley. He was employed by the City in various capacities for a period of nineteen years and received numerous job promotions. In July 2001 he was promoted to the position of Projects Administrator for the Water Management Department. In early 2004 he was named by Mayor Daley as part of a "Dream Team" that was going to oversee operations and construction for the Department. That promotion would have brought him additional employee benefits including a raise in pay. One of the stories covered by Chicago media in connection with the HTP concerned the fact that Mr. Gyrion's mother-in-law Naomi Baker is the owner and operator of JACZ Transportation Company, through which she is alleged to have bought trucks being sold by the City's Water Management Department and leased them back to the Department at a profit.

  Mr. Gyrion alleges that he has never had an interest in JACZ or worked for that entity. He further alleges that prior to February 5, 2004, he was scheduled to be delegated responsibility over the Department's HTP, and that at meetings held prior to that date with Messrs. Rice, Kinczyk, and others, he informed those in attendance that he could not be involved with the HTP "in that he had relationships which were involved with the HTP," but that no one ever asked him to explain the relationships.

  On February 6, 7, and 8, 2004, the Sun-Times published a series of articles (the "February Articles") which, Mr. Gyrion alleges on information and belief, were written by Messrs. Novak, Warmbir, and/or Spielman. The February 6th article makes specific reference to JACZ, the relationships between Mr. Gyrion and Mayor Daley, and Mr. Gyrion's relationship with Naomi Baker and states further: "The ties between a top city employee and a trucking firm in the Hired Truck Program is the latest example of the network of inside connections and clout that permeate the program." The article also states: "Mark Gyrion, a cousin of Mayor Daley, helps run the city Water Department, while Gyrion's mother-in-law has raked in hundreds of thousands of dollars renting dump trucks to the agency since 1998." On February 9, 2004, Mr. Gyrion was summoned to Mr. Rice's office and told that his employment by the City had been terminated. Mr. Gyrion alleges that he had received no notice of any problem or issue relating to his employment with the City prior to his termination; that when Commissioner Rice first told Mr. Gyrion he was terminated, Mr. Rice gave him no reason for the termination nor any opportunity to discuss the allegations contained in the February Articles; and that when Mr. Gyrion asked for a reason, Mr. Rice told him he was being terminated for a "perception" based upon the February Articles and did not give him an opportunity to present a defense to the charge.

  Within a few hours after the meeting in which Mr. Rice terminated Mr. Gyrion, Mayor Daley and Mr. Kincsyk conducted a press conference which was videotaped and later shown by CLTV, a Chicago cable television station. At the press conference, Mayor Daley denied knowledge of the details of the firing and referred questions to Mr. Kinczyk, who stated: "We fired Mark Gyrion because he betrayed the public trust, he betrayed the trust of myself and Commissioner Rice, and hasn't used good judgment, and that's it." Mr. Kinczyk also stated: "Ninety-nine percent of the people that are employed by my department are good honest people, because I have one foul ball is not an indictment of my entire department." Mr. Kinczyk also stated in response to a question that Mr. Gyrion should have come to him and told him that "I've got some exposure in this." Mr. Gyrion alleges that no one from the City gave him an opportunity to respond to the statements made by Mr. Kinczyk during the press conference, which further placed him in a false light and defamed him; that Mr. Gyrion has suffered "diminished and otherwise lost wages, along with diminished ability to obtain certain employment based upon said termination and the conduct" of the defendants.

  I.

  On a motion to dismiss, I accept all well-pleaded allegations in the complaint as true. Turner/Ozanne v. Hyman/Power, 113 F.3d 1312, 1319 (7th Cir. 1997), and grant the motion only if the plaintiff can prove no set of facts to support the allegations in his claim. Strasberger v. Bd. Of Educ., 143 F.3d 351, 359 (7th Cir. 1998). In federal practice the function of a civil complaint is to give the defendant adequate notice of the elements of the claims made and not to furnish evidentiary detail. I do not rule on the merits of Mr. Gyrion's claims against the City Defendants, and nothing herein contained should be so construed. I simply hold that as to those defendants he has adequately alleged the elements of his claims. I dismiss his claim against the Media Defendants with prejudice, because I find the defect in his pleading of that claim to be so fundamental that I do not see how it can be cured.

  II. The Motion of the City Defendants

  In Count I of his complaint, Mr. Gyrion alleges that the City Defendants deprived him of his liberty interest to pursue his employment and calling. Official Capacity Claims. The City Defendants contend that Mayor Daley and Mr. Rice are sued in their official capacities only, and that a suit against a municipal official in his official capacity is construed as a suit against the municipality, thus making Mr. Gyrion's claims against the Mayor and Mr. Rice redundant. This argument is incorrect when viewed in the light of Owen v. City of Independence, 445 U.S. 622, 647-48 (1980) (members of city council not immune from a section 1983 suit against the city for liberty interest in reputation without due process). See Sims v. City of New London, 738 ...


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