Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


May 12, 2005.

CITY OF HARVEY, ILLINOIS, an Illinois municipal corporation, a body politic; ERIK KELLOGG, Mayor of the City of Harvey, Illinois; FRANK PIEKARSKI, JOSEPH WHITTINGTON, DARYL CRUDUP, THOMAS DANTZLER, DONALD NESBIT, RONALD WATERS, in their official capacities as members of the City of Harvey; and WILLIAM C. BELL, JR., Public Safety Fire Administrator, in his individual and in official capacity as an employee of the City of Harvey, Defendants.

The opinion of the court was delivered by: CHARLES KOCORAS, District Judge


This matter comes before the court on the motion of Defendants Erik Kellogg, Frank Piekarski, Joseph Wittington, Daryl Crudup, Thomas Dantzler, Donald Nesbit, Ronald Waters, William Bell, and the City of Harvey (collectively referred to as the "Defendants") to dismiss Counts I-III of the complaint of Plaintiff Frank Hauenschild pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the motion is denied.


  Because this case comes to us in the context of a motion to dismiss, we take all well-pleaded facts alleged in the complaint as true. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Hauenschild served on the Harvey Fire Department from 1977 until early 2004. For his last 12 years as a firefighter, he held the rank of captain and served as shift commander. In those positions, he was responsible for management tasks such as scheduling and supervising firefighters who served during his shift, as well as responding to fire calls. Until December 2003, Hauenschild had a consistent shift of 24 hours on duty followed by 48 hours off duty, referred to as a 24/48 shift. This atypical (by conventional employment standards) schedule allowed him to obtain a law degree and thereafter to become a practicing attorney while maintaining his job as a firefighter.

  Defendant Bell is also a veteran of the department, enjoying a 20-year tenure and attaining the rank of Fire Chief prior to his retirement in 1996. Upon his departure, Bell began receiving pension benefits from the department. In May 2003, Defendant Kellogg was elected mayor of Harvey.*fn1 Shortly thereafter, he appointed Bell to serve as the Public Safety Fire Administrator. According to the complaint, the position did not exist before Kellogg took office, and the duties and trappings of the position were indistinguishable from those of the Fire Chief's office. Hauenschild alleges that Bell's assumption of the office of the Administrator was virtually contemporaneous with Kellogg's election even though the position was not officially created until August 2003.

  At the time of Bell's appointment, Hauenschild was a member of the Board for the Harvey Firefighters Pension Fund. Its president was another firefighter named Richard Stockwell. When Bell began serving as administrator in approximately May 2003, Stockwell terminated Bell's pension payments, apparently concluding that Bell had reentered active service in the department. According to Stockwell's interpretation of 40 ILCS § 5/4-117(a),*fn2 Bell's receipt of the administrator's salary barred his continued collection of retirement benefits. It appears from the complaint that Stockwell's unilateral decision as board president was appealable to the board as a whole. Bell sought this review in October 2003; in the meantime, Hauenschild had been elected to replace Stockwell as president of the board. The seven-member board heard Bell's appeal on or around December 1, 2003, and voted four to three in support of the earlier decision to discontinue Bell's retirement benefits. Hauenschild was one of the four who agreed with Stockwell's initial determination.

  According to Hauenschild, the day after the hearing, Bell rescinded the yearly schedule that Hauenschild and the other two shift commanders had prepared for the department's staffing for 2004. The day after that, Bell removed him from the 24/48 shift and instead required him to work five eight-hour shifts per week, Monday through Friday. He was moved into an office that had been converted from a storage room, located in an area for which he was not given keys. He was divested of his position as shift commander, thus terminating his supervisory duties. He was no longer permitted to respond to fire calls. His sole duty was to update the department's policy manual, a task that had not been attended to for 20 years.

  Hauenschild's new schedule adversely impacted his legal practice, so he requested that Bell restore him to his previously occupied shift. After Bell refused, Hauenschild sent a letter to each of the individual Defendants, detailing Bell's actions and alleging that he had so acted to retaliate against Hauenschild for voting not to reinstate his pension benefits. Hauenschild's circumstances did not change, and in early January 2004 he resigned from the department.

  Approximately one year later, Hauenschild filed suit. The four-count complaint alleged First Amendment retaliation, deprivation of a property right in contravention of the Fourteenth Amendment, conspiracy to violate Hauenschild's constitutional rights, and a state-law claim for wrongful termination. Defendants moved to dismiss the complaint in its entirety for failure to state a claim pursuant to Fed.R. Civ. Proc. 12(b)(6).


  When considering a 12(b)(6) motion to dismiss, a court evaluates the legal sufficiency of a plaintiff's complaint, not the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). We must accept all well-pleaded allegations as true and will not dismiss a case for failure to state a claim unless the plaintiff cannot prove any facts sufficient to support his claim. Conley, 355 U.S. at 45-46. All inferences are to be drawn in a light most favorable to the plaintiff. Jackson v. E.J. Branch Corp., 176 F.3d 971, 978 (7th Cir. 1999). To survive a motion to dismiss, a plaintiff need only provide a "short and plain statement" under Rule 8(a)(2); the particulars of the claim are not required. Midwest Gas Servs. v. Ind. Gas. Co., 317 F.3d 703, 710 (7th Cir. 2002). Nonetheless, to withstand a motion to dismiss, a complaint must allege facts that set forth the essential elements of the cause of action. Doherty v. City of Chicago, 75 F.3d 318, 326 (7th Cir. 1996). With these principles in mind, we consider the instant motion.


  As an initial matter, we note that Hauenschild acknowledged in his response that Count IV, a claim for wrongful discharge under Illinois law, is not viable. He also concedes that he cannot pursue any damage claims against the individual Defendants in their official capacities. Finally, he disavows any intention of seeking punitive damages against the City or the individual Defendants in their official capacity. His request that he be permitted to file ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.