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Kodish v. Oakbrook Terrace Fire Protection Dist.

March 26, 2008


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendants' motion for summary judgment. For the reasons stated below, we grant the motion for summary judgment on the claims included in Count I and dismiss the remaining state law claims without prejudice.


Plaintiff Brian Kodish ("Kodish") alleges that he was hired by Defendant Oakbrook Terrace Fire Protection District ("District") in June 2003, to work as a firefighter/paramedic. Defendants Donald Ventura ("Ventura"), Andy Sarallo ("Sarallo") and Joe Dragovich ("Dragovich") are allegedly trustees of the District. According to Kodish, in December 2003, he injured his knee while working for the District. Starting in March 2004, Kodish allegedly did not report for work under the advice of his doctors. In May 2004, Kodish allegedly underwent surgery and in July 2004, he was allegedly released to full duty by a medical doctor. Kodish claims that on August 2, 2004, he was informed by Illinois Public Risk Fund ("IPRF"), the District's workers' compensation carrier/administrator, that it would not pay for the medical bills for his surgery since he did not suffer a work-related injury. Kodish contends he told Defendant Gregory J. Sebesta ("Sebesta"), Chief of the District, that he decided that he needed to take time off to hire an attorney to deal with his medical bills issue. According to Kodish, on August 8, 2004, he spoke with Lt. Hallik at the District, who told Kodish to take off August 9, 2004, which was a scheduled work day for Kodish. Kodish then allegedly met with an attorney on August 9, 2004, to discuss his medical bills situation. When Kodish returned to work on August 12, 2004, Sebesta allegedly told Kodish that he had taken a sick day for his absence on August 9, 2004, which Kodish had not earned. Sebesta allegedly indicated that he had informed the District's Board of Trustees ("Board") of the rule violation and the Board decided to terminate Kodish's employment. Sebesta then allegedly provided Kodish with a typed letter of resignation and had Kodish sign it, even though Kodish allegedly did not want to resign.

Kodish claims that Sebesta cajoled Kodish to cause him to sign the resignation letter. According to Kodish, Sebesta lied to Kodish, promising Kodish that if he signed the letter, he would receive a good reference for future employment and he could maintain his health insurance. Sebesta also allegedly told Kodish that if he did not resign, Kodish would not have the benefit of unemployment insurance payments. Kodish claims that the District terminated his employment because he had previously told Sebesta that he was going to pursue a workers' compensation claim. Kodish also contends that the District terminated his employment because of Kodish's "speech in favor of unions, which he was legally entitled to do." (SA Compl. Par. 61). After Kodish's termination, Sebesta allegedly falsely informed third parties not employed by the District that Kodish no longer worked for the District, which Kodish contends harmed his reputation. Kodish includes in his second amended complaint a claim brought pursuant to 42 U.S.C. § 1983 ("Section 1983") alleging a violation of his due process rights by the District, Sebesta, Dragovich, Sarallo, and Ventura (Count I), a First Amendment claim brought against all Defendants (Count I), a wrongful termination claim brought against the District (Count II), and a defamation claim brought against all Defendants (Count III). Defendants have moved for summary judgment on all claims. On March 6, 2008, this case was reassigned to the undersigned judge.


Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


I. Section 1983 Due Process Claim (Count I)

Defendants argue that they are entitled to summary judgment in their favor on the Section 1983 due process claims because Kodish has not shown that he had a protectable property interest and Kodish was not deprived of any liberty interest. For a procedural due process claim, a plaintiff must establish "that the State deprived him of a protected liberty or property interest and that the deprivation occurred without adequate due process." Salas v. Wisconsin Dept. of Corrections, 493 F.3d 913, 926 (7th Cir. 2007). Whether the plaintiff had "a property interest in continued employment is governed by" state law. Id. Kodish concedes in his response brief to Defendants' motion for summary judgment that he is not contending that he was deprived of a liberty interest and is solely basing his due process claim on an alleged deprivation of a protectable property interest. (Ans. SJ 7). Defendants argue that there is insufficient evidence that shows that Kodish has a protectable property interest in continued employment since Kodish was a probationary firefighter.

Under 70 ILCS 705/16.13b ("Section 705/16.13b"), "no officer or member of the fire department of any protection district who has held that position for one year shall be removed or discharged except for just cause, upon written charges specifying the complaint and the basis for the charges, and after a hearing on those charges before the board of fire commissioners, affording the officer or member an opportunity to be heard in his own defense. . . ." 70 ILCS 705/16.13b (emphasis added). The District's Wage and Benefit Policy ("Policy") states that "[a]ll new employees . . . shall be considered probationary employees until they complete a probationary period of twelve (12) months, provided that the probationary period may be extended if the employee is absent from duty for a period of more than thirty (30) calendar days continuously or more than thirty (30) duty days in the aggregate." (R SF Par. 5).

A. Whether Kodish was a Probationary Firefighter

Kodish contends that when his employment terminated, he was no longer a probationary firefighter since he had worked for the District for more than one year. A probationary firefighter does not have legitimate expectation of continued employment. See, e.g., Lewis v. Harris, 965 F. Supp. 1179, 1183 (C.D. Ill. 1997)(noting that "[a] line of cases since Romanik has held that as a general rule, probationary police officers do not have property interests in their employment"). The basis for a probationary period such as the one provided in Section 705/16.13b is to enable an employer to observe the employee and decide if the employer desires to make the employee an offer for continued employment. See Romanik v. Board of Fire and Police Com'rs of East St. Louis, 338 N.E.2d 397, 399 (Ill. 1975)(indicating in cases dealing with the Illinois Municipal Code "[i]t is only through probationary appointments for a reasonable period, during which firemen and policemen may be observed in the actual performance of their duties in situations of danger, that their real worth and mettle may be tested"); Kuykendall v. Board of Educ. of Evanston Tp. High School Dist. No. 202, 444 N.E.2d 766, 770 (Ill. App. Ct. 1982)(stating that "[t]he probationary period gives an employee the opportunity to prove himself, and it also permits an employer to evaluate the employee's performance before being committed to contractual continued service"). The Policy also specifically provides that "[d]uring an employee's probationary period the employee may be suspended or terminated at the sole discretion of the employer." (R SF Par. 5).

In the instant action, it is undisputed that the District could require firefighters to serve a one-year probationary period. (R SF Par. 5). Defendants contend that a probationary firefighter is required to serve the full probationary period in order to allow supervisors to observe the probationary firefighter and assess his work performance. Kodish admits that when he was hired he was a probationary firefighter and he was bound by the Policy. (R SF Par. 3). Kodish also admits that he received a copy of the Policy, which informed him of the District's right to extend his probationary period if there was a prolonged absence. (R SF Par. 5-6). It is undisputed that Kodish was hired on June 2, 2003, and thus, his probationary period, if not extended under the Policy, should have ended on June 2, 2004. (SA Compl. Par. 8). It is also undisputed that Kodish had an extended term of absence during his originally planned probationary period. (R SF Par. 20, 23). Kodish acknowledges that he injured his knee in December 2003 and he ultimately took approximately four months off work. (SA Compl. Par. 9-12); (R SF Par. 20-23). Kodish also admits that on May 5, 2004, he was notified that due to his prolonged absence, pursuant to ...

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