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Kodish v. Oakbrook Terrace Fire Protection Dist.

May 10, 2010


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 4620-Samuel Der-Yeghiayan, Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.


Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

Illinois law grants a property right in employment to firefighters. They cannot be removed or discharged from employment except for just cause. This right attaches, however, only after a firefighter has held the position for one year or longer. Otherwise, fire districts may terminate their firefighter employees at will. The Oakbrook Terrace Fire Protection District terminated the plaintiff, Brian Kodish, sixteen months after the date he was hired. During four of those sixteen months, however, Kodish was on medical leave due to a work-related injury. On August 12, 2004, after a vote by the Board of the Trustees of the District, the fire chief, Gregory J. Sebesta, met with Kodish and offered him the opportunity to resign lest he be terminated immediately. Kodish signed a letter of resignation. He subsequently sued the District, Chief Sebesta, and the three members of the Board of Trustees of the District-Joe Dragovich, Andy Sarallo, and Donald Ventura-alleging that they violated his due process rights, violated his First Amendment rights by terminating him for engaging in pro-union speech, and wrongfully terminated and defamed him under Illinois state law. The district court granted summary judgment for all defendants on the due process and First Amendment claims and declined to exercise supplemental jurisdiction over the state law claims. Kodish appeals only the federal law claims.


The District hired Kodish as a full-time firefighter/ paramedic on June 2, 2003. After three months of work, he received a mediocre written evaluation, in which he earned a rating of "good" for personal appearance and job knowledge, and "fair" in all other areas-skill level, initiative, quality of work, performance on calls,*fn1 evaluator stated, "I believe Brian will be a good addition to the full time force," signs of trouble were already brewing. Id. The evaluator warned Kodish to focus on his job activities and put aside "administrative functions" for later in the evening. Id. The evaluation noted that these activities were "caus[ing] a disturbance within the shift." Id. This evaluation was also spotted with references to his lack of internal motivation and his need to improve his skills. Id. On his next evaluation, his grades dropped a bit, and he received a "good" grade only for personal appearance; in all other areas he rated only "fair." (R. at 60, Ex. G). Although the narrative described limited improvement in some skills, it noted, once again, that Kodish had a tendency to become distracted by "administrative functions" and duties or and overall impression. (R. at 60, Ex. F). Although the "personal and business issues that [did not] concern" him and that he lacked necessary focus. Id. The second evaluation also criticized his motivation, his communication skills, and his ability to follow authority and accept criticism. Id. The third review, written just one month later, on December 11, 2003, revisited these concerns and concluded that Kodish's "continued employment with the District is being questioned." (R. at 60, Ex. H).

Later in December, Kodish injured his knee in a work-related incident and when that injury required surgery, he went on medical leave from March 21 to July 24, 2004-a period of approximately four months. One month before going on leave, Kodish received a formal reprimand for failing to properly shut down a medical vehicle. Three days before going on leave, Kodish received his fourth and final evaluation. In it his grade for quality of work went from "fair" to "good" but the comment noted he lacked initiative and would "only do what he is told and no more." (R. at 60, Ex. I). Although the evaluation noted improvements in several areas, it repeatedly criticized Kodish's lack of initiative. Id. His job knowledge still rated "below average" and he had "not demonstrated any initiative to improve upon these identified deficiencies." Id. The review again noted that Kodish was outspoken, and that he needed "to learn how to respect his co-workers and [s]upervisors." Id. On the upside, the evaluation acknowledged that Kodish's overall performance had improved and that he had the potential to be a valued employee "if he would choose to do so." Id. As with the previous three evaluations, Kodish left the "employee's comments" section of the form blank.

Several weeks into Kodish's leave, on May 5, 2004, the District sent him a letter notifiying him that it was ex-tending his probationary period pursuant to the District's Wage and Benefit Policy which purported to allow such extensions. That policy stated:

All new employees... shall be considered probation-ary 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. In such event, the employee's probationary period may be extended for an additional period sufficient to make up for the lost work time but not to exceed ninety (90) calendar days. During an employee's probationary period the employee may be suspended or terminated at the sole discretion of the employer.

Oakbrook Terrace Fire Protection District Employee Wage and Benefit Policy for Full-Time Commissioned Employees, 2003-2004, Article I, Sec. 2. (R. at 60, Ex. B, p. 1).

According to the letter, the District opted to extend his probationary period "until such time as a complete twelve (12) month probationary period, excluding the period of absence, has been successfully completed." (R. at 60, Ex. P). The District did not announce a date, but according to the policy cited, Kodish's probationary period could have been extended by ninety days and thus his probationary period would have terminated sometime on or around August 31, 2004.*fn2

On August 11, the Board members discussed Brian Kodish in a closed session meeting. The tenor of the discussion, which we set forth more fully in section II., B., was that Kodish was capable of performing the work of a firefighter, but that his attitude, opinions, and inter-personal conflicts were disruptive to the fire department. Kodish interprets the complaints about these latter factors to be indications that the Board members voted to terminate his employment due to his pro-union views- a claim we will investigate in more detail below.

One day later, on August 12, 2004, Chief Sebesta handed Kodish a letter of resignation and informed him that he could resign or be terminated immediately.

According to Kodish, Chief Sebesta announced that Kodish had taken a day of sick leave to which he had not been entitled. Kodish also alleges that Sebesta cajoled him into signing the letter by offering to pay his insurance for the rest of the year and by telling him that he otherwise would not receive unemployment benefits-assertions Kodish maintains are false.

Kodish signed the resignation letter and later sued the District in the federal court below, alleging that the District violated his federal due process rights by terminating him without due process in violation of 42 U.S.C. § 1983, that he was fired for his unionizing activity in violation of his First Amendment rights, and that the defendants violated state law in two other claims that Kodish has not appealed to this court. The district court concluded that Kodish was a probationary employee without a protectable property interest in his employment, and that no reasonable trier of fact could conclude that Chief Sebesta exhibited anti-union views at the closed session or that the defendants terminated Kodish's employment because of his alleged pro-union views. Consequently, the district court granted summary judgment for the defendants, a decision which we review de novo. Brunker v. Schwan's Home Serv., Inc., 583 F.3d 1004, 1007 (7th Cir. 2009).



To establish a federal due process claim, Kodish must demonstrate that he had a legitimate expectation of continued employment with the District which was bestowed upon him either by a statute or by specific contractual language that limited the discretion of the District to discharge him. Casna v. City of Loves Park, 574 F.3d 420, 424 (7th Cir. 2009). State law defines the property interest, and federal law defines the process that is due. Goros v. County of Cook, 489 F.3d 857, 859 (7th Cir. 2007). In this case, the Illinois Fire Protection Act (the Act) contains language that limits the discretion of the District to discharge its employees, and thus defines a property interest. The question in this case, however, is whether that language applies to Kodish.

The District and Trustees assert that this court must consider not only the Act, but also the Illinois Municipal Code (the Code), and the District's policies in assessing Kodish's due process claim. Whatever the District's own policy may announce about probationary periods, the District's policy is just that-its own policy, and, if in violation of Illinois law, it holds no force. And because, in cases of conflict, the Act takes precedence over the Illinois Municipal Code (see 70 ILCS § 705/16.01), the logical place to begin our analysis is with the Act.

That Act undoubtedly creates a property interest in continuing employment except in cases where an employer has just cause for termination. 70 ILCS § 705/16.13b. It grants that interest, however, only to those who have "held that position for one year." Id. Prior to that time, firefighters can be fired at will. The Act does not use the word "probationary" in describing the time period-only the phrase "held that position for a year"-although the term "probationary employee" appears to be part of the normal parlance in the firefighting community and does appear elsewhere in the Act.*fn3

No one disputes that at the time Kodish was hired, on June 2, 2003, he was an at-will employee and the Board of Trustees could have terminated his employment without just cause (provided, of course, that the reasons for termination were not otherwise illegal). The initial dispute in this case centers on whether or when he obtained the property interest in employment afforded by the Act. Ordinarily, the calculation would be simple. The Act grants an interest for employees who have "held that position for one year." 70 ILCS § 705/16.13b. According to Kodish, as of June 2, 2004, he had held his position for one year as required by the Act, and could no longer be terminated at will. But the facts here are not so simple. Although Kodish was hired on June 2, 2003, he was on leave for a work-related injury from March 21 to July 24, 2004-a period of approximately four months. In short, Kodish's due process claim turns entirely on what it means to "hold a position" as a firefighter. Does holding a position require that a person actually perform the duties of that position uninterrupted (or at least not interrupted for a period of four months), or does it merely require that one possess or occupy the position, as the plain language might suggest?*fn4 There are no Illinois cases that have directly interpreted the "held that position" language of this Act. Consequently, the defendants urge us to look at the policy considerations that underlie an interpretation of "hold that position" as either performing the functions of the job for twelve months or having been hired for the position more than twelve months before.

The "performs the job" interpretation has much to commend it. After all, the purpose of the trial period is to judge firefighters on their mettle in the line of duty rather than simply on a series of examinations prior ...

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