-13-
response that his claim is not merely for a “right to procedure,”
but fails to explain what this statement means or what other right
he had that was protected by the Fourteenth Amendment. We
speculate that he means that he is claiming a property interest in
his job, or the specific position he held as water meter reader,
but as explained supra, he had no protectable right to a particular
job, or even to any job, with the Village. Accordingly,
plaintiff’s § 1983 claim for violation of the Fourteenth Amendment
is dismissed.

4. Separate Counts

Thus, what remains of Count I are the § 1983 claim for
violation of plaintiff's First Amendment rights and the state-law
Employees Political Rights Act claim. Each of these claims should
have been alleged in a separate count. Federal Rule of Civil
Procedure 10(b) states, in pertinent part, that “{eJach claim
founded upon a separate transaction or occurrence . . . shall be
stated in a separate count . . .. whenever a separation facilitates
the clear presentation of the matters set forth.” In keeping with
the rule, the courts have required a separate count for each
distinctive statutory, constitutional, or common law claim. See
Casler vy. Janus, No. 97 C 5049, 1998 WL 151811, at *1 (N.D. Ill.
Mar. 26, 1998). There are two purposes for requiring separate
counts: (1) to give fair notice to the defendants of the claims

against them; and (2) to enable the court to grant relief on an


-4-
physician directed him to take a_leave of absence from his job, and
plaintiff followed this advice.

Plaintiff alleges that defendants did not follow the Village’s
employee performance review and disciplinary procedures set out in
the employee handbook and the rules of the Civil Service Commission
before reassigning him to “less desirable and menial duties” and
forcing him to “engage in duties that he [was not] properly trained
to perform.” (Id., U1 51, 57.) He claims that Mayor Shaw directed
the reassignments in concert with Thomas, and that the remaining
defendants had full knowledge of and acquiesced in _ the
reassignments.

Plaintiff filed this action on August 22, 2002. The complaint
sets forth the following claims: a § 1983 claim for violation of
plaintiff’s First and Fourteenth Amendment rights, and a claim for
violation of the Illinois Local, Governmental Employees Political
Rights Act, 50 ILCS 135/1 et_seq. (Count I); intentional infliction
of emotional distress (Count II); and breach of contract (Count
III). The defendants are sued in both their individual and
official capacities. Plaintiff seeks declaratory and injunctive
relief, compensatory and punitive damages, and attorney’s fees and
costs.

Defendants now move to strike or dismiss, or for a more
definite statement, with respect to various counts of the

complaint.



~9-
Plaintiff argues that we still should not consider the
handbook and rules because “the authenticity and relevance” of
these documents “are in dispute.” (Plaintiff’s Memorandum in
Opposition at 11.) However, plaintiff fails to adequately support
this argument. As to the question of authenticity, attached to
plaintiff’s response is his affidavit stating the following:

4. [DJuring my tenure {with the Village}, the documents
that were shown to me as the Employee handbook and the
“Rules of [sic] Regulations of the Village of Dolton
Civil Service Commission” were NOT the documents
Defendant's [sic] have attached as Exhibits B and C of
their motion to strike and dismiss.

5. I have never seen those documents designated as
Exhibits B and C while employed with the Village of
Dolton.

6. I am not aware of any other individuals employed by
the Village of Dolton that were given Defendants’
Exhibits B and C.

7. That the first time I was presented the documents
designated as Defendants’ Exhibits B and C was when I
reviewed them in connection with the preparation of my
defense to Defendants’ Motion to Strike and Dismiss.

8. That on or about July 26, 2002, I requested a copy
of the Village of Dolton Employee Handbook; my request
was denied.

(Affidavit of Christopher Livingston, 99 4-8.) The problem with
plaintiff's affidavit is that he does not describe how the
documents that were shown to him (by whom, he fails to specify)
differed from the handbook and rules provided by defendants.
Accordingly, we have no basis for concluding that defendants’
exhibits are not authentic. As..for relevance, it is difficult to

understand why plaintiff argues that there is a relevance issue



-6-
change from code pleading also replaced “cause of action”
with “claim for relief.” One pleads a “claim for relief”
by briefly describing the events. At this stage the

plaintiff receives the benefit of imagination, so long as
the hypotheses are consistent with the complaint.

Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40 F.3d
247, 251 (7th Cir. 1994) (citations omitted).

With these principles in mind, we reject defendants’ argument
and hold that plaintiff has sufficiently alleged a violation of his
First Amendment rights. Plaintiff has at least generally alleged
that the defendants demoted or transferred him in retaliation for
his political speech. As the foregoing paragraph makes clear, the
Federal Rules do not require a plaintiff to allege specific facts
which “establish” each element of a claim for relief. Rather, the
complaint need only inform a defendant of the charge against him by
concisely narrating the incident or incidents in question. The
complaint in this case provides adequate notice to the defendants
of the nature of plaintiff’s First Amendment claim. Using the
“imagination” test outlined supra, we can hypothesize facts
consistent with the complaint that would make out a claim for
relief. Therefore, we will deny the motion for a more definite
statement regarding plaintiff's First Amendment claim.

2. State~Law Statutory Claim

Count I also alleges that defendants violated the Illinois
Local Governmental Employees Political Rights Act, 50 ILCS 135/1 et

seq. (the “Employees Political Rights Act”). Defendants argue that



-5-
DISCUSSION

The purpose of a 12(b) (6) motion to dismiss is to test the

sufficiency of the complaint, not to resolve the case on the

merits. 5A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1356, at 294 (2d ed. 1990). Dismissal is

appropriate only if “‘it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations.’” Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.
1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
A. Count TI 1983 and State-Law Statutory Claims

1. § 1983 First Amendment Claim

Count I of the complaint alleges that defendants violated
plaintiff’s First and Fourteenth Amendment rights. As to the First
Amendment claim, defendants acknowledge that the complaint
satisfies federal pleading standards. Nonetheless, defendants
assert that “the complaint is S80 vague and ambiguous that the
Defendants cannot reasonably prepare a response.” (Defendants’
Memorandum at 2-3.) Defendants are basically complaining that
plaintiff failed to allege specific facts which establish the
elements of his First Amendment claim. Under the liberal system of
notice pleading envisioned by Federal Rule of Civil Procedure 8,

complaints need not contain elaborate factual

recitations. They are supposed to be succinct. ... Any

need to plead facts that, if true, establish each element

of a “cause of action” was abolished by the Rules of
Civil Procedure in 1938, which to signify the radical



-~8g-
Service Commission.? Defendants contend that plaintiff has failed
to state a claim for violation of due process because he has not
alleged that he has a protectable interest or entitlement and
therefore deserved due process. Defendants argue that the handbook
and rules specifically state that Village employees are at-will
employees, and thus, plaintiff had no protectable property right in
his job.

We must first address the matter of the employee handbook and
Civil Service Commission rules, which were not attached to the
complaint. Defendants have attached the handbook and rules as
Exhibits B and C to their motion to dismiss. While plaintiff was
under no obligation to attach the handbook and rules to the
complaint (and indeed, he could not if, as he claims, he does not
have copies of them}, documents that a defendant attaches to a
motion to dismiss are considered part of the pleadings if they are
referred to in the plaintiff’s complaint and are central to his

claim. See Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987

F.2d 429, 431-32 (7th Cir. 1993). Plaintiff refers to the handbook
and rules in the complaint, and they are central to his claims.
Therefore, we can consider those documents without converting

defendants’ motion into a motion for summary judgment.

¥ plaintiff alleges that his employment with the Village was “governed”
by the handbook and rules. (Complaint, 9 77.)



‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Ni f Assigned Judge Sitting Judge if Oth«
vor Magistrate Judge John F. Grady ‘han Asigned Judge
CASE NUMBER 02 C 6003 DATE March 18, 2003
CASE ; Livingston v. Village of Dolton
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented. ]

MOTION:

DOCKET ENTRY: ee

qd) a Filed motion of [ use listing in “Motion” box.above.]

(2) Go Brief in support of motion due

(3) Q Answer brief to motion due___._ Reply to_answer brief due___.

(4) - a Ruling/Hearing ons Set for att,

(5) o Status hearing[held/continued to] (set for/re-set for]on__set for at

(6) Qo Pretrial conference{held/continued to] [set.for/re-set for]on ___setfor__at___

(op) a Trial[set for/re-set for] on sat

(8) o [Bench/Jury trial] [Hearing] held/continued to, at.

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).

a0) of [Other docket entry] | Defendants’ motion to strike or dismiss certain allegations of Count I of

the plaintiff's complaint and for a more definite statement as to other allegations in Count I (8-1) and
to dismiss Counts II-III of the complaint (8-2), is granted in part and denied in part. Plaintiff may file
an amended complaint by April 1, 2003.. Defendants may plead to the amended complaint by April
15, 2003. ENTER MEMORANDUM OPINION.

(il) xX [For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court. Document
No notices required. Number
number of notives
X | Notices MAILED by judge's staff. BAR 20 2003

Notified counsel by telephone.
Docketing to mail notices.

Mail AO 450 form

Copy to

date docketed

KAM

courtroom

depu’s | — ae eal
initials Date/time received In d

central Clerk's Office mailing deputy initials

(Reserved for use by the Court)



-11-
requirements are met. First, the language of the handbook or
statement must contain a promise clear enough that an employee
would reasonably believe it to be an offer. Second, it must also
be shown that the employee received the statement, was aware of the
language, and believed it to be an offer. Third, there must be
some act constituting acceptance of the offer, such as commencing
or continuing to work upon learning of the statement. See id.

The employee handbook and Civil Service Commission rules fail
to satisfy even the first prong of the Duldulao test. The employee
handbook states that it “is not a contract, nor is it intended to
create a contract of employment.” (Defendants’ Memorandum, Ex. B,
Village of Dolton Policy and Procedures Manual, at 2.) It further
states:

1.1 Nature of Employment

Employment with the Village is voluntarily entered into,

and the employee is free to resign at will at any time,

with or without cause. Similarly, the Village may

terminate the employment..relationship at will at any

time, with or without notice or cause, so long as there

is no violation of applicable federal or state law.

Policies set forth in this handbook are not intended to

create a contract, nor are they to be construed to

constitute contractual obligations of any kind or a

contract of employment between the Village and any of its

employees. The provisions of the handbook have been

developed at the discretion of management and, except for

its policy of employment-at-will, may be amended or

canceled at any time, at the Village’s sole discretion.

(Id., Ex. B, at 6.) The handbook further provides that “the right

to terminate the employment relationship at will at any time is



- 10 -
regarding the handbook and rules, as they are the crux of
plaintiff’s claims.

We return to the issue of whether plaintiff has alleged a
protectable Fourteenth Amendment property interest in his job. The
Supreme Court instructs us to examine state law to determine
whether “a person’s interest in continued employment qualifies as
a legally-protected property interest.” Border v. City of Crystal

Lake, 75 F.3d 270, 273 (7th Cir. 1996). A property interest ina

job can arise from statute, regulation, ordinance, or an express or
implied contract--those “rules. or understandings that secure
certain benefits and that support claims of entitlement to those
benefits.” Id. Promises made in an employee handbook sometimes

can give rise to a legitimate claim of entitlement sufficient to be

protected as a property interest. See Campbell v. City of
Champaign, 940 F.2d 1111, 1112 (7th Cir. 1991). The critical

question under a due process analysis is whether the employee
handbook or rules can fairly be interpreted as promising plaintiff
that his job was secure provided there was no misconduct. See id.

Because plaintiff was employed in Illinois, we look to
Illinois law to determine whether he had a protectable property
interest in his job. In Duldulao_v. Saint Mary of Nazareth
Hospital Center, 505 N.E.2d 314, 318 (Ill. 1987), the Illinois

Supreme Court held that an employee handbook or other statement

confers contractual rights, but. only if three classic contractual


-7-
the complaint does not satisfy Illinois’ fact pleading requirements
with respect to this claim. However, it is well established that

federal notice pleading requirements are applicable in a federal

case even when the claim pleaded arises under state law. ee Muick
v. Glenayre Blecs., 280 F.3d 741, 743 (7th Cir. 2002). Although

Illinois courts have not construed the Employees Political Rights
Act, the statute provides in relevant part: “(a) No unit of local
government or school district may make or enforce any rule or
ordinance that in any way inhibits or prohibits any of its
employees from exercising the employee’s political rights. (b) No
employee of a unit of local government . .. may (i) use his or her
official position of employment to coerce or inhibit others in the
free exercise of their political rights.” 50 ILCS 135/10. The
facts alleged in plaintiff’s complaint give the defendants adequate
notice of this claim. Therefore, we will also deny the motion for
a more definite statement as to plaintiff’s Employees Political
Rights Act claim.

3. § 1983 Fourteenth Amendment Claim

Plaintiff claims that he was deprived of due process when he
was demoted and forced to perform job duties he was not trained to
perform, without being afforded the disciplinary procedures set

forth in the Village’s employee handbook and rules of the Civil



-3-

In a letter dated July 24, 2002, Thomas advised plaintiff that
he was permanently assigned to the position of clerk in the Village
Collector’s Office, effective immediately. The letter also thanked
plaintiff for completing his “temporary assignment” of
“reorganiz[ing] the records storage facility for compliance with
the Village of Dolton fire ordinances.” (Complaint, Ex. C.)
Plaintiff was given no training in clerical skills or cash
handling, which were necessary skills for the clerk position, nor

was he given a job description. On July 26, plaintiff wrote Thomas

a letter requesting training in cash handling. (Id., Ex. A.)
Thomas directed plaintiff to Judith Evans. (Id., Ex. B.) It is

unclear from the complaint if plaintiff followed up on his request
with Evans, but he alleges that he never received appropriate
training. Many times, plaintiff requested (both orally and in
writing) a copy of the Village’s employee handbook from Brenda
Ferguson, Director of Personnel. Ms. Ferguson told plaintiff that,
while an employee handbook existed, plaintiff could not have a
copy.

In his job as a clerk, plaintiff experienced “hostility and
ridicule” from co-workers, which led to his embarrassment and
humiliation. As a result of this ridicule and his changing job
duties, plaintiff suffered sleeplessness, anxiety, stress, loss of
appetite, depression, and headaches. He sought medical care and

counseling and was diagnosed with clinical depression. Plaintiff’s


~ 14 -
entire count, not just part of. a count. See id. Therefore, we
will dismiss Count I with leave to replead the § 1983 claim and the
state~law claim in separate counts.

B. Count II (Intentional Infliction of Emotional Distress Claim)

Defendants contend that plaintiff fails to state a claim for
intentional infliction of emotional distress. According to
defendants, the complaint does not allege “extreme and outrageous”
conduct; that defendants intended to inflict severe emotional
distress or knew that there was a high probability that their
conduct would do so; or that defendants’ conduct actually caused
severe emotional distress.

We do not agree with defendants regarding plaintiff's
allegations of defendants’ conduct or causation of severe emotional
distress. It does not appear beyond doubt that plaintiff can prove
no set of facts regarding these elements of his claim. He alleges
that defendants transferred or demoted him in retaliation for his
political conduct and speech, and he alleges that defendants’
conduct caused emotional distress. which could be considered severe.
The complaint adequately puts. defendants on notice of these
elements of plaintiff’s claim.!

However, plaintiff wholly fails to allege that defendants

intended to inflict severe emotional distress or knew that there

4 The Seventh Circuit has acknowledged that, under the liberal federal
system of notice pleading, plaintiff. is not obliged to allege every action that
he claims inflicted emotional distress. See Cook v. Winfrey, 141 F.3d 322, 331
(7th Cir. 1998).



2.16 -

Defendants’ motion to dismiss Counts II and IIi of the

complaint is granted. Plaintiff may replead Count II if he can

allege intent.

Plaintiff may file an amended complaint by April 1, 2003.

Defendants may plead to the amended complaint by April 15, 2003.

DATE: March 18, 2003

OO SO
ENTER: key .

John F./Grady, United States Districy Judge



-~2-
Shaw (the incumbent) for the office of state senator of the 15th
Legislative District of Illinois.

The complaint alleges the following facts, which we take as
true for purposes of this motion. The Village hired plaintiff as
a water meter reader in April 2000. Plaintiff was one of two
Village water meter readers, and his supervisor was Judith Evans.
He performed his job in a satisfactory manner. In June 2002,
plaintiff circulated nominating petitions for Reverend James T.
Meeks, plaintiff's pastor, for the office of state senator.!
Plaintiff was the only Village employee who was circulating
petitions for Meeks.

On July 8, 2002, defendant William Thomas informed plaintiff
verbally that he would no longer be a water meter reader.’
Instead, plaintiff was ordered to clean up the basement at Village
Hall. Plaintiff had never before served as anything other than a
meter reader and had never taken direction from or been supervised
by Thomas. Plaintiff was not given an explanation for the abrupt
modification of his duties. For thirteen days, plaintiff cleaned
the basement, which contained clutter, trash, and rodents (both

dead and alive).

V Meeks defeated Shaw in the..election of November 2002. ee Donna

Freedman & Robert L. Kaiser, Fight Ends in Hug, Meeks Win, Chi. Trib., Nov. 6,
2002, at 19.

2 As of that date, plaintiff had seniority over the Village’s other water
meter reader.



02-6003.031-dCD 7 March 18, 2003

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN. _ DIVISION

DOCKETED

CHRISTOPHER LIVINGSTON, MAR 20 2003

Plaintiff,
v. No. 02 C 6003

VILLAGE OF DOLTON, et al.,

Defendants.

MEMORANDUM OPINION

Before the court is defendants’ motion to strike or dismiss
certain allegations of Count I of plaintiff’s complaint, for a more
definite statement as to other allegations of Count I, and to
dismiss Counts II and III of the complaint. For the following
reasons, the motion is granted in part and denied in part.

BACKGROUND

This is a civil rights action by plaintiff Christopher
Livingston, a former employee of the Village of Dolton, Illinois
(the “Village”), against the Village; its mayor, William “Bill”
Shaw; the mayor’s chief of staff, William Thomas; and several
village trustees, James T. Jefferson, Garry M. Lambert, Ronnie C.
Lewis, Willie L. Lowe, and Eva M, Nicholson. Plaintiff claims that
he was demoted and transferred in retaliation for circulating

nominating petitions for a candidate who was running against Mayor



-12-
retained by both the employee and the Village.” (Id., Ex. B, at
14.) At page 47, the handbook also states:

The Village operates under the principle of at-will
employment. This means that neither you nor the Village
has entered into a contract regarding the duration of
your employment. You are free to terminate your
employment with the Village at any time, with or without
reason. Likewise, the Village has the right to terminate
your employment, or otherwise discipline, transfer, or
demote you at any time, with or without reason, at the

discretion of the Village.

(Id., Ex. B, at 47 (emphasis added).) Although the Civil Service
Commission rules do not contain any similar disclaimers, the rules
do not contain any language that could constitute a promise of
employment, much less a clear promise, to an employee. The fact
that both the handbook and the rules set forth progressive
disciplinary procedures does not give rise to a property right
within the meaning of the due process clause. See Campbell, 940
F.2d at 1112-13.

Plaintiff also fails to meet the second and third prongs of
Duldulao. He alleges that he néver received a copy of the handbook
and rules; thus, the requirements that plaintiff received the
statements, was aware of their language, and believed them to be
offers, and commenced or continued work thereafter, are not
satisfied.

For all of these reasons, plaintiff fails to allege a
protectable property interest in his job, and therefore fails to

state a § 1983 Fourteenth Amendment claim. Plaintiff argues in his


- 15 -
was a high probability that their conduct would do so. Even a
bare-bones allegation would suffice, but plaintiff has failed to
include such an allegation. Therefore, Count II is dismissed with
leave to replead if plaintiff can allege intent.

c. Count III (Breach of Contract Claim)

Plaintiff alleges that the Village’s employee handbook and
rules constituted an employment contract and that defendants
breached that contract by demoting and transferring him. For the
reasons stated supra section A.3 of this opinion, it is clear that
the employee handbook and rules did not create an employment

contract. Therefore, Count III must be dismissed.

CONCLUSION

Defendants’ motion to strike or dismiss certain allegations of
Count I of plaintiff's complaint, for a more definite statement as
to other allegations of Count I, and to dismiss Counts II and Ii!
of the complaint is granted in part and denied in part.

Defendants’ motion to strike or dismiss plaintiff’s § 1983
claim for violation of the Fourteenth Amendment is granted.
Defendants’ motion is denied as to the request for a more definite
statement of plaintiff’s § 1983 First Amendment claim and
plaintiff's Employees Political Rights Act claim. However, Count
I is dismissed sua sponte with leave to replead the § 1983 First

Amendment claim and the state-law claim in separate counts.