Opinion
No. 98-C-2847
February 9, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Prem Lalvani ("Lalvani") has sued Cook County and Robert Coleman ("Coleman") for (1) retaliatory discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); (2) intentional discrimination based on race, color, and national origin under Title VII; (3) violation of 42 U.S.C. § 1981 ("section 1981"); (4) violations of 42 U.S.C. § 1983 ("section 1983"); and (5) violations of Illinois statutes. Before the Court are defendants' motion for summary judgment on all claims and Lalvani's cross-motion for summary judgment on his section 1983 and state law claims. For the reasons provided in this Memorandum Opinion and Order, the Court: (1) grants defendants' motion as to Lalvani's claims based on federal law, (2) denies Lalvani's cross-motion for summary judgment on his section 1983 claims; (3) declines to exercise jurisdiction over all remaining state law claims, and (4) terminates this case.
Lalvani alleges in the Amended Complaint that defendants' retaliation violates 29 U.S.C. § 623 (a), which is a provision of the Age Discrimination in Employment Act ("ADEA"). However, it is clear from the briefing that Lalvani alleges retaliation in violation of Title VII, not the ADEA. ( See Pl.'s Mem. Opp. Defs.' Mot. Summ. J at 3.)
FACTS
The following facts are either undisputed or deemed admitted because the party's response did not refute the other party's statement of fact and/or was unsupported by a citation to the record as required by the Local General Rule 12(M) and 12 (N), which this Court strictly enforces. Since the filing of the parties' briefs on their motions, Local General Rule 12(M) and 12(N) have been retitled LR 56.1(a) and LR 56.1(b). In this Memorandum Opinion and Order, however, the Court will use the old numbering system in order to make it clear as to which briefs the Court is referring.
On October 24, 1966, Cook County hired Lalvani as a Medical Social Worker II for the Department of Social Work (the "department") at Cook County Hospital. (Defs.' Local Rule 12(M) Stmt. of Uncontested Material Facts ("Defs.' 12(M)") ¶ 1.) Lalvani became a Medical Social Worker IV in 1973. ( Id. ¶ 8.) In September 1989, Lalvani filed an internal grievance alleging that the panel of interviewers that denied his promotion to a Social Worker V position was "improper and biased." (Pl.'s 12(N) Stmt. of Material Facts in Opp. to Defs.' Mot. Summ. J. ("Pl.'s 12(N)") ¶ 5.)
At one time, the Department of Social Work had been divided into six divisions and was staffed by approximately fifty-five social workers. (Defs.' 12(M) ¶ 2.) Over time, the department's budget has been reduced, which has resulted in substantial staff reductions. ( Id. ¶ 3.)
In 1996, Coleman, Director of the Social Work Department, was responsible for preparing a proposal which would allow the department to meet the needs of the patients and operate within the financial constraints of the 1997 budget reduction. ( Id. ¶ 11.) Because staff salaries represented 80 to 90% of the cost of operating the department, Coleman recommended that two Medical Social Worker IV positions, filled by Lalvani and Marcia Saliga ("Saliga"), as well as a vacant Administrative Assistant IV position be deleted and that a new Assistant Director position be created to take the place of the three deleted positions. ( Id. ¶¶ 10, 12.) Lalvani and Saliga were two of 500 of Cook County Hospital employees who were laid off pursuant to the reduction in force. (Defs.' 12(N) Resp. ¶ 12.)
On May 27, 1997, Lalvani filed a charge of discrimination on the basis of retaliation with the Illinois Department of Human Rights ("IDHR"). (Defs.' 12(M) ¶ 21.) Lalvani cross-filed his charge with the Equal Opportunity Commission ("EEOC"). ( Id.) On February 6, 1998, the EEOC issued a right to sue letter regarding Lalvani's charge. ( Id. at ¶ 22.) On May 8, 1998, Lalvani filed the Complaint in the instant suit alleging retaliation in violation of Title VII as well as state law claims. ( Id. at ¶ 23.) On September 15, 1998, Lalvani filed an Amended Complaint, which added claims of intentional discrimination in violation of Title VII and section 1981 and deprivation of rights in violation of section 1983. ( Id.)
DISCUSSION
Federal Rule of Civil Procedure ("Rule") 56(c) allows the Court to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In considering the evidence submitted by the parties, we do not weigh it or determine the truth of asserted matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We "must view the facts, and all reasonable inferences drawn therefrom, in a light most favorable to the nonmoving party." Baron v. City of Highland Park, 195 F.3d 333, 337 (7th Cir. 1999). If a reasonable jury could not find for the party opposing the motion, it must be granted. Seshadri v. Kasraian, 130 F.3d 798, 804 (7th Cir. 1995).
I. Title VII Claims
As an initial matter, the Court grants the summary judgment motion with regard to Lalvani's Title VII claims against Coleman. A supervisor sued in his individual capacity is not an "employer" as defined by Title VII. Williams v. Banning, 72 F.3d 552, 553 (7th Cir. 1995). Because Lalvani has sued Coleman in his individual capacity and Coleman is merely a supervisor, he is not subject to liability under Title VII. Thus, Cook County remains as the sole defendant as to Lalvani's Title VII claims.
A. Retaliation
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3 (a). To establish a prima facie case of retaliation under Title VII, a plaintiff must show that he (1) "engaged in statutorily protected expression;" (2) "suffered an adverse action by h[is] employer;" and (3) "there is a causal link between h[is] protected expression and the adverse action." Sweeney v. West, 149 F.3d 550, 555 (7th Cir. 1998).
The first two elements are undisputed. In September 1989, Lalvani filed an internal grievance protesting an "improper and biased panel of interviewers" which he alleged resulted in the denial of his promotion to a Social Worker V position. (Pl.'s 12 (N) ¶ 5; see Defs.' Am. Mem. Law Support Mot. Summ. J. at 4.) In December 1996, Cook County terminated Lalvani's employment. (Defs.' 12(M) ¶ 17.) Thus, the Court focuses on the third element, whether plaintiff has shown a causal link between Lalvani's protected expression and his termination.
With regard to the determination of a causal link, "[t]he obvious place to start is the temporal sequence between the two; oftentimes it is unnecessary to look any further." Sweeney, 149 F.3d at 557. A lengthy period of time between a plaintiffs protected expression and the adverse action "discount[s] the causal connection between the two events." Samuelson v. Durkee/French/Airwick, 976 F.2d 1111, 1115 (7th Cir. 1992). In this case, Lalvani filed an internal grievance in 1989, seven years before Cook County terminated him in December 1996. Such a monumental gap in the temporal sequence seriously dissuades the Court from finding a causal link between the two events.
Lalvani tries to cure this gaping chasm of time by pointing to an alleged retaliatory event that occurred much closer to the date of his protected expression. Lalvani attempts to base his retaliation claim in part on the allegation that, after he filed the internal grievance in September 1989, defendant removed Lalvani from his office in November 1989 and placed his desk next to copy machines and boxes. (Pl.'s 12(N) ¶¶ 6-7.) Before addressing this claim, the Court must first determine whether such a complaint is timely. The Court finds that it is not.
In Illinois, a complainant is required to file a charge of discrimination within 300 days of the occurrence of the event that forms the basis of the Title VII claim. 42 U.S.C. § 2000e-5 (e); Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir. 1995). "Failure to do so renders the complaint untimely." Koelsch, 46 F.3d at 707. However, "[t]he continuing violation doctrine allows a plaintiff to base a claim on a time-barred act by linking the time-barred act with an act that is within the limitations period." Duhart v. Fry, 957 F. Supp. 1478, 1483 (N.D. Ill. 1997). A court looks to whether the alleged acts are "related closely enough to constitute a continuing violation" or whether they are "merely discrete, isolated, and completed acts which must be regarded as individual violations." Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992) (internal quotations omitted). A court looks to three factors to determine whether the acts are closely related: (1) subject matter: (2) frequency; and (3) degree of permanence. Id.
First, defendant's reassignment of Lalvani to a desk space and termination of his employment are both alleged to have been in retaliation for the same act, i.e., his filing of the same discrimination charges. Thus, the subject matter is the same and the requirements of the first factor appear to be met. The second factor, frequency, however, poses a problem. There were only two alleged retaliatory acts and over seven years passed between the occurrence of the first and the second. This weighs heavily against a finding of a continuing violation. The third factor is permanency, i.e., does the complained of act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights? We are justified in treating a series of separate violations as a continuing violation in the context of alleged discrimination only if it appears that the plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory treatment. Selan v. Kiley, 969 F.2d 560, 565-566 (7th Cir. 1992). The fact that Lalvani was removed from his office and permanently reassigned to a desk amongst boxes and copier machines after November 1989 should have alerted Lalvani that it would not have been unreasonable to require him to sue separately for defendant's conduct. After all, a court will not find a continuing violation "if the plaintiff knew, or with the exercise of reasonable care would have known after each act that it was discriminatory and had harmed h[im]." Jones v. Merchants Nat'l Bank Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994) (internal quotations omitted). The Court thus finds Lalvani is time-barred from basing his retaliation claim on the defendant's conduct occurring in November 1989. Not only is this incident barred from constituting an adverse action which forms as a basis for his retaliation claim, it also fails, because of remoteness, to provide any proof of retaliatory motive for the plaintiffs layoff in November 1989.
Even if we were to consider the adverse reassignment to a less desirable work space in November of 1989, not as an independent basis for a claim of discrimination, but merely as circumstantial evidence of defendant's motivation, this act alone fails to establish a causal link between the plaintiffs alleged protected expression and his ultimate termination some seven years later. This fact alone is insufficient to establish a genuine issue as to the essential element of causation. No reasonable juror would conclude from these facts alone that it was more probably true than not that the reason for plaintiffs discharge in 1996 was his discrimination complaint in 1989.
Lastly, Lalvani opines that the following disputed statement of fact requires the Court to deny defendants' motion for summary judgment: "Robert Coleman, director of the Department of Social Work, told Marcia Saliga, one of the social workers eliminated with Plaintiff, that the reduction in force and re-alignment was simply a device to get rid of Plaintiff." (Pl.'s 12(N) at ¶ 3.) The Court disagrees. This statement is insufficient, even when viewed in light of all of the evidence and drawing all inferences in favor of Lalvani, which we must, to support a reasonable inference that defendant's action against Lalvani was motivated by its desire to retaliate against Lalvani for filing an internal grievance in 1989. At most the statement establishes, if proved, that Coleman was looking to get rid of the plaintiff. It fails to suggest any motive. In fact, the statement fails to shed any light on the existence of an impermissible animus. As such, the statement does not prevent the Court from granting the motion for summary judgment on Lalvani's retaliation claim.
In sum, there is no genuine issue as to any material fact with regard to a causal link between Lalvani's filing of an internal grievance in 1989 and his termination in 1996. The Court therefore grants defendants' motion for summary judgment as to Count I.
B. Disparate Treatment
Defendants argue that summary judgment must be granted as to Lalvani's disparate treatment claim based on race, color, and national origin because such a claim is beyond the scope of her EEOC charge. The Court agrees.
"[A] Title VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge." Cheek v. Western S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). However, a plaintiff may assert a claim that is "like or reasonably related" to the charge's allegations or grows out of the allegations. Rush v. McDonald's Corp., 966 F.2d 1104, 1111 (7th Cir. 1992). "Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985).
Even when read liberally, Lalvani's EEOC charge solely alleges retaliation. He now attempts to bring a disparate treatment claim based on race, color, and national origin discrimination. This he cannot do. "[R]etaliation and discrimination are separate and distinct wrongs. Indeed, the very gist of a retaliatory harassment actions is that the employer has "lashed out' against an employee for filing discrimination charges, not out of animosity for the employee's race or national origin." Nair v. Bank of Am. Illinois, No. 95 C 6181, 1997 WL 827394, at * 11 (N.D. Ill. Nov. 19, 1997); see Washington v. Jenny Craig Weight Loss Centres, Inc., 3 F. Supp.2d 941, 950 (1998) (finding claim based on race discrimination was not reasonably related to the allegations of retaliation in plaintiffs EEOC charge). Cf. Noreuil v. Peabody Coal Co., 96 F.3d 254, 257 (7th Cir. 1996) (stating that "retaliation and age discrimination claims are sufficiently dissimilar that an administrative charge of one fails to support a subsequent civil suit for the other"). Because Lalvani's retaliation claim in his EEOC charge does not encompass the discriminatory animus alleged in his disparate treatment claim in this case, the Court finds the two claims are not reasonably related and do not grow out of the same allegations. Therefore, the Court grants defendants' motion for summary judgment as to Lalvani's Title VII disparate treatment claim.
Lalvani's EEOC charge, filed on May 27, 1997, included the following allegations in their entirety: (1) "Discharged on December 6, 1996, in retaliation for having filed a charge of discrimination against respondent;" (2) "On March 6, 1990, Respondent was served notice of charge #1990CA2502 that I filed with the Department of Human Rights;" (3) "I had at all time during my employment with Respondent performed my job duties as a divisional director satisfactorily since my hire on October 24, 1966;" (4) "On December 6, 1996, I was discharged. The reason given by Robert Coleman, Director, for the discharge, was a reduction in work force;" (5) "The discharged [sic], followed my filing a charge of discrimination against Respondent, thus, raising the inference of retaliatory motivation." (Defs.' 12(M), Ex. G, Charge of Discrimination of 5/27/97.)
Even if the Court were to find that Lalvani's disparate treatment claim were within the scope of his EEOC charge, the Court would grant summary judgment as to this claim on the merits because Lalvani has failed to establish a prima facie case of discrimination as discussed below. See Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940 (7th Cir. 1996) ("Although section 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical.")
II. Section 1981
First, Lalvani is time-barred from basing his section 1981 claim on certain of defendants' alleged conduct. A two-year statute of limitations period applies to section 1981 claims. Vore v. Indiana Bell Tel. Co., Inc., 32 F.3d 1161, 1162 (7th Cir. 1994). On May 8, 1998, Lalvani filed the Complaint in the instant case that alleged violations of Title VII and state law. On September 15, 1998, he filed an Amended Complaint that added claims based on sections 1981 and 1983. No matter which date the Court uses as the filing date for statute of limitations purposes, Lalvani is time-barred from alleging defendants violated section 1981 when they (1) failed to promote him in 1989, (2) failed to appoint Asian employees to selection committees that decided promotions in 1989, (3) employed 10 Asians out of 54 department employees in 1989 while employing 3 Asians out of 33 department employees in 1995, and (4) reassigned him to a desk next to boxes and copier machines in 1989. ( See Pl.'s 12(N) ¶¶ 5, 6, 7, 14, 15.)
Second, defendants' argument that Coleman is entitled to qualified immunity as to Lalvani's section 1981 claim may be disposed of without much discussion. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Lalvani alleges defendants' terminating him violated his right to be free of race discrimination, a right that was clearly established when defendants terminated him in 1997. See Williams v. Williams Elecs., Inc., 856 F.2d 920, 922-23 (7th Cir. 1988). Therefore, the Court rejects outright defendants' argument.
Third, the Court finds that there is no genuine issue of material fact as to whether Cook County had a discriminatory custom or policy in relation to his section 1981 claim. A plaintiff may not recover against a government entity under section 1981 based on a respondeat superior theory. See Smith v. Chicago School Reform Bd. of Trustees, 165 F.3d 1142, 1148 (7th Cir. 1999). A plaintiff is required to establish that the government entity had an official policy or custom that was discriminatory. Id., 165 F.3d at 1148. All of the alleged racially discriminatory customs or policies presented in Lalvani's 12(N) Statement occurred between 1989 and 1995 and, as discussed above, Lalvani is time-barred from bringing such claims. Therefore, the Court grants defendants' motion for summary judgment as to Lalvani's section 1981 claims against Cook County.
Even if the Court were to find that such allegations of discriminatory policies and customs were not time-barred, the Court would still grant defendants' motion for summary judgment as to Lalvani's section 1981 and 1983 claims against Cook County on the merits for the reasons provided below.
Section 1981 proscribes discrimination based on race and ethnicity in the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981 (a)-(b). "A plaintiff bringing suit under section 1981 . . . can meet his burden of proof for establishing intentional discrimination either through direct proof of discriminatory intent, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), or through the indirect, burden-shifting method of proof first elaborated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 668 (1973)." Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir. 1993).
Lalvani proffers Ms. Saliga's statement that Coleman told her "the reduction in force and re-alignment was simply a device to get rid of Plaintiff' as direct evidence of discrimination. (Pl.'s 12(N) at ¶ 3.) As discussed above when addressing Lalvani's Title VII retaliation claim, this statement by itself fails to raise a reasonable inference that defendant's termination of Lalvani was motivated by an impermissible animus, including a racially discriminatory one. Therefore, Lalvani must utilize the burden-shifting analysis of McDonnell Douglas.
In the reduction in force context, in order to establish a prima facie case, Lalvani must show that: (1) he was a member of the protected class; (2) he was qualified for the position; (3) he was discharged; and (4) that other similarly situated employees, who were not members of the plaintiffs protected class, were treated more favorably. Bellaver v. Quanex Corp., No. 98-3708, 2000 WL 30070, at *7 (7th Cir. Jan. 18, 2000). Lalvani has established the first and third factors of the prima facie case. He is an Asian Indian and was terminated. (Pl.'s 12(N) ¶¶ 1; Defs.' 12(M) ¶ 17.) Further, with regard to the second factor, defendants aver that Lalvani was terminated pursuant to a budget reduction, and thus plaintiffs qualifications for the position were not at issue. (Defs.' Am. Mem. Law Supp. Mot. Summ. J. at 6.) As for the fourth factor, however, Lalvani has failed to show that any other similarly situated employee, who was not a member of a protected class, was treated more favorably. Instead of making the requisite showing, Lalvani merely opines that the department's termination of a Caucasian employee in addition to him as part of the reduction in force was itself a pretext for defendants' discrimination. Unfortunately for Lalvani, he has, so to speak, "jumped the gun." When applying McDonnell Douglas in a case such as this, a plaintiff does not even proceed to the "pretext" part of the analysis if he has not first established a prima facie case, and Lalvani has cited no controlling authority for the proposition that he is not required to do so. Therefore, because Lalvani has failed to establish a prima facie case of discrimination, the Court grants defendants' summary judgment motion with regard to Lalvani's section 1981 claim.
III. Section 1983
Section 1983 "creates a federal cause of action for `the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and the laws of the United States.'" Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Livadas v. Bradshaw, 512 U.S. 107, 132 (1994)). "Section 1983 is not itself a source of substantive rights; instead it is a means for vindicating federal rights conferred elsewhere." Id.
First, Lalvani avers that he was terminated from his position without procedural due process. "Procedural due process claims require a two-step analysis. At the outset, we determine whether the plaintiff was deprived of a constitutionally-protected interest in life, liberty, or property. If so, we then consider what process was due." Id. (citations omitted). "To have a property interest in public employment, a person must have more than a unilateral expectation of continuing in the job, he or she must have "a legitimate claim of entitlement' to the job." McMillian v. Svetanoff, 878 F.2d 186, 191 (7th Cir. 1989) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). This legitimate claim of entitlement is "defined by existing rules or understandings that stem from an independent source such as state law." Roth, 408 U.S. at 577.
Defendants again argue that Lalvani has failed to show a custom or policy as required to establish a section 1983 claim against a government entity. McNabola v. Chicago Transit Auth., 10 F.3d 501, 509 (7th Cir. 1993). We disagree. With regard to his section 1983 claim, the defendants' defense is that they acted pursuant to state law, which did not require the procedural protections Lalvani believes he should have been afforded. Thus, the Court finds that the alleged injury was the result of an official policy or custom, i.e., the policy of following state law. See Golbeck v. City of Chicago, 782 F. Supp. 381, 384 (N.D. Ill. 1992).
Lalvani argues that Carston v. County of Cook is dispositive of the issue of whether he has a property interest in his continued employment. 962 F.2d 749 (7th Cir. 1992). In Carston, hospital security officers, who had achieved career status under the rules of the Health and Hospital Governing Commission ("HHGC"), were later reclassified by Cook County (when it replaced the HHGC) in 1983 as temporary employees and required to take, pass, and score highly enough on an examination or be terminated. Id. at 750-51. The Seventh Circuit held that "the HHGC merit system, which gave ["career status" employees] . . . the right not to be discharged but for cause, established a protectible property interest in continued employment, which is protected by the due process clause." Id. at 752.
However, the deprivation of property right in Carson occurred before January 1, 1990, the date upon which the Illinois statute which governs the layoffs of Cook County employees became effective. See 55 ILL. COMP. STAT. 5/3-14024 ("section 3-14024"). Therefore, the Carston court did not address whether section 3-14024 created a property right. Section 3-14024 provides: "Whenever it becomes necessary through lack of work or funds, or whenever a position is abolished and the number of employees in a department must be reduced, the employee shall first be laid off who has the lowest seniority in the grade and department in which the reduction is to be made. . . ." 55 ILL. COMP. STAT. 5/3-14024. It can be argued then that Illinois law does not create a legitimate claim of entitlement to continuing employment because section 3-14024 provides that Cook County employees could be laid off for reasons other than cause. On the other hand, it is possible that 55 ILL. COMP. STAT. 5/3-14024 itself creates certain property interests in continued employment for the propriety of a layoff or discharge would now depend on whether it has becomes necessary through lack of work or funds to reduce the number of employees or abolish plaintiff's position. In addition, plaintiff may be protected from discharge by his seniority status. However, the Court need not reach the issue of whether section 3-14024 creates a property interest, because, even if it does, the Court finds that Lalvani received all the process he was due.
"[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The court balances three factors outlined in Mathews to determine what protections are necessary:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.Id. at 335. "[Olnce an employee has established the existence of a property interest, the employee ordinarily has the right to notice and a reasonable opportunity to respond prior to termination." Chaney v. Suburban Bus Div. of Reg'l Trans. Auth., 52 F.3d 623, 628 (7th Cir. 1995).
Lalvani's argues that he "did not receive due process or any process" and that his "protected property interest was not acknowledged in any way." (Pl.'s Mem. Law Supp. Pl.'s Mot. Summ. J. at 3.) The Court strongly disagrees. It is undisputed that Lalvani was given notice in a letter from Barbara Penn ("Penn"), Human Resources Director, dated December 7, 1996 that he was to be terminated effective December 21, 1996. (Defs.' 12(M) ¶ 17.) This letter informed Lalvani that he could direct questions, including those regarding reinstatement, to the human resource department of either the hospital or Cook County. ( Id., Ex. B, Letter of 12/7/96.) It is also undisputed that after Lalvani was notified of his termination, he availed himself of the opportunity to respond in a letter dated December 13, 1996 in which he asked whether he had the option to "bump" the next lower grade person and, pursuant to his lawyer's advice, whether there were any other administrative remedies that he was required to exhaust prior to proceeding with further action. ( Id. ¶ 19; id., Ex. D, Letter of 12/13/96.) Penn responded in a letter dated 12/23/96. ( Id. ¶ 20; id., Ex. B, Letter of 12/23/96.) The record shows no further communication between Lalvani and defendants.
Lalvani complains, however, that as a career status employee who has been laid off, he must be afforded a hearing, citing Altman v. Health Hosp. Governing Comm'n, 91 Ill. App.3d 498, 414 N.E.2d 1091, 46 Ill. Dec 938 (1st Dist. 1980), and Schioniger v. County of Cook, 116 Ill. App.3d 895, 452 N.E.2d 783, 72 Ill. Dec. 530 (1st Dist. 1983). Neither of these cases stand for that proposition. Although the plaintiff in Schioniger and some of the plaintiffs in Altman had received hearings after their layoffs, neither court addressed whether a hearing was required to comply with due process. In fact, the Schioniger court recognized the flexibility of due process and stated that "its requirements vary with the circumstances to which it is applied . . . because no particular mode of procedure is mandated." 116 Ill. App.3d at 898, 452 N.E.2d at 786, 72 Ill. Dec. at 533.
Lalvani also appears to complain that he was deprived of state-created procedures such as recall and recognition of his seniority status. (Pl.'s Mem. Law Supp. Pl.'s Mot. Summ. J. at 3.) The Court notes that "a procedural due process claim must be based on the denial of constitutionally-defined procedural protections with respect to deprivation of a state-created property or liberty interest; a claim of denial of a state-created procedure does not state a federal constitutional claim." Noland v. Wheatley, 835 F. Supp. 476, 487 (N.D. Ind. 1993).
In Altman, some of the eighty-three plaintiffs, who had been laid off by Cook County due to lack of funds, requested and were given hearings to contest the procedures used in their layoffs, and later, all of the plaintiffs alleged that they were denied due process because the scope of those plaintiffs' hearings did not include an inquiry regarding the justification for the layoffs. The Altman court held that the plaintiffs' due process rights had not been violated because they were entitled to no more that "an opportunity to challenge the procedure governing their layoffs." 91 Ill. App.3d at 504, 414 N.E.2d at 1096, 46 Ill. Dec at 943. Similarly, in Schioniger, the court held that Cook County had not violated the due process rights of a plaintiff, who was laid off and later complained that he should have only been discharged for cause and on written charges, where he was provided a full evidentiary hearing. 116 Ill. App.3d at 898, 452 N.E.2d at 786, 72 Ill. Dec. at 533.
Applying the standard of Mathews, the Court finds that due process does not require giving Lalvani any additional procedural protections in relation to his being laid off by Cook County. First, we agree that Lalvani has a significant private interest in avoiding his layoff. However, Lalvani (1) was given notice in the December 7 letter that he was being laid off due to lack of funds and (2) was afforded a reasonable opportunity to respond prior to the effective date of his layoff and, in fact, availed himself of the opportunity. The circumstances before us are quite different from an alleged cause based dismissal which is disputed. It may be that in such a case, where the key issue is fact intensive and ascertainable mainly from the testimony of various witnesses as to what they saw or heard, i.e., what the plaintiff actually did or did not do, a hearing will be required. But we are not presented with such a problem. The claim is that plaintiff was laid off due to lack of funds, not discharged for cause. This is an administrative budgetary question, not nearly so fact intensive in the sense that occurrence witnesses will provide the basis, or lack of it, for the discharge. Thus, an actual hearing is not pivotal. There is a much smaller likelihood of a mistake in fact finding which will result in an erroneous deprivation of the plaintiffs property interest in the situation before us. The case for the lack of funds requiring a layoff should, in most cases, be ascertainable from the county records. A hearing is not necessary to present such evidence. Cook County's interest in efficiently carrying out its fiscal, administrative, and healthcare responsibilities outweighs Lalvani's interest in additional procedural protections under the circumstances in the record before us. Thus, we find that Cook County gave Lalvani all the procedural process that was constitutionally required.
Second, Lalvani argues that defendants have violated his equal protection rights. The following is Lalvani's entire argument regarding defendants' alleged violation:
County has employees who upon being laid off are accorded special rights in accordance with County's Civil Service System or collective bargaining agreements. County recognized these protected property rights but does not recognize the rights of those such as Lalvani who acquired their protected property interest while employed by the Health and Hospitals Governing Commission. This fails to give those employees equal protection of law."
(Pl.'s Mem. Law Supp. Pl.'s Mot. Summ. J. at 3-4.) Lalvani appears to allege that his equal protection rights have been violated because Cook County treats some employees who, like Lalvani, acquired their property interest while employed by HHGC differently than those who are subject to a collective bargaining agreement ("CBA") or another arrangement under the Civil Service System. Lalvani's argument is cryptic at best and he provides no factual support for his allegation in either his brief or statement of facts, which alone justifies the Court's granting of defendants' summary judgment motion as to his equal protection claim. However, the Court has gleaned from the defendants' response to Lalvani's motion that some employees whose positions are subject to a CBA are given "bumping" rights as to the next lower grade and recall rights, while others who are not subject to a CBA do not enjoy such rights. ( See Defs.' 12(N), Ex. B, Letter of 12/23/96.) Thus, to the extent that the Court finds that Cook County in a reduction in force context treats those employees subject to a CBA differently than those who are not, the Court addresses the merits of Lalvani's claim.
A classification "that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Communication, Inc., 508 U.S. 307, 313 (1993). The classification of which Lalvani complains is not suspect. Cf. Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41 (1985) (stating classifications based on race, national origin, or alien status receive "strict scrutiny" and classifications based on gender or illegitimacy receive "heightened review"). Further, as discussed above, the Court has found that the classification does not infringe upon Lalvani's Fourteenth Amendment right to due process. Moreover, there is an obvious, rational reason why Cook County treats the two classes differently. Some job positions involve union representation and thus the terms regarding layoff for employees in those positions are negotiated in CBAs. For fiscal reasons, Cook County does not apply the terms of the CBAs to all of its employees. Therefore, the Court grants defendants' summary judgment motion as to Lalvani's equal protection claim.
CONCLUSION
For the foregoing reasons, the Court: (1) grants defendants' motion for summary judgment as to Lalvani's Title VII claims of retaliation (Count I) and disparate treatment (Count II), section 1981 claim (Count III), and section 1983 claims (Counts IV and V) and (2) denies Lalvani's motion for partial summary judgment as to his section 1983 claims. Pursuant to 28 U.S.C. § 1367 (c)(3), the Court, having dismissed all claims over which it has original jurisdiction, in its discretion declines to exercise supplemental jurisdiction over Lalvani's state law claims (Counts VI-VIII), and hereby terminates this case. This is a final and appealable order.