Estate of Strocchia v. City of Chicago

FIFTH DIVISION

November , 1996

No. 1-94-2439

ESTATE OF RALPH STROCCHIA, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County

)

v. )

)

THE CITY OF CHICAGO, ) No. 88 L 7762

LEROY MARTIN, SUPERINTENDENT OF )

POLICE, FRED RICE, JR., DENNIS )

E. NOWICKI, JOSEPH BEAZLEY and )

JOHN SHEERIN, ) The Honorable

) Ronald C. Riley,

Defendants-Appellees. ) Judge Presiding

JUSTICE HOURIHANE delivered the opinion of the court:

This appeal arises out of a civil rights action filed by

Ralph Strocchia (Strocchia), a career service officer with the

Chicago Police Department, against the City of Chicago, pursuant

to the provisions of 42 U.S.C.  1983 (1988). Strocchia claimed

that the department's handling of his request for reinstatement

to the police force following an approved leave of absence

resulted in violations of his procedural and substantive due

process rights. Strocchia appeals from the judgment of the

circuit court entered upon a jury verdict in favor of the city.

On appeal, Strocchia asserts that the trial court erred by

improperly instructing the jury; dismissing his state

constitutional claims; denying his motions to amend the pleadings

and for equitable relief; ruling incorrectly on certain

evidentiary matters; and denying his motion for sanctions.

For the reasons that follow, we affirm the judgment of the

trial court in favor of the city.

BACKGROUND

In 1981, plaintiff was a Chicago police officer assigned to

the Traffic Division, Scofflaw Unit. Having served on the force

for 29 years, he was classified as a "career service" employee of

the city. On January 1, 1982, the Scofflaw Unit became a part of

the city's law department. Plaintiff, along with several other

police officers, took approved leaves of absence from the police

department for calendar year 1982 and continued to work in the

Scofflaw Unit under the auspices of the city's law department.

Additional leaves of absence were granted for 1983 and 1984 for

this purpose.

Plaintiff testified that at the time his initial leave of

absence was granted, Hugh Conwell, who organized and headed up

the Scofflaw Unit within the law department, advised him that he

could return to the police department at the end of any approved

leave, without loss in salary or seniority. Plaintiff was

assured that the only difference between working for the law

department and the police department was the payroll. As part of

the transfer to the law department, arrangements were made with

the Policemen's Annuity and Benefit Fund of Chicago so that

plaintiff could make his pension contributions to the fund by

personal check, rather than by payroll deductions. This

preserved his continued service credit with the police department

pension fund.

In 1984, the law department was reorganized and the position

plaintiff occupied in the Scofflaw Unit was no longer treated or

paid the same as a police officer. Thus, plaintiff and other

officers similarly situated applied for reinstatement to their

career service positions in the police department. In connection

with plaintiff's reinstatement, on December 17, 1984, he reported

for a medical examination to determine fitness for duty. The

exam could not go forward because plaintiff ate breakfast that

morning. Budgetary problems in the police department delayed

rescheduling of the exam until January 22, 1985. For the most

part, the other officers who sought reinstatement successfully

completed their physicals and were returned to the force on or

about January 1, 1985.

Following plaintiff's physical on January 22, Dr. Paul

Mesnick, the police department's Chief Surgeon, advised plaintiff

that a cardiac stress test was needed to complete the exam. The

stress test was ordered in response to plaintiff's disclosure on

a medical questionnaire that while on leave he had undergone

brain surgery following a small stroke. Also while on leave, he

was diagnosed as a diabetic. By the end of February 1985,

plaintiff completed all required tests, but Dr. Mesnick wished to

review the medical records from plaintiff's brain surgery.

Apparently frustrated by the delay in his reinstatement, in

June or July 1985, plaintiff contacted former Superintendent of

Police Richard Brzeczek for assistance. Brzeczek, an attorney in

private practice, contacted former associates in the department

concerning the status of plaintiff's reinstatement. Shortly

thereafter, and prompted by a telephone call from an aid to then

Deputy Superintendent of Police Dennis Nowicki, plaintiff finally

signed the release for medical records on July 11, 1985. The

records were received by the department August 8, 1985, and three

weeks later the department began taking formal steps to reinstate

plaintiff at full seniority.

In an August 28, 1995 letter to Nowicki, Brzeczek requested

that plaintiff be reinstated and demanded back-pay to January 1,

1985. Around the same time, plaintiff was advised by John

Sheerin, Assistant Director of Personnel, that he could return to

the force on September 16, 1985, but this date conflicted with a

European vacation plaintiff already had scheduled. Rather than

delay his reinstatement, plaintiff requested that he be put on

furlough beginning September 16. Commanding officers are allowed

to decide such requests, but until plaintiff returned to work and

received a duty assignment, he would have no commanding officer.

Thus, during a conversation between plaintiff and Sheerin it was

agreed that plaintiff would return one month later on October 16.

According to plaintiff, Sheerin could not say what plaintiff's

pay or seniority would be upon his return. Although plaintiff

had earlier been advised by personnel that payroll information

could be obtained through the finance division, plaintiff never

contacted this office. On September 5, 1985, unbeknownst to

plaintiff, the department approved plaintiff's reinstatement at

full seniority and at the highest pay rate.

On September 4, 1985, Nowicki responded in writing to

Brzeczek's August 28 letter. Nowicki attributed the delay in

reinstatement to plaintiff's own conduct and the need to resolve

some serious medical issues. Nowicki acknowledged that the

September 16 start date conflicted with plaintiff's vacation, but

did not mention the new start date of October 16. Rather,

Nowicki stated that plaintiff should notify the department in

writing upon his return of his future availability, which was

never done.

Upon return from vacation, plaintiff first contacted

Brzeczek who, according to plaintiff, advised him that the

department was only offering reinstatement as a new hire.

Brzeczek purportedly received this information from Nowicki.

Plaintiff subsequently advised Sheerin that he was ready to

return to work on October 16. Once again, Sheerin could not tell

him what pay or seniority had been approved. Without first

advising anyone in the department, plaintiff decided not to

report for duty on October 16. Having failed to appear for work

as scheduled, Rita Zimmerman in personnel checked with the law

department and learned that plaintiff was still working there.

Zimmerman did not speak directly with plaintiff. She advised

payroll that plaintiff's return to duty was cancelled and that

there was no corrected date for his return. Had plaintiff

remained on both payrolls, his check from the law department

would have been automatically cancelled.

On November 7, 1985, the department's approval of

plaintiff's reinstatement was extended 60 days to early January

1986. Plaintiff was not notified of this action and at no time

did he report for duty. Rather, plaintiff continued to take

successive extensions of his leave of absence so that he could

continue working in the law department. The last such extension

was through 1986.

On January 10, 1986, plaintiff filed a petition for

declaratory judgment in the chancery court seeking a ruling that

he was entitled to reinstatement at his full salary and

seniority, as well as backpay to January 1, 1985. Shortly

thereafter, plaintiff resigned from the department, effective

February 16, 1986. He noted on the departmental form that he was

"[r]etiring due to circumstances beyond [his] control."

Four months after his resignation/retirement, plaintiff

amended his complaint in the chancery court, this time alleging a

violation of his equal protection and due process rights, as well

as a breach of his employment contract by the department for its

failure to reinstate him and to pay him for accumulated overtime.

He sought money damages only. His amended complaint was

dismissed for want of prosecution on April 28, 1987.

One year later, he filed a complaint in the law division

alleging that plaintiff had been singled out for additional

medical testing and that the department had refused to reinstate

him on the same terms as the other officers who had gone over to

the law department. He asserted violations of his right to equal

protection of the laws, violations of his due process rights, and

breach of his employment contract. Plaintiff sought money

damages only.

In October, 1993, trial proceeded on his second amended

complaint, which alleged in count I a violation of his procedural

due process rights, and in count II a violation of his

substantive due process rights. Plaintiff sought reinstatement

and money damages. The jury returned a verdict in favor of the

city and plaintiff's post-trial motions for judgment

notwithstanding the verdict or a new trial were denied. The

trial court also denied plaintiff's motion for sanctions based

upon the city's purported failure to investigate the facts of the

case or to disclose known facts. This appeal followed. 155 Ill.

2d R. 301.

ANALYSIS

I

We first consider whether the trial court erred by

dismissing count III of plaintiff's second amended complaint. On

the eve of trial, plaintiff was granted leave to file a second

amended complaint adding a new count III for retaliatory

discharge. However, as filed by plaintiff, count III contained

allegations not only of retaliatory discharge, but state

constitutional claims as well. The trial court granted the

city's motion to dismiss brought under section 2-615 of the Code

of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1994)), finding

that the retaliatory discharge claim was actually premised on the

constructive discharge of plaintiff, which could not support a

retaliatory discharge claim. The trial court also struck all

allegations in count III relating to state constitutional claims

based on surprise and lack of notice to defendant, but left open

the issue of whether plaintiff's complaint could subsequently be

amended to include such claims.

On review of a motion to dismiss pursuant to section 2-615

of the Code, this court must consider whether, when viewed in a

light most favorable to plaintiff, the facts alleged in the

complaint adequately set forth a cause of action upon which

relief may be granted. The issue is one of law and review is de

novo. Majumdar v. Lurie, 274 Ill. App. 3d 267, 268, 563 N.E.2d

915 (1995).

Count III of plaintiff's second amended complaint contains

allegations that plaintiff involuntarily resigned from the

department in response to the city's continuous and wrongful

position that he could not return except as a new hire.

Plaintiff alleged that the city's refusal to reinstate him prior

to filing suit was done either negligently or in retaliation for

his refusal to waive backpay, and that the city's continued

refusal to reinstate him was in retaliation for the filing of his

lawsuit. Finally, plaintiff alleges that the city's conduct

constitutes a discharge of plaintiff in contravention of the

public policy of the state. Such facts, even if true, would not

entitle plaintiff to relief based on a theory of retaliatory

discharge.

To succeed on a claim for retaliatory discharge, an employee

must plead and ultimately prove (1) that he was discharged; (2)

that the discharge was in retaliation for his activities; and (3)

that the discharge violates a clear mandate of public policy.

Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 160 (1992).

Mere assertions by a plaintiff that he was "compelled" to resign

are insufficient and Illinois courts have thus consistently

declined to extend the tort of retaliatory discharge to encompass

the concept of constructive discharge. Hartlein, 151 Ill. 2d at

163; Dudycz v. City of Chicago, 206 Ill. App. 3d 128, 133, 563

N.E.2d 1122 (1990); Grey v. First National Bank of Chicago, 169

Ill. App. 3d 936, 940-43, 523 N.E.2d 1138 (1988); Scheller v.

Health Care Service Corp., 138 Ill. App. 3d 219, 223-25, 485

N.E.2d 26 (1985). Cf. Hinthorn v. Roland's of Bloomington, Inc.,

151 Ill. App. 3d 1006, 503 N.E.2d 1128 (1987) (involuntary

resignation under threat of discharge satisfies discharge

requirement for retaliatory discharge claim).

Plaintiff here asserts that he was compelled to resign in

response to the city's conduct relative to his reinstatement.

Nowhere is it alleged that the city terminated plaintiff's

employment. In fact, plaintiff admits that the city approved him

for reinstatement with credit for 32 years of service. Moreover,

in paragraph 49 of plaintiff's count I, which is incorporated by

reference into count III, plaintiff states:

"The refusal of defendants *** to reinstate

Strocchia after October 1985 unless he waived his

rights to backpay and seniority constituted a

termination or constructive discharge of Strocchia

from his Career Service position with the CPD."

(emphasis added)

Thus, although plaintiff argues to the contrary, plaintiff's

retaliatory discharge claim is clearly premised upon a theory of

constructive discharge. However, allegations of constructive

discharge will not support a cause of action for retaliatory

discharge. Hartlein, 151 Ill. 2d at 163. Accordingly, the trial

court properly dismissed that part of count III relating to a

claim for retaliatory discharge.

We also find no error in the trial court's dismissal of

plaintiff's state constitutional claims embodied in count III.

Although amendment of pleadings should be liberally allowed to

permit the parties to fully present their causes (State Farm Fire

& Casualty Co. v. M. Walter Roofing Co., 271 Ill. App. 3d 42, 49,

648 N.E.2d 254 (1995)), there is no absolute right to amend

pleadings. Weber v. Cueto, 253 Ill. App. 3d 509, 523, 637 N.E.2d

1103 (1994). Rather, the decision to allow amendment lies within

the sound discretion of the trial court and will not be reversed

on review absent an abuse of discretion. In re Estate of Hoover,

155 Ill. 2d 402, 416 (1993). Factors to be considered in whether

the trial court abused its discretion by allowing or denying the

amendment are:

"(1) whether the proposed amendment will cure the

defective pleading; (2) whether the proposed

amendment would surprise or prejudice the opposing

party; (3) whether the proposed amendment was

timely filed; (4) whether the movant had previous

opportunities to amend." Hoover, 155 Ill. 2d at

416.

Here, in light of the plaintiff's request to amend only to

add a count for retaliatory discharge, and the court's order

limiting amendment to that sole issue, the trial court struck

plaintiff's state constitutional claims based on surprise to the

defendant. Because we find that the plaintiff had prior

opportunities to amend and that defendant would be prejudiced by

allowance of such an amendment on the eve of trial, we affirm the

trial court's dismissal.

Plaintiff claims that his amendment was based on evidence

not disclosed until just before trial which established that, at

the time plaintiff's original suit was filed in January 1986,

city officials had already approved his return at full pay and

seniority. Such information, however, is not a necessary

predicate to plaintiff's state constitutional claims which appear

to be loosely based on a violation by the city of its purported

obligation to provide plaintiff with a remedy for unreasonably

delaying his reinstatement beyond January 1, 1985. Plaintiff

cites to sections 2, 5 and 12 of Article I of the Illinois

constitution, titled "Due Process and Equal Protection", "Right

to Assemble and Petition", and "Right to Remedy and Justice",

respectively. Without regard to whether the allegations in count

III adequately state a cause of action for deprivation of

plaintiff's constitutional rights, plainly, such a theory of

recovery could have been advanced much sooner by plaintiff. The

delay in plaintiff's reinstatement occasioned by the city's

purported conduct has been the gravamen of plaintiff's case since

the inception of this litigation and plaintiff offers no

reasonable excuse for his failure to amend earlier.

Further, count III appears to suggest a violation of

plaintiff's constitutional rights based on the city's very

handling of this litigation over a period spanning more than

seven years. We note that this is also the subject of

plaintiff's motion for sanctions. Defense of this eleventh-hour

claim would have prejudiced the city by materially changing the

proofs required at trial which had theretofore focused on the

events giving rise to plaintiff's leave of absence from the

police department and the department's subsequent handling of his

request for reinstatement. See State Farm Fire & Casualty Co.,

271 Ill. App. 3d at 49-50. Based on the foregoing, we cannot say

that the trial court abused its discretion by not allowing

amendment of plaintiff's complaint to include state

constitutional claims.

We also find no error in the trial court's denial of

plaintiff's motion to amend the pleadings to conform to the

proofs. At the close of all the evidence, plaintiff moved,

pursuant to section 2-616 of the Code (735 ILCS 5/2-616 (West

1994)) to amend his complaint by adding state claims for (1)

violations of the city's "rules, ordinances and promises" in

denying plaintiff reinstatement in 1985; and (2) violations of

the state constitutional guarantees of due process and the right

to prompt remedy and justice by contesting plaintiff's rights

throughout eight years of litigation.

It is axiomatic that the evidence presented at trial must

support the amended pleading. See Pry v. Alton & Southern

Railway Co., 233 Ill. App. 3d 197, 214, 598 N.E.2d 484 (1992).

Plaintiff, however, points to no evidence that city officials

denied plaintiff reinstatement in contravention of city rules and

a review of the record discloses no such evidence. Further,

contrary to Supreme Court Rule 341 (155 Ill. 2d R. 341(e)(7)),

plaintiff fails to cite any legal authority in support of his

contention that the city's knowledge that it had approved

plaintiff for reinstatement, coupled with its vigorous defense of

plaintiff's various complaints, somehow constitutes a violation

of plaintiff's state constitutional rights. Thus, this matter is

waived on appeal. Pyskaty v. Oyama, 266 Ill. App. 3d 801, 822,

641 N.E. 2d 552 (1994).

Plaintiff further sought additional equitable relief barring

the city from asserting that the actions of city officials who

failed to reinstate plaintiff in 1985 were random and

unauthorized actions for which the city would not be liable if

adequate procedures were available for review. Plaintiff also

sought an order estopping the city from arguing that plaintiff

could have obtained relief by petitioning for a writ of mandamus

or declaratory judgment. Plaintiff argues that the denial of

such requests led to the adoption of improper jury instructions

and to improper closing argument by the city. However, we need

not consider these issues since we find, as discussed in section

II infra, that the city was entitled to judgment as a matter of

law.

II

Plaintiff argues that the trial court erred in giving jury

instructions which contained incorrect and conflicting statements

of the law. Even if true, a new trial is not warranted since we

find that defendant was entitled to judgment as a matter of law.

See Grass v. Hill, 94 Ill. App. 3d 709, 718, 418 N.E.2d 1133

(1981); Folk v. National Ben Franklin Insurance Co., 45 Ill. App.

3d 595, 599, 359 N.E. 2d 1056 (1976). "If the decision of the

trial court is correct under the circumstances of the case, it

will not be reversed on appeal for the reason that an incorrect

means was used to arrive at the decision, and this is

particularly true where reversal and retrial would only result in

the same decision." In re Marriage of Benefield, 131 Ill. App.

3d 648, 650, 476 N.E.2d 7 (1985).

We note, too, that a reviewing court may sustain the

decision of the trial court on any ground supported by the

record. Landmarks Preservation Council of Illinois v. City of

Chicago, 125 Ill. 2d 164, 174 (1988). Further, the scope of

review as to an appellee is not limited to the errors assigned by

the appellant where judgment below was entirely in favor of

appellee. In such a case, an appellee may argue to sustain the

judgment on any basis supported in the record without the need to

file a cross-appeal. People v. Hamm, 149 Ill. 2d 201, 215 (1992).

Accordingly, we consider the city's argument, advanced

before this court and in its motion for a directed verdict, that

plaintiff failed to present any evidence that a custom, practice,

or policy of the city caused a deprivation to plaintiff of his

procedural due process rights.

The Civil Rights Act of 1871, codified at 42 U.S.C.  1983,

provides in relevant part:

"Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State *** subjects, or causes to be subjected, any

citizen of the United States *** to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding

for redress." 42 U.S.C.  1983 (1988).

The purpose of this statute is to "deter state actors from using

their badge of authority to deprive individuals of their

federally guaranteed rights and to provide relief to victims if

such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161, 118 L.

Ed. 2d 504, 511, 112 S. Ct. 1827, 1830 (1992). Where a plaintiff

sues a municipality under section 1983, two distinct issues must

be examined: (1) whether a violation of some constitutionally

protected right caused plaintiff's injury, and (2) whether the

municipality is responsible for the violation. Collins v. City

of Harker Heights, 503 U.S. 115, 120, 117 L. Ed. 2d 261, 270, 112

S. Ct. 1061, 1066 (1992). Examination of the second issue

requires adherence to the rule of law set forth in Monell v. New

York City Department of Social Services, 436 U.S. 658, 50 L. Ed.

2d 611, 98 S. Ct. 2018 (1978). There the United States Supreme

Court held that liability under section 1983 will only attach to

a municipality where the plaintiff's injury was the product of an

official policy, custom, or practice:

"[A] municipality cannot be held liable

solely because it employs a tortfeasor--or, in

other words, a municipality cannot be held liable

under  1983 on a respondeat superior theory.

* * *

Instead, it is when execution of a government's

policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said

to represent official policy, inflict the injury

that the government as an entity is responsible

under  1983." Monell, 436 U.S. at 694 (emphasis

in original).

See also Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992);

Ceko v. Martin, 753 F.Supp. 1418, 1421, n.2 (N.D. Ill. 1990);

Veach v. Cross, 178 Ill. App. 3d 102, 109, 532 N.E.2d 1069

(1988); Loftus v. Mingo, 158 Ill. App. 3d 733, 742, 511 N.E.2d

203 (1987).

Plaintiff here alleged a violation of his procedural due

process rights. To sustain such a claim, plaintiff must

demonstrate: "(1) a cognizable property interest; (2) a

deprivation of that property interest; and (3) a denial of due

process." Buttitta v. City of Chicago, 9 F.3d 1198, 1201 (7th

Cir. 1993). As plaintiff correctly maintains, a police officer

has a property interest in his continued employment (Dudycz, 206

Ill. App. 3d at 135), as well as the benefits, such as salary,

associated with that employment, which cannot be taken away

without due process. Ceko, 753 F. Supp. at 1423. Preliminarily,

we note that plaintiff was not on the police department's

payroll. Assuming, however, that plaintiff's property interest

in continued employment with the department was unaffected by his

on-leave status, the evidence adduced at trial failed to

demonstrate a deprivation.

The evidence established that plaintiff was approved for

reinstatement at full seniority and the highest pay scale, that

an agreed start date was established which accommodated

plaintiff's vacation, that plaintiff failed to report for duty as

agreed, and that plaintiff subsequently resigned. There was no

evidence that plaintiff's employment was terminated or that he

was prevented from returning to active duty with the department.

Plaintiff, nonetheless, attaches much importance to the fact

that no one from the city advised plaintiff that he had been

approved for reinstatement on the terms sought. Joseph Beazley,

Director of Personnel, testified that the personnel section had a

responsibility to so notify plaintiff. Even if true, a mere lack

of due care by a state official is not a deprivation. See

Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct.

662 (1986) (due process clause not implicated by negligent act of

state official causing unintended loss of or injury to life,

liberty, or property; to hold otherwise would trivialize due

process law). Without a deprivation of plaintiff's property

interest, the issue of due process never arises. Schroeder v.

City of Chicago, 927 F.2d 957, 960 (7th Cir. 1991). Similarly,

negligent supervision of subordinates will not give rise to

liability under section 1983. Wilson v. City of Chicago, 6 F.3d

1233, 1241 (7th Cir. 1993).

While plaintiff generally asserts a right to continued

employment, he also more specifically asserts a right to

immediate reinstatement at a particular salary and seniority

level. We note that property rights are not conferred by the

constitution. "Rather, they are created and their dimensions are

defined by existing rules or understandings that stem from an

independent source such as state law ***." Board of Regents of

State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561,

92 S. Ct. 2701, 2709 (1972).

Here, there was evidence that, according to departmental

policy, an officer such as plaintiff who is returning from an

approved leave of absence to perform other law enforcement work,

would be credited with full seniority, salary and benefits.

Plaintiff nonetheless fails to identify the source of his alleged

property interest in immediate reinstatement upon application.

The department's leave of absence policy on which plaintiff

generally appears to rely does not require immediate

reinstatement:

"When a leave has been granted properly and when

the member is prepared to return to work in

conformity with the terms and conditions of the

leave of absence, the member *** will be restored

to his or her position in the career service,

provided that the position is available."

Thus, restoration of plaintiff to his career service position

must be in conformity with the terms and conditions of the leave

of absence. As the trial court observed, the evidence

established that an officer returning from a leave of absence

such as plaintiff's is required to undergo a medical screening.

Nowicki, Beazley, Sheerin and Mesnick all testified accordingly.

The only witness who testified to the contrary was Brzeczek.

Additionally, John Dineen, President of the Fraternal Order of

Police, Lodge 7, testified that he was aware that the department

has requirements for mandatory physicals under certain

circumstances and that such requirements are permissible under

the collective bargaining agreement. Furthermore, pursuant to a

general order of the department, exempt members of the department

or the Chief Police Surgeon may order any member to submit to a

physical examination to determine fitness for duty.

Significantly, plaintiff presented no evidence that the fitness-

for-duty requirement had been waived as a condition of his leave

of absence. Having thus failed to establish that he had a

cognizable property interest in immediate reinstatement,

plaintiff's procedural due process claim cannot be maintained on

this basis. See Schroeder v. City of Chicago, 927 F.2d 957 (7th

Cir. 1991) (former fire fighter's section 1983 suit complaining

of delay in payment of disability benefits dismissed where no

entitlement to immediate payment of benefits was established

under governing statute).

Even if the reasonable inferences to be drawn from the

evidence here established both a property interest and a

deprivation, because there was no evidence that such deprivation

was the result of an official policy, custom or practice of the

city, plaintiff's claim must fail. See Monell, 436 U.S. at 694.

Although plaintiff disputes that he was required to prove this

element of his section 1983 claim, the case law is clear that no

liability to a municipality will result unless an official policy

of the municipality is the "moving force" of the constitutional

violation. Monell, 436 U.S. at 694. The record is devoid of any

evidence of a municipal policy at work here.

At most, the evidence establishes that Deputy Superintendent

of Police Nowicki misstated departmental policy when he allegedly

advised Brzeczek that plaintiff could only return as a new hire.

Such isolated conduct of a municipal official will only sustain a

section 1983 claim against the municipality where the official

had final policymaking authority in that area of the

municipality's business and a governmental policy could thus be

inferred. City of St. Louis v. Praprotnik, 485 U.S. 112, 121-27,

99 L. Ed. 2d 107, 116-20, 108 S. Ct. 915, 923-26 (1988).

Plaintiff does not argue on appeal, nor are we otherwise

persuaded, that Nowicki possessed final policymaking authority

for the city as to pay and seniority terms under which an

officer's reinstatement would be approved. See Auriemma v. City

of Chicago, 747 F. Supp. 465 (N.D. Ill. 1990), aff'd, Auriemma v.

Rice, 957 F.2d 397 (7th Cir. 1992)(police superintendent does not

possess final policymaking authority for municipal employment

policy and thus city not liable under section 1983 for allegedly

discriminatory employment decisions by superintendent).

Moreover, even if Nowicki's purported statements to Brzeczek

served to defeat a municipal employment policy, no section 1983

liabilility will attach. Auriemma, 957 F.2d at 400 (Monell tells

us that to hold the municipality liable, the agent's action must

implement rather than frustrate the government's policy).

Considering the evidence in the light most favorable to

plaintiff and making all reasonable inferences therefrom, we

conclude that the evidence so overwhelmingly favors the city that

no contrary verdict could ever stand. See Maple v. Gustafson,

151 Ill. 2d 445, 453 (1992). Plaintiff simply failed to

establish the essential elements of his section 1983 cause of

action. Thus, any error as to the propriety of the jury

instructions will not provide a basis for reversal. See Grass v.

Hill, 94 Ill. App. 3d at 718.

We also find that admission into evidence of certain

conversations between plaintiff and Brzeczek concerning

Brzeczek's conversations with Nowicki would not add materially to

the proofs presented at trial and would not alter this court's

conclusion that the city was entitled to judgment as a matter of

law. Therefore, any error by the trial court in granting the

city's motion in limine to bar such evidence was at most

harmless. See Ford v. City of Chicago, 132 Ill. App. 3d 408, 416,

476 N.E.2d 1232 (1985). We similarly find that any error in

withholding from the jury pleadings filed in plaintiff's 1986

chancery court action was harmless.

Based on the foregoing, we affirm the judgment of the trial

court in favor of the city as to defendant's section 1983 claim.

III

Finally, plaintiff contends that the trial court erred in

denying his motion for sanctions. Plaintiff argues that the city

failed to perform any investigation into the facts and law of the

case or, alternatively, withheld highly relevant information.

Specifically, plaintiff claims that the city failed to disclose

that plaintiff had been approved for reinstatement on the terms

sought, and that the city acted inconsistently with such

information by denying, throughout the course of this litigation,

that plaintiff had any entitlement to return to his job with full

pay and seniority.

Sanctions may be imposed under Supreme Court Rule 137 where

a party or counsel files a pleading which is not well grounded in

fact, is not warranted by existing case law or a good-faith

argument for the extension, modification, or reversal of existing

law, or is interposed for any improper purpose. 155 Ill. 2d R.

137. Because the rule is penal in nature, it will be strictly

construed. In re Marriage of Pitulla, 256 Ill. App. 3d 84, 90,

628 N.E. 2d 563 (1993). The test for determining whether a

violation has occurred is an objective standard of what was

reasonable under the circumstances at the time of filing.

Village of Lake Barrington v. Hogan, 272 Ill. App. 3d 225, 235,

649 N.E.2d 1366 (1995). The grant or denial of a motion for

sanctions is within the sound discretion of the trial court and

will not be reversed on review absent an abuse of discretion. In

re Estate of Wernick, 127 Ill. 2d 61, 77-78 (1989).

Based on our review of the record, we cannot say that the

trial court abused its discretion in denying plaintiff's motion

for sanctions. Plaintiff seems to suggest that there was

something inherently improper about the city's challenge to the

legal sufficiency of plaintiff's various complaints. Plainly,

however, before proceeding to the merits of plaintiff's claims,

it was incumbent upon plaintiff to state a valid cause of action.

Similarly, there was nothing improper about the city's challenge

to plaintiff's claims on procedural grounds. We note that the

city prevailed on several of the motions plaintiff seeks to

characterize as frivolous.

We also reject plaintiff's contention that the city

improperly withheld information relative to the department's

approval of plaintiff's reinstatement, resulting in protracted

litigation. Plaintiff argues that rather than acknowledge that

plaintiff's reinstatement had been approved at full pay and

seniority, the city responded to his initial complaint in the

chancery court with a motion to strike and dismiss. Again, we

cannot say that the city's challenge to the legal sufficiency of

plaintiff's complaint was improper. Further, plaintiff's amended

complaint in chancery was dismissed for want of prosecution.

Thus, any delay in the ultimate resolution of plaintiff's claims

arising out of his chancery court action is not the fault of the

city.

In addition, by the time plaintiff filed the instant action

in the law division, he had already resigned to accept his

retirement pension more than a year prior. Based on department

rules, thirty days after the effective date of plaintiff's

resignation, he would not have been entitled to reinstatement

except as a new hire. Thus, we cannot say that the city's denial

of a right to reinstatement at that time was necessarily

inconsistent with the city's knowledge that plaintiff had

previously been approved for reinstatement on the terms sought.

Moreover, the mere fact that the city approved plaintiff's

request for reinstatement is not tantamount to recognition by the

city of a property interest in immediate reinstatement. Thus,

there was nothing improper about defending this action on the

basis that plaintiff had no such property interest. Finally,

plaintiff fails to identify what other state law claims he might

have pursued had the city informed him that he had been approved

for reinstatement at full pay and seniority in September 1985.

In any event, there is no evidence that the city withheld

information merely to frustrate plaintiff's ability to pursue

additional claims against the city or for any other improper

purpose. Accordingly, we affirm the trial court's denial of

plaintiff's motion for sanctions.

For all the foregoing reasons, the judgment of the trial

court in favor of the city is affirmed.

AFFIRMED.