Jerome Jones, and All Others Similarly Situated v. City of Gary, Indiana

57 F.3d 1435, 1995 U.S. App. LEXIS 15709, 1995 WL 372939
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 22, 1995
Docket94-2673
StatusPublished
Cited by35 cases

This text of 57 F.3d 1435 (Jerome Jones, and All Others Similarly Situated v. City of Gary, Indiana) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jerome Jones, and All Others Similarly Situated v. City of Gary, Indiana, 57 F.3d 1435, 1995 U.S. App. LEXIS 15709, 1995 WL 372939 (7th Cir. 1995).

Opinions

COFFEY, Circuit Judge.

Jerome Jones filed a class action complaint in district court alleging that Fire Chief Benjamin Perry, acting on behalf of the City of Gary, Indiana, was summarily suspending firefighters without pay and without pre-sus-pension hearings, thus depriving them of their protected property interests in their employment without due process of law in violation of the Fourteenth Amendment and 42 U.S.C. § 1988.1 Both parties filed cross motions for summary judgment. The district court granted the City’s motion and denied Jones’s motion, finding that Jones’s post-suspension hearing had afforded him due process of law. We affirm.

I. BACKGROUND

Jones became a member of the City of Gary, Indiana Fire Department in July, 1982, at the age of twenty-seven. Four years later, in 1986, he developed what Dr. Clifford Eguw, Jones’s physician, diagnosed as an arthritic condition in his left knee, right foot, and right elbow. Jones claimed that his arthritis impaired his ability to perform all the requirements of his job and that he fell off a ladder while on duty, the fall being caused by the pain from his arthritis. Jones stated that climbing ladders and lifting heavy objects,2 aggravated his condition. He reported that changes in climate frequently caused flare-ups of his arthritic condition and that they usually continued for a period of three to four days.3 In April, 1988, Jones took time off from work because of his arthritis and sought evaluation and medical treatment, when indicated, from a number of doctors including Dr. William Lewis, his physician, as well as Dr. Larry Brazley, an arthritic specialist, who allegedly submitted reports to Chief Perry about Jones’s condition. The record does not reflect that Jones was on any medication for his arthritic condition. On July 12, 1988, Chief Perry sent Jones a letter stating “you have exhausted your sick leave for the year of 1988.4 As of July 12, 1988, I am requesting you to be placed on pension immediately.”

Jones requested a disability pension5 because of his arthritic knee and the Local Pension Hearing Board held a hearing on the [1437]*1437matter on September 15, 1988.6 After reviewing both the records and letters submitted by Jones and the Board physician, the Board denied Jones’s application for a disability pension stating that “[t]he Local Board determines that claimant Jerome Jones is not permanently or temporarily unable to perform all suitable and available work for which he is or may be capable of becoming qualified.” Jones appealed the Board’s decision to the City of Gary Public Employees’ Retirement Fund Board (“PERF”) which, on February 21, 1989, upheld the Local Pension Board’s decision relying on Dr. Bill’s finding that Jones was “not impaired within the meaning of impairment as used in the Police and Fire Pension Fund.” The PERF Board concluded that Jones was not disabled and made no specific finding other than that.

In light of the PERF Board’s decision, on February 24, 1989, Chief Perry sent Jones a letter ordering him to return to duty and informing him that if he failed to report to work forthwith, he would be removed from the payroll. Chief Perry also advised Jones that charges would be filed with the Gary Fire Civil Service Commission (GFCSC) seeking his dismissal from the Department if he failed to immediately return to work. The letter also informed Jones that after he returned to work, he would have fifteen days to appeal the PERF Board decision affirming the denial of a disability pension.7 Jones filed a timely appeal but he canceled and rescheduled his disability pension hearing before the PERF Board on five different occasions.8

On March 6, 1989, while Jones’s appeal of the PERF Board’s decision was pending9 with the ALJ, Chief Perry sent Jones a letter notifying him that because he failed to report for work on February 28, he would be suspended for thirty days without pay.10 Jones [1438]*1438was not afforded a pre-suspension hearing by the GFCSC but was advised that he had ten days to appeal his suspension to the GFCSC.

By letter dated April 12, 1989, the Fire Chief informed the GFCSC that Jones was suspended without pay for thirty days as of February 28, 1989, and requested that the GFCSC terminate his employment because of his continued absence from duty without permission. On April 12 and April 13, Chief Perry sent letters to Jones confirming his thirty day suspension11 and notifying Jones that because of his continual failure to report for duty, he was instituting proceedings seeking his dismissal from the fire department.

Jones continued to remain on off duty status until June 6, 1989 when Chief Perry sent Jones another letter, advising him that his failure to report for duty dictated his placement on absent without leave (AWOL) status in violation of the City of Gary Fire Department Rules and Regulations. On June 8, 1989, the GFCSC heard Jones’s appeal of his February, 1989 suspension without pay. The GFCSC affirmed Jones’s suspension, but delayed the determination of his employment status pending the outcome of his disability pension appeal with the ALJ. The GFCSC refused to address whether or not Jones was entitled to a disability pension because that responsibility belonged to the ALJ and the PERF Board. After its review, the GFCSC reinstated Jones to duty status as of March 29, 1989, and ordered back pay retroactive to that date.12

Meanwhile, Jones’s appeal of the denial of his disability pension, a proceeding distinct from the one he is appealing, went forward. On August 17, 1989, an ALJ heard Jones’s appeal of the PERF Board’s denial of his disability pension. Jones submitted reports from Drs. Lewis and Brazley, as well as reports from Drs. Chermel and Slezas.13 The City submitted the decision of the Local Pension Board in addition to letters Dr. Arthur Paul Rebel submitted to the PERF Board which had letters from Dr. H.O. Dou-manian and Dr. Robert S. Martino attached to them.14 The ALJ, after reviewing the evidence and records presented to the Local Pension Board, as well as the PERF Board, upheld the PERF Board’s decision because “Jones has shown no objective evidence that he is permanently or temporarily unable to perform the duties of a firefighter.”15 The ALJ recommended to the PERF Board that Jones be denied a disability pension. Jones objected to the ALJ’s determination, and the PERF Board remanded the matter back to the ALJ in November 1989 for the acceptance. of further medical information in support of his claim. Although Jones did present further information and submit to further medical examination and evaluation, this information was not received by the ALJ until well after the relevant proceedings for this appeal had concluded.16

[1439]*1439Between April, 1989 and March, 1990, Chief Perry sent the GFCSC eight letters, all recommending the termination of Jones’s employment for failure to report to duty, and requesting that the GFCSC hold á hearing regarding Jones’s employment status.

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Bluebook (online)
57 F.3d 1435, 1995 U.S. App. LEXIS 15709, 1995 WL 372939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerome-jones-and-all-others-similarly-situated-v-city-of-gary-indiana-ca7-1995.