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Player v. Village of Bensenville, No. 2-98-1549

2nd District, 30 December 1999

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Pro se plaintiff, James Player, appeals from the trial court's dismissal of his complaint against defendants, Village of Bensenville (Village) and Bensenville Elementary School District No. 2 (District), with prejudice, pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1998)). Plaintiff filed a timely notice of appeal. This court has jurisdiction over this matter pursuant to Supreme Court Rule 303 (155 Ill. 2d R. 303).

On appeal, plaintiff argues that (1) the clerk of the circuit court improperly designated his case as an "administrative review" action rather than a "miscellaneous remedies" action; (2) the trial court improperly denied his request for oral argument on defendants' motions to dismiss the complaint; (3) the trial court erroneously construed the law pertaining to hiring preferences for veterans; (4) the trial court improperly denied plaintiff's motion for a court-appointed attorney; (5) the trial court erred in allowing the Village to proceed with its motion to dismiss after it had earlier been defaulted; (6) the defendants unlawfully performed their duties during the hiring process for the position for which plaintiff applied; (7) the intergovernmental agreement between defendants was invalid; and (8) the manner and sequence in which the trial court ruled on the parties' motions were erroneous. For the reasons that follow, we affirm the judgment of the circuit court.

Plaintiff filed a complaint against the Village and the District on July 29, 1998. He alleged that in June 1998 he applied for the position of "Redmond Park Coordinator-Physical Education Teacher," which came about through an intergovernmental agreement between the Village and the District. Plaintiff further alleged that he was a "qualified veteran and qualified teacher." Plaintiff claimed that he was entitled to an absolute hiring preference for the position by virtue of his veteran status. He further claimed that the manager and assistant manager for the Village denied him his rights by refusing to interview him for the position.

Plaintiff alleged that the District was responsible for paying the salary and benefits associated with the position and that it too failed to recognize plaintiff's right to an absolute hiring preference. In his prayer for relief, plaintiff requested that he be appointed to the position he applied for and that he be granted back pay, full benefits, and $100,000 in compensatory and punitive damages.

In response to the complaint, the District filed a motion to dismiss pursuant to section 2--615, arguing that plaintiff could not state a claim upon which relief could be granted. The Village sought leave to and did file a motion to dismiss but later joined in the District's motion to dismiss.

Plaintiff filed numerous motions, including a motion to strike the Village's motion to dismiss, a "Motion to Deny Defendant's, Village of Bensenville, Motions to Vacate and Re-Notice of Motion to Dismiss My Case," a "motion to deny" the District's motion to dismiss, and a motion for a court-appointed attorney. Plaintiff also filed responses to both the District's and the Village's motions to dismiss, which were titled "motions to respond." All of plaintiff's motions were fully briefed.

On November 6, 1998, the trial court entered an order that read as follows, in relevant part:

"1. Defendant Village's motion to vacate defaults is granted to the extent that any defaults existed;

2. Defendant Village is granted leave to file its appearance, instanter;

3. Plaintiff's motion for a court-appointed attorney is denied;

4. Defendant School District's 2--615 motion to dismiss is granted, and this case is hereby dismissed with prejudice;

5. Defendant Village's motion to join in the School District's motion to dismiss is granted, and this case is hereby dismissed with prejudice as to the Village as well;

6. All future court dates in this case are hereby stricken."

We first address what we perceive to be the principal issue in this appeal: whether, in ruling that plaintiff could not state a claim upon which relief could be granted, the trial court correctly construed the applicable law pertaining to hiring preferences for veterans. In determining whether to grant a motion to dismiss, a court must take as true all well-pleaded allegations of fact contained in the complaint and construe all reasonable inferences therefrom in favor of the plaintiff. Vernon v. Schuster, 179 Ill. 2d 338, 341 (1997). The court must determine whether the allegations in the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Vernon, 179 Ill. 2d at 344. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Vernon, 179 Ill. 2d at 344. Because the trial court is not required to weigh facts or determine credibility when deciding a motion to dismiss, our review is de novo. Vernon, 179 Ill. 2d at 344.

Plaintiff claims that, because he is a veteran, he was entitled to an absolute hiring preference for the position for which he applied. He cites Denton v. Civil Service Comm'n, 176 Ill. 2d 144 (1997), Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979), and the Veterans' Preference Act of 1944, ch. 287, 58 Stat. 387 (codified, as amended, in scattered sections of 5 U.S.C.A. (West 1996)), as the sources of the absolute preference. Defendants argue that none of these authorities bestow such a preference upon plaintiff for the position at issue, and that no such preference applies to the position plaintiff sought. We agree with defendants.

We begin by noting that most states, as well as the federal government, give some sort of hiring preference to veterans. Feeney, 442 U.S. at 261, 60 L. Ed. 2d at 876, 99 S. Ct. at 2287. The federal government and most states award veterans additional points on civil service examinations. Feeney, 442 U.S. at 261 n.7, 60 L.Ed. 2d at 876 n.7, 99 S. Ct. at 2287 n.7. Other states will give a veteran a preference over a nonveteran in the case of a tie score. Feeney, 442 U.S. at 261 n.7, 60 L. Ed. 2d at 876 n.7, 99 S. Ct. at 2287 n.7. A few states give "absolute" preferences by ranking all veterans over all nonveterans. Feeney, 442 U.S. at 261 n.7, 60 L.Ed. 2d at 876 n.7, 99 S.Ct. at 2287 n.7.

In Illinois, the legislature has incorporated a veteran's hiring preference in section 8b.7 of the Personnel Code (20 ILCS 415/8b.7 (West 1998)). The Personnel Code applies to "[a]ll offices and positions of employment in the service of the State of Illinois" (20 ILCS 415/4 (West 1998)), with certain exemptions as enumerated in sections 415/4c and 4d (20 ILCS 415/4c, 4d (West 1998)).

Our supreme court has succinctly explained the requirements of the Personnel Code pertaining to veterans' preferences:

"[T]he Personnel Code requires CMS [the Department of Central Management Services] *** to establish a position classification plan for all positions governed by the Personnel Code (20 ILCS 415/8a (West 1994)); to eliminate those who are not qualified for entrance into state service and to discover the relative fitness of those who are qualified (20 ILCS 415/8b.1 (West 1992)); and to establish lists of names of candidates in order of their relative excellence in respective examinations (20 ILCS 415/8b.3 (West 1992)). The Personnel Code further provides that CMS may substitute categories for numerical ratings and establish lists of candidates accordingly. 20 ILCS 415/8b.3 (West 1992). If CMS uses numerical lists, the employing agencies may consider for appointment the three highest applicants on the list. 20 ILCS 415/8b.5 (West 1992). If *** CMS uses categories rather than numerical lists, the employing agency must prefer for appointment the veterans over the nonveterans of the same category. 20 ILCS 415/8b.7(f) (West 1992)." Denton, 176 Ill. 2d at 150-51.

In Denton, the supreme court held that, for positions involving categorical ratings, the State must award veterans an absolute preference over nonveterans of the same category rating. Denton, 176 Ill. 2d at 150.

Plaintiff's reliance on Denton is unavailing. As we have discussed, the section of the Personnel Code at issue in Denton (20 ILCS 415/8b.7(f) (West 1992)) applies only to "offices and positions of employment in the service of the State of Illinois." 20 ILCS 415/4 (West 1998). The State of Illinois was not the employer for the position plaintiff sought. Therefore, section 8b.7(f) and the supreme court's decision in Denton do not apply to plaintiff's claim.

Next, we consider plaintiff's contention that the United States Supreme Court's decision in Feeney established an absolute hiring preference for veterans who apply for any public employment position. After reviewing the Feeney decision, we conclude that it does not stand for the proposition plaintiff suggests. The issue in Feeney was whether a Massachusetts statute that granted an absolute hiring preference to veterans who applied for jobs in Massachusetts' classified civil service violated the equal protection clause of the fourteenth amendment to the United States constitution by discriminating against women. Feeney, 442 U.S. at 259, 60 L. Ed. 2d at 875, 99 S. Ct. at 2285. The Supreme Court held that the Massachusetts statute did not violate the equal protection clause. Feeney, 442 U.S. at 281, 60 L. Ed. 2d at 889, 99 S. Ct. at 2297. Contrary to plaintiff's interpretation, the court did not require all states to give veterans an absolute hiring preference for all public employment positions. In fact, the court noted that "[t]he forms of veterans' hiring preferences vary widely" among the states. Feeney, 442 U.S. at 261 n.7, 60 L. Ed. 2d at 876 n.7, 99 S. Ct. at 2287 n.7. Thus, Feeney does not provide a legal basis for plaintiff's claims.

Plaintiff also relies on the Veteran's Preference Act of 1944, ch. 287, 58 Stat. 387 (codified, as amended, in scattered sections of 5 U.S.C.A. (West 1996)) (Act), as a source of his alleged entitlement to an absolute hiring preference. Plaintiff asserts that the original version of the Act, not its current version, is the basis of his entitlement. This argument is without merit. Congress may amend any statute it has enacted. Manigault v. Springs, 199 U.S. 473, 487, 50 L. Ed. 274, 281, 26 S. Ct. 127, 133 (1905). Congress has amended the Act several times since 1944, and it is a fundamental principle of law that we must give effect to Congress's intent. Consequently, we look to the version of the statute in effect at the time plaintiff applied for the position to determine whether the Act granted plaintiff an absolute hiring preference.

The current federal statute provides that preference will be given to "preference eligibles in certification for appointment, and in appointment, reinstatement, reemployment, and retention, in the competitive service in Executive agencies, permanent or temporary, and in the government of the District of Columbia." 5 U.S.C.A.