Cheli v. Taylorville Community School District 3

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

JOSHUA L. CHELI, )

)

Plaintiff, )

)

v. )

)

TAYLORVILLE CUSD #3, )

BOARD OF EDUCATION ) Case No. 19-cv-03085

OF TAYLORVILLE CUSD #3, )

GREGG FUERSTENAU, )

and CHRIS KUNTZMAN, )

Individually and as Agents of )

TAYLORVILLE CUSD #3, )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on Defendants’ Motion to

Dismiss (d/e 14). Because the facts alleged in Plaintiff Joshua L.

Cheli’s First Amended Complaint and Jury Demand (d/e 13) are

insufficient to permit a reasonable inference that Plaintiff has a

constitutionally protected property interest in his continued

employment with Taylorville CUSD #3 (CUSD #3), the motion is

GRANTED.

I. BACKGROUND

Most of the facts set forth below come from Plaintiff’s First

Amended Complaint. The Court accepts these facts as true in

ruling on Defendants’ Motion to Dismiss. See Tamayo v.

Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

Additional facts come from two exhibits attached to the Motion

to Dismiss. The first exhibit is Article VIII of a Master Agreement

executed by the Board of Education of Taylorville CUSD #3 (the

Board) and Taylorville’s educational support personnel (Master

Agreement). The second exhibit is a portion of CUSD #3’s Policy

Manual detailing the employment policies for educational support

personnel (Policy Manual). The Court may consider these

documents in ruling on Defendants’ Motion to Dismiss because

Plaintiff references the documents, which are central to his claims,

in his First Amended Complaint. See Venture Assocs. Corp. v.

Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)

(“Documents that a defendant attaches to a motion to dismiss are

considered part of the pleadings if they are referred to in the

plaintiff’s complaint and are central to [his] claim.”).

Plaintiff began working for CUSD #3 in September 2014 as a

computer systems administrative assistant. First Amended

Complaint (d/e 13), ¶¶ 8-9, 21. Plaintiff remained employed in that

position until he was terminated on September 28, 2018. Id. ¶ 10.

CUSD #3’s Policy Manual incorporates the Master Agreement

executed by the Board and Taylorville’s Educational Support

Personnel. Id. ¶ 21. Article VIII of the Master Agreement, titled

“Discipline or Dismissal,” provides as follows:

[8.1] An employee may be disciplined, suspended, and/or

discharged for reasonable cause. Grounds for discharge

and/or suspension shall include, but not be limited to,

drunkenness or drinking or carrying intoxicating beverages on

the job, possession or use of any controlled and/or illegal

drug, dishonesty, insubordination, incompetency, or

negligence in the performance of duties.

[8.2] A conference with the employee shall be held prior to

any suspension and/or discharge.

[8.3] An employee shall have the right to a representative of

his/her choice in any meeting which may result in suspension

and/or discharge.

[8.4] A written explanation for the suspension and/or

discharge shall be given the employee so affected.

[8.5] Upon initial employment with Taylorville Community

Unit School District #3, non-certified employees will serve a

one hundred twenty (120) day probationary period. During

the period, the probationary non-certified employee will be an

at-will employee. If the employee’s work is deemed

unsatisfactory by the Administration and the Board during

this period, the Board, at its discretion, may terminate the

employment.

Master Agreement (d/e 14-1), at 2.

CUSD #3’s Policy Manual includes a specific provision

governing at-will employment for educational support personnel.

The provision, titled “Employment At-Will,” states as follows:

Unless otherwise specifically provided, District employment is

at-will, meaning that employment may be terminated by the

District or employee at any time for any reason, other than a

reason prohibited by law, or no reason at all. Nothing in

School Board policy is intended or should be construed as

altering the employment at-will relationship.

Exceptions to employment at-will may include employees who

are employed annually, have an employment contract, or are

otherwise granted a legitimate interest in continued

employment. The Superintendent is authorized to make

exceptions to employing non-licensed employees at-will but

shall maintain a record of positions or employees who are not

at-will.

Policy Manual (d/e 14-2), at 2.

On September 28, 2018, Plaintiff was given 20 to 25 minutes

to report to his supervisor for a meeting. First Amended Complaint,

¶ 10. Plaintiff was not informed of the subject of the meeting, nor

was Plaintiff informed he could bring someone to the meeting to

speak on his behalf. Id. ¶¶ 10, 13.

CUSD #3 Superintendent Gregg Fuerstenau and Plaintiff’s

supervisor, Director of Computer Services Chris Kuntzman, were

both present at the meeting, which lasted only a few minutes. Id.

¶¶ 11-12. During the meeting, Plaintiff was informed he was being

fired for alleged sexual harassment of a female student who

reported that, about three weeks prior, Plaintiff had made her feel

uncomfortable. Id. ¶ 12. Plaintiff denied any misconduct; however,

Fuerstenau and Kuntzman told Plaintiff that there was nothing he

could say to change things, that his termination of employment was

a foregone conclusion, and that Plaintiff should resign or accept the

consequences, i.e., termination of employment. Id.

On October 12, 2018, Plaintiff received, via certified mail, a

Notice of Termination from the Board that was dated October 9,

2018, but retroactive to September 28, 2018. Id. ¶ 14. The Notice

of Termination stated that Plaintiff’s termination was based on a

resolution passed during a Board meeting held on October 9, 2018.

Id. ¶¶ 15-16. Plaintiff never received written notice of the time and

date of the Board meeting held on October 9, 2018, nor did he

receive written notice of the charges against him or the evidence the

Board was to consider during the meeting. Id. ¶¶ 16-17.

The Notice of Termination that Plaintiff received makes no

mention of sexual harassment. Id. ¶ 18. The Notice of Termination

states, in pertinent part, as follows: “The basis or grounds for

discharge include incompetence. A copy of the written report

submitted by Dr. Fuerstenau, dated September 28, 2018, setting

forth some of the reasons for discharge, is available to you upon

request.” Id. ¶ 19. On October 29, 2018, Plaintiff’s counsel

requested a copy of the written report submitted by Fuerstenau, to

no avail. Id. ¶ 20.

On July 23, 2019, Plaintiff filed his two-count First Amended

Complaint against CUSD #3, the Board, and Fuerstenau and

Kuntzman in their individual capacities and as agents of CUSD #3.

Plaintiff brings his action under 42 U.S.C. § 1983, seeking to

remedy Fourteenth Amendment procedural due process violations

by Defendants in terminating Plaintiff’s employment.

In Count I, Plaintiff alleges that because he has a protected

property interest in his employment, Defendants violated his

procedural due process rights when they terminated him and failed

to provide adequate notice of the charges against him, an

explanation of the evidence against him, and an impartial hearing

with the opportunity to explain his side of the story. Id., ¶ 24.

Fuerstenau and Kuntzman failed to address any of the reasons for

Plaintiff’s termination that were later cited by the Board in its

Resolution and Notice of Termination. Id. ¶ 25. Plaintiff was denied

any opportunity to address the vague, unsubstantiated reasons for

his termination. Id. ¶ 26.

In Count II, Plaintiff alleges that because he has a protected

property interest in his employment, Defendants violated his

procedural due process rights when they terminated him and failed

to provide notice of the Board hearing held on October 9, 2018; an

adequate explanation of the charges against him; and an impartial,

full, and fair hearing by the Board to address the reasons for his

termination as provided by the Board in its Resolution and Notice of

Termination. Id. ¶¶ 30-31. Fuerstenau and Kuntzman presented

various derogatory notes and papers to the Board, ex parte, without

Plaintiff’s prior knowledge or opportunity to rebut any unfavorable

information. Id. ¶ 32. CUSD #3 and Fuerstenau continue to

withhold information concerning the closed session of the Board,

including any ex parte notes and papers that were presented to the

Board. Id. ¶ 33.

On August 6, 2019, Defendants filed their Motion to Dismiss

and a Memorandum of Law in Support (d/e 15). Defendants seek

to have Plaintiff’s claims dismissed for failure to state a claim upon

which relief may be granted pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. Specifically, Defendants argue that

Plaintiff has failed to allege any facts establishing that he had a

property interest in his continued employment with CUSD #3 that

would entitle him to due process with respect to his termination.

On August 12, 2019, Plaintiff filed a Response to Defendants’

Motion to Dismiss (d/e 16). Plaintiff asserts that he has a protected

property interest in his continued employment with CUSD #3

pursuant to the plain language of Article VIII of the Master

Agreement.

II. LEGAL STANDARD

A complaint must “state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). “Factual allegations are accepted

as true at the pleading stage, but allegations in the form of legal

conclusions are insufficient to survive a Rule 12(b)(6) motion.”

Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014)

(internal quotation omitted). The court must draw all inferences in

favor of the non-moving party. In re marchFIRST Inc., 589 F.3d

901, 904 (7th Cir. 2009).

III. ANALYSIS

The Due Process Clause of the Fourteenth Amendment

provides: “[No State shall] deprive any person of life, liberty or

property, without due process of law.” U.S. CONST. amend. XIV, §

1. However, “the procedural protections of the Due Process Clause

[are only] triggered [when] state action implicates a constitutionally

protected interest in life, liberty, or property.” Lekas v. Briley, 405

F.3d 602 at 607 (7th Cir. 2005). In order for a plaintiff “to

demonstrate a procedural due process violation of a property right,

the plaintiff must establish that there is (1) a cognizable property

interest; (2) a deprivation of that property interest; and (3) a denial

of due process.” Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010).

The Due Process Clause protects property interests but does

not create them. Therefore, a plaintiff claiming a procedural due

process violation must plausibly allege that he has a cognizable

property interest established by “an independent source such as

state law—rules or understandings that secure certain benefits and

that support claims of entitlement to those benefits.” Frey Corp. v.

City of Peoria, 735 F.3d 505, 509-10 (7th Cir. 2013) (quoting Bd. of

Regents of State Colls. v. Roth, 408 U.S. 564-577 (1972)). In the

employment context, “a protected property interest . . . can arise

from a statute, regulation, municipal ordinance, or an express or

implied contract.” Covell v. Menkis, 595 F.3d 673, 675-76 (7th Cir.

2010).

Because Plaintiff was employed in Illinois, the Court looks to

Illinois law to determine whether he has a protected property

interest in his continued employment. See Bishop v. Wood, 426

U.S. 341, 344 (1976) (“The sufficiency of a claim of entitlement

must be decided by reference to state law”). In Illinois, it is

presumed that “an employment relationship without a fixed

duration is terminable at will by either party.” Duldulao v. Saint

Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 317 (Ill. 1987). This

presumption “can be overcome by demonstrating that the parties

contracted otherwise.” Id. at 318. “At-will employees may generally

be discharged for any reason or for no reason at all.” Pantoja v.

Holland Motor Exp., Inc., 965 F.2d 323, 329 (7th Cir. 1992). “A

public employee who may be terminated only for cause has a

property interest in continued employment.” Flaningam v. County

of Winnebago, 243 F. App’x 171, 174 (7th Cir. 2007).

In the present case, Plaintiff’s employment is presumed to be

at-will because he has not alleged that his employment was for a

fixed duration. Plaintiff’s attempt to adequately plead that he has a

protected property in continued employment relies on two

documents—the Master Agreement and CUSD #3’s Policy Manual.

However, the provisions of these documents, even taken together,

fail to plausibly indicate that Plaintiff could be terminated from his

employment with CUSD #3 only for cause.

Plaintiff’s argument relies primarily on Section 8.5 of the

Master Agreement, which states as follows:

Upon initial employment with Taylorville Community

Unit School District #3, non-certified employees will serve

a one hundred twenty (120) day probationary period.

During the period, the probationary non-certified

employee will be an at-will employee. If the employee’s

work is deemed unsatisfactory by the Administration and

the Board during this period, the Board, at its discretion,

may terminate the employment.

Master Agreement, at 2. Plaintiff argues that the plain meaning of

this provision grants Plaintiff a property interest in continued

employment with CUSD #3 because he completed his 120-day

probationary period. Response (d/e 16), at 1-2.

However, under Illinois law, “[t]he mere presence of a

probationary period does not by implication create an enforceable

property right to continued employment for nonprobationary

employees.” Cromwell v. City of Momence, 713 F.3d 361, 364 (7th

Cir. 2013). Provisions in employment manuals regarding

probationary and non-probationary employees can create a

protected property interest “but only when coupled with other

language independently suggesting an expectation of continued

employment.” Id. at 365.

None of the other provisions of the Master Agreement

independently suggest that Plaintiff has a protected property

interest in continued employment. Section 8.1 of the Master

Agreement provides that an employee may be disciplined,

suspended, or discharged for reasonable cause and provides

examples of grounds justifying suspension or discharge. This

permissive language does not create a property interest or a

promise of continued employment. See Flaningam, 243 F. App’x at

174 (“Moreover, we have held that permissive language like that

used in § 62-291(b) (‘may be cause’) generally does not create an

enforceable property right.”); Border v. City of Crystal Lake, 75 F.3d

270, 275 (7th Cir. 1996) (“Similarly, the fact that Crystal Lake has

decided to give specific warning that certain behaviors . . . will be

punished, perhaps even result in termination, is no limitation on its

power to punish for other reasons (or indeed to terminate for no

reason at all, since the employment is at will); Lashbrook v.

Oerkfitz, 65 F.3d 1339, 1347 (7th Cir. 1995) (holding that language

in a policy manual stating that an employee could be dismissed “for

just cause” did not mean that an employee could be dismissed for

only just cause).

Sections 8.2 through 8.4 entitle certain employees of CUSD #3

to a conference prior to a suspension or discharge, the presence of a

representative at any meeting that may result in a suspension or

discharge, and a written explanation for any suspension or

discharge. But these procedures do not create a property interest

or a promise of continued employment. See Moulton v. Vigo

County, 150 F.3d 801, 804-05 (7th Cir. 1998) (“The mere fact that

an employee is entitled to a hearing before [he] is terminated...does

not establish that [he] has a property right in [his] job.”). Plaintiff

must show that he is entitled to continued employment, not to

procedures related to suspension and termination of employment.

Flaningam, 243 F. App’x at 174; see also Campbell v. City of

Champaign, 940 F.2d 1111, 1113 (7th Cir. 1991) (“[A] contract that

creates merely a right to procedure does not create a property right

within the meaning of the due process clause.”).

The Master Agreement provides that an employee must serve a

120-day probationary period and is an at-will employee during that

time. But such a provision is insufficient to establish that the

employee has a property right in continued employment after the

probationary period ends, and none of the other cited provisions of

the Master Agreement suggest an expectation of continued

employment. The language of the Master Agreement alone does not

plausibly suggest that Plaintiff has a property interest in continued

employment with CUSD #3.

That leaves CUSD #3’s Policy Manual as a potential source of

Plaintiff’s alleged right to continued employment. Under Illinois

law, an employee handbook or other policy statement may create a

valid contract for continued employment when three conditions are

present: (1) “the language of the policy statement [contains] a

promise clear enough that an employee would reasonably believe

that an offer has been made”; (2) “the statement [was] disseminated

to the employee in such a manner that the employee [was] aware of

its contents and reasonably believ[ed] it to be an offer”; and (3) “the

employee accept[ed] the offer by commencing or continuing to work

after learning of the policy statement.” Duldulao, 505 N.E.2d at

318.

The Policy Manual promulgated by CUSD #3 does not contain

a promise clear enough that an employee would believe that an offer

of anything other than at-will employment was made. The Court,

as it must, accepts as true the allegation that the Policy Manual

incorporates the provisions of Article VIII of the Master Agreement.

As discussed above, those provisions alone do not grant Plaintiff a

property interest in continued employment with CUSD #3. So

Plaintiff needs some provision in the Policy Manual reasonably

indicating that he was granted a right to continued employment.

The provisions of the Policy Manual contain no such promise,

however. Rather, the Policy Manual informs each employee that

“[n]othing in School Board policy is intended or should be

construed as altering the employment at-will relationship.” Policy

Manual, at 2. This disclaimer defeats Plaintiff’s attempt to establish

a property interest in continued employment through CUSD #3’s

Policy Manual. See Border, 75 F.3d at 273 (“Illinois courts have

recognized, however, that a disclaimer within an employee

handbook can be sufficient to show that no ‘clear promise’ of

continuing employment was made, and thus that the handbook did

not create a legitimate claim of entitlement to employment.”).

III. CONCLUSION

Because Plaintiff Joshua L. Cheli has not sufficiently plead a

constitutionally protected property interest in his continued

employment with Taylorville CUSD #3, Defendants’ Motion to

Dismiss (d/e 14) is GRANTED. Plaintiff’s First Amended Complaint

and Jury Demand (d/e 13) is DISMISSED WITHOUT PREJUDICE.

Plaintiff may file a second amended complaint by Friday, June 12,

2020. If Plaintiff does not file a second amended complaint by that

date, the dismissal will automatically convert to a dismissal with

prejudice.

ENTER: May 29, 2020

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE