Dunn v. Schmitz

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

KENNETH DUNN, )

)

Plaintiff, )

)

v. ) Case No. 16-3308

)

LEO SCHMITZ, JOANN JOHNSON )

And ISAIAH VEGA, )

)

Defendants. )

OPINION AND ORDER

SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:

Before the Court is Defendants Leo Schmitz’, Joann

Johnson’s, and Isaiah Vega’s (“Defendants”) Motion for Summary

Judgment (d/e 20). Defendants have shown that, when the

undisputed material facts are viewed in the light most favorable to

Plaintiff Kenneth Dunn, Defendants are entitled to judgment as a

matter of law. Defendants’ Motion (d/e 20) is, therefore, GRANTED.

I. FACTS

The Court draws the following facts from the parties’ Local

Rule 7.1(D)(1)(b) statements of undisputed material facts. The

Court discusses any material factual disputes in its analysis.

Immaterial facts or factual disputes are omitted. Any fact

submitted by any party that was not supported by a citation to

evidence will not be considered by the Court. See Civil LR

7.1(D)(2)(b)(2). In addition, if any response to a fact failed to

support each allegedly disputed fact with evidentiary

documentation, that fact is deemed admitted. Id.

Plaintiff Kenneth Dunn began working for the Illinois State

Police (“ISP”) in 1990. In 2011, Plaintiff was assigned to work at the

Illinois Gaming Board under an inter-governmental agreement. In

September 2014, Plaintiff was placed on restricted duty after

Plaintiff’s superiors were told that Plaintiff was the subject of a

federal investigation.1 While in restricted status, Plaintiff was still

paid but was prohibited from performing other police functions.

The letter notifying Plaintiff of his restricted status was copied only

to those within his chain of command, the ISP legal office, and the

Administrative Services Bureau. The letter also was included in

Plaintiff’s personnel file.

1 While the parties dispute whether Plaintiff was the subject of an investigation at the time, this

dispute is immaterial to the Court’s decision because, as explained in the Court’s Analysis,

Plaintiff cannot prove one of the three essential elements of Plaintiff’s claim.

Plaintiff remained on restricted status from September 2014

until his retirement on December 31, 2016. Plaintiff was notified in

January 2017 that he would be listed as retiring “not in good

standing” because he retired while still under restricted status.

Plaintiff appealed the denial of retirement in good standing to

Defendant Schmitz, but that appeal was denied in February 2017.

Plaintiff then filed a Complaint in November 2016, alleging

Defendants deprived Plaintiff of liberty interests guaranteed by the

Fourteenth Amendment and seeking a hearing and opportunity to

clear his name. Defendants now move for summary judgment

under Federal Rule of Civil Procedure 56.

II. LEGAL STANDARD

Summary judgment is proper if the movant shows that no

genuine dispute exists as to any material fact and that the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The movant bears the initial responsibility of informing the Court of

the basis for the motion and identifying the evidence the movant

believes demonstrates the absence of any genuine dispute of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

“[S]ummary judgment is the ‘put up or shut up’ moment in a

lawsuit, when a party must show what evidence it has that would

convince a trier of fact to accept its version of events.” Johnson v.

Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).

On that evidence, the Court must determine whether a

genuine dispute of material facts exists. A genuine dispute of

material fact exists if a reasonable trier of fact could find in favor of

the nonmoving party. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir.

2012). When ruling on a motion for summary judgment, the Court

must construe facts in the light most favorable to the nonmoving

party and draw all reasonable inferences in the nonmoving party's

favor. Woodruff v. Mason, 542 F.3d 545, 550 (7th Cir. 2008).

III. ANALYSIS

In his Complaint, Plaintiff alleges that Defendants violated

Plaintiff’s occupational liberty interest under the Fourteenth

Amendment when Defendant’s declined to issue a letter of good

standing when Plaintiff retired from the Illinois State Police.

Defendants argue that they are entitled to judgment as a matter of

law because Plaintiff cannot prove essential elements of Plaintiff’s

liberty interest claim. Specifically, Defendants assert that Plaintiff

cannot show that the information Plaintiff states was stigmatizing

was publicly disclosed.

The Due Process Clause of the Fourteenth Amendment

guarantees that no “State shall deprive any person of life, liberty, or

property, without due process of law.” The Due Process Clause

imposes “constraints on governmental decisions which deprive

individuals of” interests in liberty. Mathews v. Edlridge, 424 U.S.

319, 332 (1976). This extends to a government employee’s liberty

interest in seeking employment following termination from

government employment. Bd. of Regents v. Roth, 408 U.S. 564,

573 (1972). Such interests are implicated where the government, in

terminating the employee, “‘makes any charge against [the

employee] that might seriously damage [his] standing and

associations in the community’ or ‘imposes on [the employee] a

stigma or other disability that forecloses [his] freedom to take

advantage of other employment opportunities.’” Id. (cleaned up).

To prove a government employer violated a plaintiff’s

occupational liberty interest, the plaintiff must prove “(1) he was

stigmatized by the employer's actions; (2) the stigmatizing

information was publicly disclosed; and (3) he suffered a tangible

loss of other employment opportunities as a result of the public

disclosure.” Dupuy v. Samuels, 397 F.3d 493, 509–10 (7th Cir.

2005). Unlike a defamation action in which any public disclosure

gives rise to a claim, a liberty-interest plaintiff must show that the

stigmatizing information was broadly disclosed. Ratliff v. City of

Milwaukee, 795 F.2d 612, 627 (7th Cir. 1986) (“In a common law

defamation action, any publication of false and defamatory material

might be sufficient, but in the context of the liberty interest

protected by the Fourteenth Amendment, [Plaintiff] was required to

show broader publication.”) Moreover, the stigmatizing information

must have actually been disclosed to make out a liberty interest

claim—a plaintiff may not rely on the possibility of disclosure.

Johnson v. Martin, 943 F.2d 15, 16–17 (7th Cir. 1991).

Defendant is entitled to judgment as a matter of law here

because Plaintiff cannot show that any allegedly stigmatizing

information was publicly disclosed. Plaintiff only argues in his

Response that Plaintiff’s not-in-good-standing status has the

potential of being made public, not that it actually has been made

public. See Pl.’s Resp. (d/e 22) p. 19 (Arguing that Plaintiff’s status

“could be accessed through a FOIA request” and “any potential

hiring employer is going to seek that information” and the

information “could be easily disclosed.” (emphasis added)). But that

argument was expressly rejected by the Seventh Circuit in Johnson

v. Martin. 943 F.2d 15. There, the Seventh Circuit held that a

plaintiff in a case claiming a deprivation of occupational liberty

interests must show actual publication to prove the claim and

rejected the likelihood-of-public-disclosure argument Plaintiff now

advances. Johnson, 943 F.2d at 16–17. Specifically, the Johnson

plaintiff argued that the fact that stigmatizing information in the

plaintiff’s personnel file—there, drug test results—remained

accessible to officers within the plaintiff’s chain of command meant

that the information could still be made public. Id. The plaintiff

then argued that the mere likelihood of public disclosure meant

that the public disclosure element of his liberty interest claim was

satisfied. Id. The Seventh Circuit, however, disagreed, holding that

“the mere existence of damaging information in Johnson's

personnel file cannot give rise to a due process challenge” and that

“in order to succeed on a constitutional defamation claim the

allegedly defamatory statement must actually be “made public.” Id.

at 17.

In this case, while Defendant concedes that Plaintiff’s not-in-

good-standing status has the potential to be shared with other

Illinois state agencies, Plaintiff, like the plaintiff in Johnson, has not

provided evidence or stated facts that would allow a reasonable trier

of fact to conclude that Plaintiff’s not-in-good-standing status was

actually publicly disclosed. As a result, Plaintiff cannot show that a

reasonable fact finder could conclude that Defendants violated his

occupational liberty interests. Because Plaintiff cannot show this

essential element of his occupational liberty interest claim, the

Court need not address the other elements. See Johnson, 943 F.2d

at 16 (dismissing case for failure to claim public disclosure and not

addressing other elements).

IV. CONCLUSION

On the undisputed material facts, and when the inferences are

viewed in the light most favorable to Plaintiff, Defendants have

shown that they are entitled to judgment as a matter of law.

Accordingly, Defendants’ Motion for summary Judgment (d/e 19) is

GRANTED. The Clerk is DIRECTED to enter judgment in favor of

Defendants and against Plaintiff. All remaining deadlines and

settings are terminated. This case is closed.

IT IS SO ORDERED.

ENTERED: March 31, 2022.

FOR THE COURT

/s/ Sue E. Myerscough____________

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE