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. ) Case No. 19-cv-03085

)

TAYLORVILLE CUSD #3, BOARD )

OF EDUCATION OF TAYLORVILLE )

CUSD #3, GREGG FUERSTENAU, )

and CHRIS KUNTZMAN, )

individually and as agents of )

TAYLORVILLE CUSD #3, )

)

Defendants. )

OPINION AND ORDER

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

Before the Court is Defendant Taylorville CUSD #3, Board of

Education of Taylorville CUSD #3, Gregg Fuerstenau, and Chris

Kuntzman, individually and as agents of Taylorville CUSD #3,

(“Defendants”) Motion for Summary Judgment (d/e 44) and Plaintiff

Joshua L. Cheli’s Cross-Motion for Summary Judgment (d/e 45).

For the following reasons, Defendants’ Motion for Summary

Judgment (d/e 44) is GRANTED and Plaintiff’s Cross-Motion for

Summary Judgment (d/e 45) is DENIED.

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 Joshua Cheli began employment in September 2014

as a computer systems administrative assistant for the Taylorville

Community Unit School District #3 (CUSD #3).

On September 28, 2018, Plaintiff met with his supervisor,

Defendant Chris Kuntzman, and CUSD #3 Superintendent

Defendant Gregg Fuerstenau. During the meeting, Plaintiff was

informed that he was being fired because a female student had

reported that Plaintiff made her feel uncomfortable. Plaintiff denied

any misconduct; however, Defendants informed Plaintiff that there

was nothing he could say to change things, that his termination of

employment was a foregone conclusion, and that Plaintiff could

resign, or he would be terminated. Plaintiff was not informed that

he could bring someone to the meeting to speak on his behalf.

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

Notice of Termination from the Board of Education of CUSD #3 (the

Board) dated October 9, 2018, but retroactive to September 28,

2018. The Notice of Termination was based on a resolution of the

Board, which authorized the President of the School Board or

Superintendent of the School District to serve Plaintiff’s Notice of

Termination.

Article I of the Master Agreement between the Board and

Taylorville Educational Support Personnel in effect at the time

Plaintiff’s employment was terminated recognized the Taylorville

District 3 Educational Service Personnel IEA/NEA as the sole and

exclusive negotiating agent for full-time cooks, custodians,

secretaries, and aids (the “collective bargaining unit”). Article III

provided a grievance procedure for alleged violations of the

provisions of the Master Agreement, including the right to

representation. Article IV and VII required an employee signature

on an authorization form for membership payroll deductions, or

that employees who did not join the Association pay a fair share fee,

to be subject to the Master Agreement. Article VIII required a

conference with the right to a representative prior to any

suspension or discharge. The Master Agreement also contained the

salary schedules for all personnel subject to the Master Agreement.

The Educational Support Personnel Policy indicates that

employees not covered by a current applicable bargaining

agreement will have their salary and wages determined by the

Board.

Plaintiff’s salary for 2018 was $34,953.00. Plaintiff did not

provide his signature on an authorization form for deductions as

required for members of the collective bargaining unit, did not have

membership dues deducted from his paycheck, and did not pay a

fair share fee. Plaintiff’s salary for the 2018-2019 school year was

not included in the salary schedules in the Master Agreement.

Plaintiff did not submit a grievance pursuant to Article III of the

Master Agreement because of the termination of his employment.

On April 1, 2019, Plaintiff filed a two-count Complaint (d/e 1)

against Defendants, alleging that Defendants violated his

procedural due process rights under the Fourteenth Amendment

when terminating his employment with the Taylorville Community

School District #3 (the “District”). On May 31, 2019, Defendants

filed a Motion to Dismiss (d/e 8) Plaintiff’s Complaint, arguing that

Educational Support Personnel like Plaintiff were at-will employees

with no property interest in his employment with the District, and

thus not entitled to due process rights. On July 22, 2019, the

Court entered a text order granting Defendants’ Motion to Dismiss

with leave for Plaintiff to file an Amended Complaint on or before

August 5, 2019. On July 23, 2019, Plaintiff filed his First Amended

Complaint, alleging that he had a protected property interest in his

employment in accordance with Article VIII of the Master

Agreement. d/e 13, ¶ 22. On August 16, 2019, Defendants filed a

Motion to Dismiss (d/e 14) and Memorandum of Law in Support

(d/e 15), arguing that Plaintiff had no property interest in his

employment under Illinois law or by a clearly implied promise of

continued employment. On May 29, 2022, the Court granted

Defendants’ Motion to Dismiss the Amended Complaint with leave

for Plaintiff to file a Second Amended Complaint on or before June

12, 2020 (d/e 18). On June 16, 2020, Plaintiff filed a Notice of

Appeal. On February 25, 2021, the Seventh Circuit issued a

Mandate reversing the ruling of the Court and remanding the case

for further proceedings consistent with its Opinion. d/e 24; Cheli v.

Taylorville Cmty. Sch. Dist., 986 F.3d 1035 (7th Cir. 2021). The

Seventh Circuit found that the collective bargaining agreement

established that Plaintiff could not be terminated except “for

reasonable cause,” which created a protected property interest for

which Plaintiff was entitled to due process. Id. at 1037.

On April 25, 2022, Defendants filed their summary judgment

on Plaintiff’s claims (d/e 44). On May 15, 2022, Plaintiff filed his

Response and cross-motion for summary judgment (d/e 45). On

June 6, 2022, Defendant filed a Reply to Plaintiff’s Cross Motion

(d/e 46).

II. JURISDICTION AND VENUE

This Court has subject matter jurisdiction because Plaintiff’s

claims arise under 42 U.S.C. § 1983, which is a federal statute. See

28 U.S.C. ' 1331 (AThe district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws,

or treaties of the United States@). Venue is proper because the

events giving rise to Plaintiff’s claims occurred in Taylorville, Illinois,

which is located within the boundaries of the Central District of

Illinois. See 28 U.S.C. § 1391(b)(2) (stating that a civil action may

be brought in “a judicial district in which a substantial part of the

events or omissions giving rise to the claim occurred”).

III. 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). 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). “At summary judgment, ‘a court

may not make credibility determinations, weigh the evidence, or

decide which inferences to draw from the facts; these are jobs for a

factfinder.’” Paz v. Wauconda Healthcare & Rehab. Ctr., LLC, 464

F.3d 659, 664 (7th Cir. 2006).

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);

Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013)

(explaining that Rule 56 “imposes an initial burden of production on

the party moving for summary judgment to inform the district court

why a trial is not necessary” (internal citation omitted)). After the

moving party does so, the non-moving party must then go beyond

the pleadings and “set forth specific facts showing that there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (quotation and footnotes omitted).

The above-stated standards for summary judgment remain

unchanged when considering cross-motions for summary judgment:

the Court must “construe all inferences in favor of the party against

whom the motion under consideration is made.” Oneida Nation v.

Vill. of Hobart, Wis., 371 F. Supp. 3d 500, 508 (E.D. Wis. 2019)

(quoting Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 561–62 (7th

Cir. 2002)).

IV. ANALYSIS

A. Whether Plaintiff is subject to the Master Agreement and a

member of the collective bargaining unit is a fact issue

arising for the first time post-remand.

The law of the case doctrine provides that “when a court

decides upon a rule of law, that decision should continue to govern

the same issues in subsequent stages in the same case.” Flynn v.

FCA US LLC, 39 F.4th 946, 953 (7th Cir. 2022) (citing Arizona v.

California, 460 U.S. 605, 618 (1983)). The doctrine bars arguments

for reconsideration that are not based on intervening authority, new

evidence, or other changed circumstances that justify waiver of the

doctrine. Vidimos, Inc. v. Wysong Laser Co., Inc., 179 F.3d 1063,

1065 (7th Cir. 1999). However, the law of the case doctrine only

applies to issues that have been resolved, generally leaving a

district judge free to address issues that the appellate court left

undecided. Moore v. Anderson, 222 F.3d 280, 282 (7th Cir. 2000).

A district court considering a case on remand may only address “(1)

the issues remanded, (2) issues arising for the first time on remand,

or (3) issues that were timely raised before the district and/or

appellate courts but which remain undecided.” United States v.

Morris, 259 F.3d 894, 898 (7th Cir. 2001).

Plaintiff argues that the law of the case doctrine bars the

Court from reconsidering the issue of the applicability of the Master

Agreement to Plaintiff because the Defendants waived the issue on

appeal. On appeal, the Seventh Circuit reversed this Court’s

dismissal without prejudice and remanded the case for further

proceedings consistent with the opinion that determined that the

Master Agreement created a protected property interest in Plaintiff’s

employment (d/e 24). The Seventh Circuit noted that “Cheli and

the defendants agree that the only issue on appeal is whether the

Master Agreement gave Cheli a protected property interest in his

employment.” Cheli v. Taylorville Cmty. Sch. Dist., 986 F.3d 1035,

1039 (7th Cir. 2021). The question on appeal was “whether the

Master Agreement provided [that] the District could only terminate

Cheli for cause.” Id.

The Court finds that the applicability of the Master Agreement

to Plaintiff is an issue arising for the first time post-remand, and

that the Court may address it. On appeal, the Court granted

Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint

and Memorandum of Law in Support. “The purpose of a 12(b)(6)

motion to dismiss is to test the sufficiency of the complaint, not to

resolve the case on the merits.” Devine v. Robinson, 131 F. Supp.

2d 963, 967 (N.D. Ill. 2001). When evaluating a 12(b)(6) motion, the

court must accept as true all factual allegations in the complaint

and draw all reasonable inferences in the plaintiff’s favor.

Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 493 (7th Cir.

1998).

In ruling on the 12(b)(6) motion, the Court did not, and did not

have the power to, make factual findings. See Szabo v. Bridgeport

Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001) (“The reason why

judges accept a complaint’s factual allegations when ruling on

motions to dismiss under Rule 12(b)(6) is that a motion to dismiss

tests the legal sufficiency of a pleading. Its factual sufficiency will

be tested later—by a motion for summary judgment under Rule 56,

and if necessary by trial.”). When the Court granted Defendants’

Motion to Dismiss Plaintiff’s First Amended Complaint, the Court

did so accepting as true the facts in Plaintiff’s First Amended

Complaint, including Plaintiff’s allegation that his protected

property interest stemmed from the Master Agreement. See d/e 18.

Moreover, the Court’s ruling was made prior to the parties

conducting discovery.

Compliance with the Seventh Circuit’s decision requires the

Court to find that the Master Agreement created a protected

property interest in Plaintiff’s employment. However, the Seventh

Circuit did not address the threshold question of whether the

Master Agreement applied to Plaintiff. Instead, it accepted as true

all well-pleaded facts, including the applicability of the Master

Agreement to Plaintiff, as required by Rule 12(b)(6). Defendants do

not seek to re-litigate the issue of whether the Master Agreement

gives Plaintiff a protected property interest in his employment.

Rather, Defendants argue that, as a fact issue, Plaintiff is not

subject to the Master Agreement in the first place. Whether Plaintiff

was a party to the Master Agreement and a member of the collective

bargaining unit is question of fact arising for the first time post-

remand. Therefore, Defendants may raise the issue on summary

judgment.

B. The affidavits of Defendants Fuerstenau and Kuntzman do

not properly authenticate the Non-Bargaining Unit

personnel sheets, but the affidavits themselves are

material and arise from the Defendants’ personal

knowledge.

As a preliminary matter, Plaintiff argues that the Court should

not rely on the affidavits of Defendants Fuerstenau, Superintendent

of the District, and Kuntzman, Plaintiff’s supervisor. The Court

addresses each argument in turn.

1. The affidavits of Defendants Fuerstenau and Kuntzman do

not properly authenticate the Non-Bargaining Unit

personnel sheets.

Plaintiff argues that the affidavits of Fuerstenau and

Kuntzman are “self-serving” and do not properly authenticate the

Non-Bargaining Unit personnel sheets submitted by Defendants.

See Ex. 5. The personnel sheets contain multiple tables

purportedly listing positions within the District that are classified

as non-bargaining salaries or positions not a member to the

collective bargaining unit. Id. Plaintiff also argues that the

personnel sheets are external to the four corners of the Master

Agreement and are specifically prohibited by Article XI: “The terms

and conditions set forth in this Agreement represent the full and

complete understanding of the parties. The terms and conditions

may be modified only through the written mutual consent of the

parties.” The Court need not decide that question, however,

because as discussed below, the Court finds that Plaintiff is not a

party to the Master Agreement, so the contract does not apply to

him.

Federal Rule of Civil Procedure 56(c)(2) provides that “[a] party

may object that the material cited to support or dispute a fact

cannot be presented in a form that would be admissible in

evidence.” Plaintiff objects that the information contained in the

Non-Bargaining Unit personnel sheets is hearsay and does not

qualify for the business record exception to the hearsay rule.

Federal Rule of Civil Procedure 56(e) states that “[s]upporting

and opposing affidavits shall be made on personal knowledge, shall

set forth facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matters

stated therein.” A document is admissible as a business record

under Federal Rule of Evidence 803(6) if: “1) the acts recorded

therein were reported by a person with knowledge, 2) it was the

regular practice of the [business] as a regularly conducted business

activity to record such acts, 3) the acts were recorded at or near the

time of their occurrence, and 4) the documents are properly

authenticated ‘unless the source of information or the method or

circumstances of preparation indicate lack of trustworthiness.’”

Wheeler v. Sims, 951 F.2d 796, 802 (7th Cir. 1992). Normally, to

demonstrate such trustworthiness and reliability at the summary

judgment stage, the party seeking to offer the business record must

attach an affidavit sworn to by a person who would be qualified to

introduce the record as evidence at trial, for example, a custodian

or anyone qualified to speak from personal knowledge that the

documents were admissible business records.” Woods v. City of

Chi., 234 F.3d 979, 988 (7th Cir. 2000).

An exception to the rule applies when the party challenging

the document as admissible evidence has itself relied on that

document or “otherwise conceded the accuracy of the documents.”

Thanongsinh v. Bd. of Educ., 462 F.3d 762, 778 (7th Cir. 2006)

(quoting Woods, 234 F.3d at 988). It is within the discretion of the

district court to determine whether such evidence should be

admitted. See Pierce v. Atchison Topeka & Santa Fe Ry. Co., 110

F.3d 431, 444 (7th Cir. 1997). “[A] foundation for admissibility may

at times be predicated on judicial notice of the nature of the

business and the nature of the records as observed by the court.”

Mehta v. Council for Jewish Elderly, No. 95 C 1156, 1996 WL

272520, at *5 (N.D. Ill. May 20, 1996).

Exhibit 4 contains a list of positions in the District considered

non-bargaining unit personnel, or non-members of the collective

bargaining unit. d/e 44. The Exhibit does not indicate when it was

made and does not identify its creator. The Court agrees with the

Plaintiff and finds that the Non-Bargaining Unit personnel sheets

are inadmissible as business records because Defendants have not

laid any foundation for their admission. In their affidavits,

Fuerstenau and Kuntzman both state that “[t]he records referred to

in the motion for Summary Judgment are true and accurate copies

of [Plaintiff’s] employee file and District policies, kept in the ordinary

course of business” and that the statements made in the affidavits

are within their “personal knowledge.” d/e 44, Ex. 3, Ex. 5. While

the affidavits state that the personnel sheets were kept in the

ordinary course of business, they contain no statements as to

whether it was the regular practice of the District to make such

records or if the personnel sheets were made at or near the time by,

or from information provided, persons with knowledge of the activity

reflected in the sheets. Defendants have not laid a proper

foundation through either affidavit to admit the personnel sheets

under the business records exception.

Accordingly, without proper authentication, the personnel

sheets are inadmissible hearsay. See Campbell v. Coca-Cola

Enterprises, Inc., No. 11 C 1674, 2012 WL 182211, at *4 (N.D. Ill.

Jan. 18, 2022) (holding, on summary judgment, that evidence is

inadmissible because of defendant’s failure to lay a proper

foundation to meet the business record exception to hearsay);

Marine v. H.J. Mohr & Sons, Co., No. 04 C 2989, 20025 WL

2293673, at *15 (N.D. Ill. Sept. 19, 20025) (same).

Defendants argue that Plaintiff has previously relied upon

other records produced by Defendants, specifically the Master

Agreement and the District’s Educational Support Personnel

policies, and that the personnel sheets list all non-bargaining

employees in the District, not just Plaintiff. An examination of the

record reveals that Plaintiff has never conceded the admissibility of

the personnel sheets. Plaintiff never admitted in discovery that the

personnel sheets are what the Defendants purport them to be. In

fact, Plaintiff’s response to number 13 of Defendants’ Request to

Admit explicitly questions the authenticity of the personnel sheets.

d/e 44, Ex. 7; but see Thanongsinh, 462 F.3d at 778 (finding that

defendant conceded admissibility of business record because

defendant admitted that the document is what it purports to be in

its response to plaintiff’s interrogatories). Therefore, Defendants

Fuerstenau and Kuntzman’s affidavits do not properly authenticate

the Non-Bargaining Unit Personnel sheets, and the Court will not

consider them in its ruling on Defendants’ Motion for Summary

Judgement and Plaintiff’s Cross-Motion for Summary Judgment.

2. The statements in the affidavits themselves are material

and based on personal knowledge.

Plaintiff argues that Fuerstenau’s statement that Plaintiff was

not a member of the bargaining unit is an inadmissible lay witness

opinion because there lacked foundation that Fuerstenau at least

had read the Master Agreement. Plaintiff also argues that

Kuntzman’s statement that it was “usual practice” to tell

Technology Assistants that they would not be a member of the

bargaining unit is immaterial because Kuntzman did not state that

he told this to Plaintiff specifically.

The trial judge has broad discretion to disregard an affidavit

on summary judgment. See Corder v. Lucent Techs. Inc., 162 F.3d

924, 927 (7th Cir. 1998). Rule 56(c) of the Federal Rule of Civil

Procedure provides that a party moving for summary judgment may

support factual positions through affidavits. Such affidavits “must

be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is

competent to testify on the matters states.” Fed. R. Civ. P. 56(c)(4).

Although personal knowledge may include reasonable inferences,

those inferences must be “grounded in observation or other first-

hand personal experience. They must not be flights of fancy,

speculations, hunches, intuitions, or rumors about matters remote

from that experience.” Visser v. Packer Eng’g Assocs., Inc., 924

F.2d 655, 659 (7th Cir. 1991).

Rule 701 of the Federal Rules of Evidence provides that a

witness who is not testifying as an expert may offer opinions or

inferences that are: “(a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue, and (c) not based

on scientific, technical or other specialized knowledge within the

scope of Rule 702.” The district court has discretion to admit lay

opinion testimony under Rule 701. United States v. Espino, 32

F.3d 253, 256–57 (7th Cir. 1994).

First, in light of Fuerstenau’s position as Superintendent of

the District, Fuerstenau could reasonably be expected to have first-

hand knowledge of making disciplinary and employment decisions

regarding school employees, as described in paragraph 3 of his

affidavit. d/e 44, Ex. 3. He was also in a position to coordinate and

conduct meetings in regards to employment discipline and

termination for bargaining unit employees. See id. at ¶ 6, 7, 8.

Despite the lack of the explicit statement that Fuerstenau read the

Master Agreement, Fuerstenau’s assertion that Plaintiff was not a

member of the bargaining unit and not subject to the Master

Agreement is a reasonable statement given his position as a

Superintendent who facilitated disciplinary and employment

hearings with members of the collective bargaining unit.

Accordingly, his statement has proper foundation and meets the

personal knowledge requirement of Rule 56(c).

Second, Kuntzman’s statement that it was “usual practice” to

tell Technology Assistant that they would not be a member of the

bargaining unit is admissible. The statement was based on his

personal knowledge and not scientific, technical, or specialized

knowledge. While Kuntzman does not allege that he specifically

told this to Plaintiff, Kuntman’s past experiences provide context

and are helpful in understanding Kuntzman’s testimony and his

role as a supervisor to Plaintiff.

Lastly, Plaintiff correctly states that “self-serving statements in

affidavits without factual support in the record carry no weight on

summary judgment.” Butts v. Aurora Health Care, Inc., 387 F.3d

921, 925 (7th Cir. 2004). Plaintiff argues against the affidavits in

their entirety as self-serving. However, a court may consider self-

serving statements in affidavits if they are based on personal

knowledge and set forth specific facts. Buie v. Quad/Graphics,

Inc., 366 F.3d 496, 504 (7th Cir. 2004). As discussed above,

Defendants Fuerstenau and Kuntzman’s affidavits are based on

their personal knowledge and set forth specific facts, in compliance

with Rule 56(c). Therefore, the Court considers the statements

made in Defendants Fuerstenau and Kuntzman’s affidavits in its

ruling on Defendants’ Motion for Summary Judgment and Plaintiff’s

Cross-Motion for Summary Judgment.

C. The undisputed facts, viewed in the light most favorable

to Plaintiff, do not demonstrate that Plaintiff has a

property interest in his employment pursuant to the

Master Agreement because he was not a party to the

contract.

The Due Process Clause of the Fourteenth Amendment

provides that “[n]o state shall . . . deprive any person of life, liberty,

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

1. However, in order for a plaintiff “[t]o demonstrate a procedural

due process violation of a property right, the plaintiff must establish

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).

Here, Plaintiff “cannot under Section 1983 complain of

procedural due process violations unless the state has first deprived

him . . . or such a constitutionally protected [property] interest.”

See Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005). Therefore,

“the threshold question is whether a protected property interest

actually exists.” Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d

901, 904 (7th Cir. 2011). 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. 564–77 (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). In Illinois, “a person has a property interest

in his job only where he has a legitimate expectation of continued

employment based on a legitimate claim of entitlement.” Moss v.

Martin, 473 F.3d 694, 700 (7th Cir. 2007). Accordingly, “[t]o show

a legitimate expectation of continued employment, a plaintiff must

show a specific ordinance, state law, contract or understanding

limiting the ability of the state or state entity to discharge him.” Id.

(citation omitted). Illinois law presumes “an employment

relationship without a fixed duration is terminable at will by either

party.” See Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505

N.E.2d 314, 317–18 (Ill. 1987). However, that presumption “can be

overcome by demonstrating that the parties contracted otherwise.”

Id. at 318. “Property interests in employment may be created by

express or implied contracts . . .” Farmer v. Lane, 864 F.2d 473,

478 (7th Cir. 1988).

The parties dispute whether Plaintiff was a member of the

collective bargaining unit and whether the Master Agreement

applies to him. Defendants argue that Plaintiff was not a member

of the bargaining unit because Plaintiff’s position was listed on the

Non-Bargaining Unit personnel sheets as “Technology Assistant”

and that Plaintiff’s salary of $34,953.00 for the 2018 school year

matches the salary listed for the Technology Assistant on the list of

Non-Bargaining Unit Personnel. Defendants further argue that

Plaintiff did not pay membership dues, or a fair share fee as

required for members of the collective bargaining unit pursuant to

the Master Agreement. As discussed above, because the Court

finds that Defendants failed to properly authenticate the Non-

Bargaining Unit personnel sheets, the Court declines to consider

them.

The Court finds that the undisputed evidence reveals that

Plaintiff was not a member of the collective bargaining unit. As a

result, the Master Agreement did not apply to Plaintiff. Plaintiff has

not demonstrated that absent the Master Agreement, he has a

constitutionally protected property interest. The undisputed facts

reveal that Plaintiff did not provide his signature on an

authorization form for deductions as required for members of the

collective bargaining unit. See Plaintiff’s Responses to Defendants’

Requests to Admit (d/e 44, Ex. 8, No. 19). Plaintiff also does not

dispute that he did not pay membership dues or a fair share fee.

See Plaintiff’s Responses to Defendants’ Requests to Admit (d/e 44,

Ex. 8, No. 27); Cheli Paycheck Stubs (d/e 44, Ex. 9). It is

undisputed that any member of the collective bargaining unit must

provide a signature on an authorization form, pay membership

dues, or pay a fair share fee. See d/e 44, Ex. 1, Article IV, 4.12; Ex.

2, Article VII, 7.13. Furthermore, Plaintiff does not dispute that

Article XII of the Master Agreement contained the salary schedules

for all personnel subject to the Master Agreement. Moreover,

Plaintiff previously denied that his salary was listed in Article XII of

the Master Agreement (d/e 44, Ex. 7, Request No. 28 and

Response). Although Plaintiff argues that the position of Computer

Aide, which is listed in Article XII of the Master Agreement,

“appears to be similar” to Plaintiff’s position, Computer Aides are

paid hourly and Plaintiff had previously admitted an annual salary

of $34,953.00 for the 2018 school year. See d/e 44, Ex. 6,

Interrogatory No. 15. Again, the Court reiterates that Plaintiff had

previously denied that his salary was listed in Article XII of the

Master Agreement.

Plaintiff, in arguing that he was protected by the Master

Agreement and that the Board regarded him as a union member,

points to the resolution of the Board terminating his employment

referring to him as a “Custodian Employee.” However, the Court’s

examination of the Custodial Salary Schedule indicates that “all

custodians hired after 7/1/13 will be paid at an hourly rate.” d/e

44, Ex. 2, p. 14; see Fed. R. Civ. Pro. 56(c)(3) (“The court need

consider only the cited materials, but it may consider other

materials in the record.”). The undisputed materials facts state that

Plaintiff began his employment on or about September 2014, and

Plaintiff has previously admitted an annual salary of $34,953.00 for

the 2018 school year. See d/e 44, Ex. 6, Interrogatory No. 15.

Moreover, Plaintiff has cited no case law demonstrating that

instances in which he may have been treated like a member of the

bargaining unit effectively makes him a member of the unit.

Plaintiff also argues that the pre-termination and termination

proceedings, albeit flawed, would not have been required absent his

protection under the Master Agreement. Plaintiff cites no case law

in support of his argument. The Court disagrees with Plaintiff. The

existence of pre-termination and termination proceedings is not

indicative of having a property interest in employment. Rather, it is

the existence of a property interest in employment that necessitates

proper due process protections under the Fourteenth Amendment.

In other words, “if” there is a property interest, “then” due process

protections are required. Plaintiff has incorrectly inverted the if-

then clauses: he argues that “if” there are pre-termination and

termination proceedings, “then” there is a property interest.

Moreover, Article I of the Master Agreement recognizes the

collective bargaining unit to include “full-time and regularly

scheduled part-time cooks, custodians, secretaries, and aides” and

excludes “certified employees, confidential, managerial and

supervisory employees, as defined by the Illinois Educational Labor

Relations Act.” d/e 44, Ex. 1. The Illinois Educational Labor

Relations Act (the “Act”) provides “educational employees” the right

to organize for collective bargaining. 115 ILCS 5/3(a). “Educational

employee” is defined therein as “any individual, excluding

supervisors, managerial, confidential, short term employees,

student, and part-time academic employees of community colleges

employed full or part time by an educational employer[.]” 115 ILCS

5/2(b). Although Defendants do not purport that any of the

exclusions to Act apply to Plaintiff, the Act makes clear that the

Illinois Educational Labor Relations Board (IELRB) is empowered to

recognize and determine the appropriateness of each collective

bargaining unit. 115 ILCS 5/7(a), (b). Section 7(a) does not require

that a proposed unit be the “most appropriate unit”; rather, the unit

need only be an “appropriate” unit. Cmty. College Dist. No. 509 v.

Ill. Educational Labor Relations Bd., 660 N.E.2d 265, 270 (Ill. App.

Ct. 1996).

Plaintiff’s right as an “educational employee” to organize for

collective bargaining is subject to the IELRB’s determination of each

collective bargaining unit. The IELRB presumably chose to exclude

the positions of Technology Coordinator and Technology Assistant

from the collective bargaining unit. See 115 ILCS 5/7(a), (b). While

Plaintiff argues potential other classifications, including being a

“custodian employee” and a “Computer Aide,” to bring him into the

Master Agreement member classification, the Court has discussed

above that the undisputed facts, viewed in a light most favorable to

Plaintiff, do not demonstrate that Plaintiff fits those classifications.

Ultimately, however, Plaintiff does not challenge the IELRB’s

determination of the collective bargaining unit. Here, Plaintiff

points to the Master Agreement as the contract establishing that he

had a legitimate expectation of continued employment. However,

the undisputed facts, viewed in a light most favorable to Plaintiff,

demonstrate that Plaintiff had no property interest in his

employment through the Master Agreement.

D. Plaintiff can state claims for relief under the Fourteenth

Amendment independently of the Illinois Labor Relations

Act.

Citing the Illinois Educational Labor Relations Act (the Act),

Defendants argue that, even if Plaintiff were a member of the

collective bargaining unit, the Illinois Educational Labor Relations

Board (IELRB), rather than this district court, is the proper tribunal

for this action. Plaintiff did not respond to this argument in his

Response.

The Act states that that “[a] charge of unfair labor practice

may be filed with the [IELRB].” 115 ILCS 5/15. The Illinois

Supreme Court has recognized that the IELRB has exclusive initial

jurisdiction over charges alleging an unfair labor practice. Proctor

v. Bd. of Educ., Sch. Dist. 65, Evanston, Ill., 392 F. Supp. 2d 1026,

1031 (N.D. Ill. 2005); Bd. of Educ. Of Comm. Sch. Dist. No. 1 v.

Compton, 526 N.E.2d 149, 151–52 (1988). Subsequent review of

the IELRB’s executive director’s decision not to issue a complaint is

appealable to the IELRB and ultimately to the appellate court on

administrative review. 115 ILCS 5/16; Proctor, 392 F. Supp. 2d at

1031.

The Court agrees that the IELRB has exclusive initial

jurisdiction over charges alleging an unfair labor practice. However,

while Defendants cite to cases in which the court found that the

IELRB held initial exclusive jurisdiction, those plaintiffs brought an

unfair labor practice claim under the Act itself. See Proctor, 392 F.

Supp. 2d at 1029–31 (finding that it lacked subject matter

jurisdiction over plaintiff’s claim for breach of the collective

bargaining agreement by censoring freedom of expression and

involuntarily transferring plaintiff); Watson v. E. St. Louis Sch. Dist.

189, No. 11-cv-0632, 2013 WL 497863 (S.D. Ill. Feb. 8, 2013)

(finding that it lacked subject matter jurisdiction over plaintiff’s

claim that the union violated its duty of fair representation). In

contrast, here, Plaintiff is not attempting to bring an “unfair labor

practice” claim under the Act. Instead, Plaintiff’s action is brought

under 42 U.S.C. § 1983 to remedy alleged Fourteenth Amendment

due process violations.

In Sroga v. Preckwinkle, the Northern District of Illinois found

that the plaintiff could state a claim of relief on his state law claims

independently of the Illinois Public Labor Relations Act. No. 14 C

06594, 2017 WL 345549, at *9 (N.D. Ill. Jan. 24, 2017). There, the

plaintiff alleged that he was fired in retaliation for his union-

organizing activity in violation of the Illinois Constitution’s guarantee

of the right to assemble and Illinois common law. Id. at *8. “[I]f a

claim’s viability depends on a statute that otherwise puts a

comprehensive remedial scheme in the hands of an administrative

agency, then the claim really is a statutory claim that is in that

agency’s exclusive jurisdiction.” Id. at *9; see Mendez v. Perla Dental,

646 F.3d 420, 422 (7th Cir. 2011) (“A claim is inextricably linked with

the [a]ct if the [a]ct furnishes the legal duty that the employer is

alleged to have violated.”).

Here, to succeed on his procedural due process claim, 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).

Plaintiff’s claim of a deprivation of procedural due process is not a

duty attributed to Defendants under the Act. Plaintiff has never

alleged that Defendants’ violation of his due process rights was an

unfair labor practice under the Act. As a result, Plaintiff’s § 1983

claims are independent of the Act, so they are outside of the

IELRB’s exclusive jurisdiction.

Defendants also argue under the Agreement that, even if

Plaintiff were a member of the collective bargaining unit, Plaintiff

failed to avail himself of any of the remedies available under the Act

by failing to submit a self-determination petition to be included in

the unit. Defendants cite to Sedol Tchrs. Union v. Ill. Educ. Lab.

Rels. Bd. to support their argument that Plaintiff could have filed a

self-determination petition if he wished to be included in the

collective bargaining unit. 658 N.E.2d 1364, 1370 (Ill. App. 1995).

A self-determination petition may be filed by an employee to “add

unrepresented employees to an existing bargaining unit, where a

question concerning representation would be presented by their

inclusion.” 80 Ill. Admin. Code 1110.180(a)(1); see Sedol, 658

N.E.2d at 1370 (“To accrete employees into an existing unit, a self-

determination petition must be filed with the proper showing of

interest.”). Defendants also argue Plaintiff failed to avail himself of

any remedies under the Act by failing to file an unfair labor practice

charge with the IELRB. Similarly, Plaintiff only attempts to alleges

§ 1983 claims, not unfair labor practice claims under the Act.

Plaintiff’s § 1983 claims are independent of any unfair labor

practice claims. Defendant’s arguments are inapplicable.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary

Judgment (d/e 44) is GRANTED and Plaintiff’s Cross-Motion for

Summary Judgment (d/e 45) is DENIED. Because the Court grants

the Defendants’ Motion for Summary Judgment and finds that

Plaintiff had no property interest in his employment because he is

not a party to the Master Agreement, the Court does not reach

Plaintiff’s argument that he was denied due process at his pre-

disciplinary and termination proceedings. This case is closed. The

Clerk is directed to enter judgment in favor of Defendants. Each

party to bear its own costs.

IT IS SO ORDERED.

ENTERED: February 17, 2023

FOR THE COURT

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE