# Cheli v. Taylorville Community School District 3

> District Court, C.D. Illinois · February 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10137102

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** February 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10137102

## How later opinions describe it (automated extraction)

- 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)
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10137102. Public record. Not legal advice.