Gaffey v. Illinois Dept of Juvenile Justice

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES E. STEVENS, as trustee of the )

bankruptcy estate of Kye E. Gaffey, )

)

Plaintiff, )

) No. 15-cv-06904

v. )

) Judge Andrea R. Wood

ILLINOIS DEPARTMENT OF )

JUVENILE JUSTICE, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff James E. Stevens (“Plaintiff”) has brought this action in his role as trustee for

the bankruptcy estate of Kye Gaffey, claiming that Gaffey was fired from his position as

superintendent of Illinois School District 428 (“District 428”) in violation of his constitutional

due process rights and the terms of his employment contract. Plaintiff asserts federal due process

claims against Defendants Arthur Bishop, District 428’s School Board (“Board”), and the named

individual Board members (Counts I and II), as well as breach of contract claims against the

Board only (Counts IV and V).1 Now before the Court are the parties’ cross-motions for

summary judgment. (Dkt. Nos. 57, 60.) For the reasons stated below, Plaintiff’s motion is denied

and Defendants’ motion is granted.

BACKGROUND

Except as otherwise noted, the following facts are undisputed.

Gaffey was hired as the superintendent for District 428 on or about August 21, 2011.

(Defs.’ Resp. to Pl.’s Statement of Undisputed Facts (“DRSOF”) ¶ 12, Dkt. No. 63.) District 428

1 On December 1, 2016, this Court dismissed Count III, a due process claim against Defendant Illinois

Department of Juvenile Justice. (See Dkt. No. 34.)

is a statewide school district that administers educational programs for incarcerated juveniles in

Illinois. (Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (“PRSOF”) ¶¶ 2–3, Dkt. No. 65.)

Bishop served as Director of the Department of Juvenile Justice (“Department”) and President of

the Board throughout the time period at issue. (DRSOF ¶ 5.) He was also involved in hiring

Gaffey and served as his direct supervisor. (DRSOF ¶ 13.) Fellow Defendants James Gunnell,

Anthony Grady, Donald Smoot, Carl Ellis, and Tresa Dunbar were members of the Board in

August 2013. (DRSOF ¶ 5.) When the complaint in this lawsuit was filed in August 2015,

Dunbar was still a member of the Board (PRSOF ¶ 9), Defendant Candice Jones was Director of

the Department and a member of the Board (PRSOF ¶ 8), and Defendants Heather Dalmage,

David A. Green, John P. Griffin, Candice Smith, and Jennifer Vidis were members of the Board

(PRSOF ¶ 9).

The Board met approximately ten times per year. (DRSOF ¶ 26.) Delores McKinney,

Bishop’s secretary, prepared minutes and agendas for those meetings and audio recorded the

open portions. (DRSOF ¶¶ 28–29.) Closed portions of the meetings were recorded by the

Board’s attorney. (DRSOF ¶ 30.)

Gaffey participated in two interviews before being hired as superintendent.

(PRSOF ¶ 13.) There was no discussion during either interview regarding the duration of

Gaffey’s employment, whether he could be fired at will, his salary, or the existence of grievance

or disciplinary procedures. (PRSOF ¶¶ 14–15.) But around the time he was hired, Gaffey

received and signed a one-page document stating his date of employment and describing his

position. (DRSOF ¶ 15.) Gaffey’s terms of employment did not include performance-based

requirements. (DRSOF ¶ 16.)

On August 15, 2013, Gaffey and his then-wife were arrested for trespass and criminal

damage to property. (PRSOF ¶ 21.) The charges were dropped after Gaffey entered a pretrial

diversion program and completed community service. (PRSOF ¶ 23.) Bishop and the

Department first heard about Gaffey’s arrest as a result of a media inquiry on August 20, 2013.

(PRSOF ¶ 35.) Gaffey then emailed Bishop and others about the arrest that evening.

(PRSOF ¶ 36.) The parties dispute whether Bishop understood Gaffey’s email to be a

resignation. (PRSOF ¶ 41.) But there is no dispute that Bishop subsequently sent Gaffey an email

directing him to come to Bishop’s office the following day and to bring his state equipment.

(PRSOF ¶ 42.) After receiving the email, Gaffey called Bishop and agreed to go to the

Department’s Kewanee, Illinois office the following day to turn in his equipment. (PRSOF ¶¶ 43,

50.) The parties dispute whether Gaffey indicated during that conversation that he would resign,

but they agree Gaffey assumed he was being fired. (PRSOF ¶¶ 45, 49.)

After their conversation, Bishop expected Gaffey to bring a letter of resignation to the

meeting the next day. (DRSOF ¶ 24.) But Gaffey did not attend the meeting at all.

(PRSOF ¶ 62.) In a phone call, Gaffey told Ron Smith, with whom Gaffey was expected to meet,

that he was not coming to the meeting but instead was going out of town, which was a lie.

(PRSOF ¶ 64.) Smith told Gaffey to call Bishop, but Gaffey refused. (PRSOF ¶ 64.) In the end,

Gaffey never returned to work but he also did not submit a written resignation letter.

(PRSOF ¶¶ 68, 70.)

On August 21, 2013, the Board held a teleconference to discuss Gaffey’s employment

status and the need for an emergency Board meeting. (DRSOF ¶ 32; PRSOF ¶ 71.) The Board’s

emergency meeting was held on August 26, 2013; there, Board members discussed Gaffey’s

employment, in part in closed sessions. (DRSOF ¶¶ 50, 55.) Bishop, Gunnell, Ellis, Smoot, and

Grady were all in attendance. (PRSOF ¶ 72.) After the Board decided in a closed-door session to

fire Gaffey for abandoning his position, the Board voted in an open session to terminate Gaffey

and appoint Rick Gravatt as the acting superintendent of District 428. (PRSOF ¶¶ 77, 78.) Gaffey

was not notified of this meeting and he did not learn of his termination until approximately one

month later. (DRSOF ¶¶ 69, 75.)

There are two federal and two state law claims remaining in this lawsuit. Counts I and II

consist of claims under 42 U.S.C. § 1983 for violations of Gaffey’s rights under the Due Process

Clause of the Fourteenth Amendment to the United States Constitution and are asserted against

Bishop, the Board, and the individual Board members. Counts IV and V consist of state law

claims for breach of contract against the Board—first, with respect to its obligations for the

2013–2014 school year, and second, with respect to its obligations for the 2014–2015 school

year. In their cross-motions for summary judgment, the parties primarily dispute whether the

Board may invoke sovereign immunity as a defense to the due process claims and whether

Gaffey had a protectable property interest in his position as superintendent for purposes of those

claims. Neither side seeks summary judgment with respect to the breach of contract counts.

DISCUSSION

Under Federal Rule of Civil Procedure 56, “a party may move for summary judgment,

identifying each claim or defense—or part of each claim or defense—on which summary

judgment is sought.” Fed. R. Civ. P. 56(a). “The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Id. To make such a showing, the movant must identify relevant

portions of the evidentiary record—including the pleadings, depositions, affidavits, and answers

to interrogatories—demonstrating the lack of any genuine dispute of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). The party opposing the motion then must respond by

setting forth specific facts showing that there is a genuine factual issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there is a genuine issue of

fact for trial, the Court must view all evidence in the light most favorable to the nonmovant and

draw all reasonable inferences in favor of the nonmovant. Santiago v. Lane, 894 F.2d 218, 221

(7th Cir. 1990). The same standard applies when there are cross-motions for summary judgment.

Calumet River Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Local 150, AFL-CIO, 824 F.3d

645, 647–48 (7th Cir. 2016). And each summary judgment motion must be evaluated

independently—the denial of one does not mean the other must be granted. Dominguez v.

Quigley’s Irish Pub, Inc., 790 F. Supp. 2d 803, 810 (N.D. Ill. 2011).

I. Eleventh Amendment Immunity

Defendants contend that Plaintiff’s suit against the Board is barred by the Eleventh

Amendment to the United States Constitution, which grants states immunity from private suits

brought in federal court without their consent. See Nuñez v. Ind. Dep’t of Child Servs., 817 F.3d

1042, 1044 (7th Cir. 2016). That immunity extends to state agencies and state officials sued in

their official capacities. Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). But while the bar

against suit in federal courts protects state agencies, it does not shield counties, municipal

corporations, or political subdivisions. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 280 (1977). Whether the Board is immune therefore depends on whether the Court

should regard it as an arm of the state for Eleventh Amendment purposes. States and their

agencies also have a related but distinct defense to § 1983 claims, since they are not suable

“persons” within the meaning of that statute. Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir.

2012); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989) (holding that “neither

a State nor its officials acting in their official capacities are ‘persons’ under § 1983”).

To determine whether an entity is an arm of the state, courts consider the entity’s

financial autonomy from the state and the “general legal status” of the entity. Burrus v. State

Lottery Comm’n of Ind., 546 F.3d 417, 420 (7th Cir. 2008) (citing Kashani v. Purdue Univ., 813

F.2d 843, 845–47 (7th Cir. 1987)). The most critical factor in the analysis, however, is “the

extent of the entity’s financial autonomy from the state.” Kashani, 813 F.2d at 847. That inquiry,

in turn, requires consideration of five factors: “(1) the extent of state funding; (2) the state’s

oversight and control of the entity’s fiscal affairs; (3) the entity’s ability to raise funds; (4)

whether the entity is subject to state taxation; and (5) whether a judgment against the entity

would result in an increase in its appropriations.” Peirick v. IUPUI Athletics Dep’t, 510 F.3d

681, 696 (7th Cir. 2007).

Local school districts generally are not considered arms of the state. Parker v. Franklin

Cnty. Cmty. Sch. Corp., 667 F.3d 910, 927 (7th Cir. 2012). But unlike a typical local school

district in Illinois, District 428 receives no county or municipal funding and no property tax

revenue. (PRSOF ¶ 3). Nor is District 428 entitled to levy taxes or issue bonds. See 105 ILCS

5/17-2.11 (granting school boards the power to levy taxes, borrow money, and issue bonds) and

105 ILCS 5/13-45 (declaring 105 ILCS 5/17-2.11 inapplicable to District 428). The Board,

which governs and operates in service to District 428, therefore lacks important means by which

to raise funds that are generally available to other school districts. The third factor—the entity’s

ability to raise funds—thus weighs against a finding of the Board’s autonomy from the state.

The first factor (the extent of state funding) and the second factor (the state’s oversight

and control of fiscal affairs) also suggest District 428’s financial dependence on the state. While

District 428 does receive some funding from outside grants, the federal government funds

approximately 80% of its budget, with the state allocating the remainder. (Defs.’ Statement of

Undisputed Facts (“DSOF”) Ex. C at 129:12–18, 130:2–9, Dkt. No. 59-3.) Regardless of the

source, all the funds District 428 receives must first be deposited with the Department of

Corrections Reimbursement and Education Fund in the state treasury before those funds may be

used, “subject to appropriation, to pay the expenses of the school and school district.” 105 ILCS

5/13-44.4. Moreover, District 428’s budget must be “submitted to the Department of Corrections

and the State Board of Education for incorporation.” Id.; see also 105 ILCS 5/13-43.20

(providing for recommending to the State Board of Education the necessary funds for operating

the District’s programs). The statutory funding scheme therefore leaves District 428, and thus the

Board, dependent on the state in a way other school boards are not: the state must approve a

budget and release funding to District 428 for it to get any funding.

Most crucially, the statutory scheme suggests that the state will be liable for any

judgment against the Board. Any budget for District 428 is supposed to include coverage for “all

necessary expenses and liabilities” that District 428 may incur. 105 ILCS 5/13-44.4. All funding

for District 428 must ultimately be provided by the state treasury. Id. Any judgment or liability

incurred by the Board would necessarily be paid by the state—District 428, and thus its

governing Board, cannot levy taxes or issue bonds to raise funds, and any outside funds must be

routed through the state treasury subject to state appropriation. Moreover, the types of outside

grants mentioned by Gaffey in his deposition seem to be geared toward starting or funding

specific educational programs. (See DSOF Ex. C at 129:12–18.) It would be unrealistic to

believe that the Board could fundraise on District 428’s behalf for the purpose of covering a legal

judgment; and even if it could, the funds still would need to be appropriated by the state treasury.

In sum, the Board depends on the state for financial support; and since that support is allocated

by the state treasury, any judgment against the Board would necessarily impact the state treasury.

The Court thus finds that the Board lacks financial autonomy from the state.2

The Board’s general legal status also suggests a lack of operational independence from

the state. As the parties agree, relevant factors for determining an entity’s legal status include

whether the governing Board members are independently selected, the district’s ability to

exercise its powers independently, and whether the entity serves the entirety of the state or only a

portion of it. Peirick, 510 F.3d at 696–97. The Board’s composition weighs against finding an

independent legal status. The Governor of Illinois appoints one member of the Board, the

Director of the Department, directly. 105 ILCS 5/13-41. The Director, in turn, appoints two

members, and the State Board of Education appoints another four members. Id. Plaintiff does not

dispute the Board’s composition but instead contends that this factor is not dispositive. The

problem for Plaintiff is that the other factors also suggest that the Board’s “general legal status”

is not an independent one. Plaintiff concedes that District 428 operates statewide. In addition, the

governing statute defines District 428 as one created “within the Department” and compels the

Board to seek advice from the Department and the State Board of Education. 105 ILCS 5/13-40.

Overall, there is a noted absence of operational independence. As the Board is not

financially autonomous or operationally independent of the state, the Court finds that the Board

is not a “person” subject to liability under § 1983 and, in any case, that sovereign immunity

would preclude any suit against it for damages. The Court therefore grants summary judgment in

the Board’s favor as to Count II. And because sovereign immunity “prohibits a federal court

from adjudicating state law claims against the state and its agencies where, as here, it does not

2 Neither party discusses the fourth factor: whether the Board is subject to taxation. There is no evidence

in the record on this point.

consent,” Offor v. Ill. Dept of Human Servs., No. 11 C 7296, 2013 WL 170000, at *4 (N.D. Ill.

Jan. 16, 2013), the Court also dismisses the breach of contract claims in Counts IV and V

without prejudice to Plaintiff pursuing whatever remedies may be available to him in state court.

See 745 ILCS 5/1; 705 ILCS 505/8.

II. Personal Involvement of Individual Board Members

In Count II, Plaintiff also asserts § 1983 claims for due process violations against various

individual Board members. Individual liability under § 1983 “requires personal involvement in

the alleged constitutional deprivation.” Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir.

2003). Plaintiff must therefore demonstrate that each individual Board member directly

participated in or caused the claimed deprivation of his due process rights. See Minix v.

Canarecci, 597 F.3d 824, 833–34 (7th Cir. 2010).

Five of the individual Defendants (Dalmage, Green, Griffin, Smith, and Vidis) were not

members of the Board when Gaffey was terminated in August 2013. Additionally, Jones served

as Director of the Department, and thus a member of the Board, as of August 2015, but she was

not a member in August 2013. Plaintiff asserts that the claimed violations of Gaffey’s due

process rights were still ongoing when the complaint was filed, making these individuals liable

under § 1983. But the relevant question is whether these individuals caused or participated in the

alleged deprivation—the termination of Gaffey’s employment with District 428. As none of

these individuals served on the Board at the time the Board ended Gaffey’s employment, they

could not have participated in causing that deprivation. The Court therefore grants summary

judgment on Count II with respect to Defendants Dalmage, Green, Griffin, Jones, Smith, and

Vidis. In addition, although Defendant Dunbar was a member of the Board in August 2013, she

did not attend the August 26, 2013 meeting at which Gaffey’s employment was terminated or

otherwise vote or act to terminate Gaffey’s employment. Since Plaintiff does not present any

evidence that Dunbar participated in the termination of Gaffey’s employment, the Court also

grants summary judgment as to Count II with respect to Dunbar.

III. Existence of a Protected Property Interest

That leaves the individual Defendants who were members of the Board at the time of

Gaffey’s termination in August 2013 (other than Dunbar): Bishop, Gunnell, Grady, Smoot, and

Ellis. To prove the procedural due process claim against these individual Defendants, Plaintiff

must show “(1) that [Gaffey] had a constitutionally protected property interest, (2) that [Gaffey]

suffered a loss of that interest amounting to a deprivation, and (3) that the deprivation occurred

without due process of law.” Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007). Defendants

contend that Plaintiff falters at the first element.

Protected property interests “are not created by the Constitution.” Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972). Rather, they “are created and their dimensions

defined by existing rules or understandings that stem from an independent source such as state

law.” Id. A protected property interest in employment may arise from statutes, regulations, or

contracts. Border v. City of Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996). Since Gaffey was

employed in Illinois, that state’s law determines whether he had a property interest in his

employment. Moss, 473 F.3d at 700. Under Illinois law, individuals have a property interest in

their employment only where they can demonstrate a “legitimate expectation of continued

employment based on a legitimate claim of entitlement.” Id. “To 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.” Krecek v. Bd. of

Police Comm’rs of La Grange Park, 646 N.E. 2d 1314, 1318–19 (Ill. 1993). Otherwise,

employment contracts for indefinite periods are presumed to be terminable at-will. Barr v. Jelso-

Burnett Co., 478 N.E. 2d 1354, 1356 (Ill. 1985).

A. Application of Section 10-23.8 to District 428

Plaintiff bases his claim that Gaffey had a protected property interest in his employment

as District 428 superintendent on the existence of an implied contract based on the requirements

of Section 10-23.8 of the Illinois School Code (“School Code”). Plaintiff appears to claim an

implied employment contract, rather than an express contract, because the written documentation

of Gaffey’s employment terms consists of a one-page “personnel/position action” form signed by

Gaffey and Bishop. (See Compl., Ex. A, Dkt. No. 1-1.) The document indicates that, beginning

August 16, 2011, Gaffey held the “exempt” position of “senior public service administrator”

with a monthly salary of $9,187. (See id.; DRSOF ¶ 15.) This one-page form document does not

include any agreement regarding the term of Gaffey’s employment or the circumstances under

which he could be terminated. Nonetheless, Plaintiff claims that once employed as a

superintendent, Illinois statutory law provided that Gaffey would remain employed on a year-to-

year contract basis unless provided notice of the Board’s intent not to renew his contract by April

1 of the contract year.

Plaintiff’s position is based on the provision of Section 10-23.8 stating that “school

districts may only employ a superintendent or, if authorized by law, a chief executive officer

under either a contract for a period not exceeding one year or a performance-based contract for a

period not exceeding 5 years.” 105 ILCS 5/10-23.8. In addition, Section 10-21.4 of the School

Code provides that “[n]otice of intent not to renew a contract [for employment of a

superintendent] must be given in writing stating the specific reason therefor by April 1 of the

contract year unless the contract specifically provides otherwise. Failure to do so will

automatically extend the contract for an additional year.” 105 ILCS 10-21.4. Plaintiff urges this

Court to find that the one-page personnel/position action form, combined with the requirements

of Illinois law as stated in Sections 10-23.8 and 10-21.4, provide a sufficient basis to conclude

that Gaffey and the Board had an agreement for Gaffey to be employed on a year-to-year basis

unless he received the Board’s notice of intent not to renew his contract by April 1 of the

contract year. For this reason, Plaintiff claims that Gaffey had a protected property interest in his

continued employment as District 428 superintendent.

Defendants offer three reasons why Plaintiff should not be permitted to rely on Section

10-23.8 as providing Gaffey a protected property interest in his continued employment as

superintendent. First, Defendants contend that Section 10-23.8 simply does not apply to District

428 superintendents. Plaintiff suggests that the Court should reject this argument out of hand

because it already determined that the relevant provisions in Article 10 do not conflict with

Article 13 when it denied Defendants’ motion to dismiss the federal due process claim under

Federal Rule of Civil Procedure 12(b)(6). (See Mem. Op. and Order at 7–8 (Dec. 1, 2016), Dkt.

No. 34.) That finding, according to Plaintiff, is the law of the case and should not be revisited.

But in their Rule 12(b)(6) motion, Defendants raised an argument based on a purported conflict

between the requirements of Section 10-23.8 and Section 13-43.6, the latter of which describes

the duties of superintendents for District 428. The Court rejected that argument and denied the

motion to dismiss. Now, in their summary judgment motion pursuant to Rule 56, Defendants

raise a related but arguably different argument. Accordingly, the Court does not view

Defendant’s current argument as foreclosed by its prior ruling.

The Court now turns to the merits of Defendants’ present argument. Article 10 of the

School Code governs local school districts (and their superintendents) generally, while Article 13

governs District 428 specifically. The extent to which Article 10 applies to District 428 is set

forth in Section 13-45. 105 ILCS 5/13-45. That provision lists the specific Articles and Sections

of the School Code that “shall not apply” to District 428. See id. (emphasis added). Those

inapplicable provisions include “those Sections of Article 10 in conflict with any provisions of

Sections 13-40 through 13-45.” Id. The plain language of Section 13-45 thus leaves little doubt

that some portions of Article 10 apply to District 428. Otherwise, there would be no reason for

Section 13-45 specifically to exclude only those Sections of Article 10 “in conflict” with the

listed Sections of Article 13. This language stands in contrast to the delineation of several other

Articles of the School Code as inapplicable to District 428 in their entirety. Thus, Section 13-45

can only be read to provide, first, that there are sections of Article 10 that do not conflict with

Sections 13-40 through 13-45, and second, those Sections apply to District 428.

Defendants claim that Section 10-23.8 cannot be one of those Sections that applies to

District 428 because the language regarding contracts for superintendents found in Section 10-

23.8 is not found anywhere in Article 13. Defendants posit that, “[i]f the legislature intended

District [428] superintendents to be under contract, it would have stated so in Article 13.” (Defs.

Mem. at 8, Dkt. No. 58.) But Section 10-23.8 does not indicate that it is limited to any particular

subset of Illinois school district superintendents; nor does it purport to exclude any

superintendents from its requirements. More importantly, nothing about the contract requirement

in Section 10-23.8 conflicts with any provisions of Section 13-40 through 13-45—those

provisions of Article 13 say nothing one way or the other about whether the person hired as

superintendent of District 428 must have a contract and, if so, whether that contract is limited to

a term not exceeding one year. As this Court observed in its motion to dismiss ruling, Defendants

offer no authority for their presumption that Sections of Article 10 and Article 13 should be

construed as “in conflict” where one is silent and the other speaks. To the contrary, the plain

language and structure of Section 13-45 make clear that Article 13 was not intended to cover all

of the same ground as Article 10, and that where Article 13 does not provide otherwise, the

requirements of Article 10 govern District 428.

Defendants ask the Court to compare Section 10-21.4 with Section 13-43.6. They point

out that the entirety of Section 13-43.6 is taken “word for word” from the first and second

paragraphs of Section 10-21.4, and they suggest that any language not so incorporated should not

be applied to District 428 superintendents. (Defs. Mem. at 8.) This would include the notice of

non-renewal language in the final paragraph of Section 10-21.4. But this Court has already

considered whether Section 10-21.4 conflicts with Section 13-43.6 in its motion to dismiss ruling

and determined that it does not.

Next, Defendants argue that even if Section 10-23.8 did apply to Gaffey’s position, it did

not alter his status as an at-will employee. That is because Section 10-23.8 does not contain any

language limiting the Board’s ability to terminate a superintendent but does contain language

limiting employment of superintendents “to a period not exceeding one year.” Under Illinois law,

“employment relationships without a fixed duration are presumed to be terminable at the will of

either party.” Schwarz v. Loyola Univ. Med. Ctr., 659 F. Supp. 2d 988, 993 (N.D. Ill. 2009). This

is true even for a written contract, unless the document contains “clear contractual language”

showing that the parties agreed to a specified duration. Id. Inclusion of language establishing an

employment relationship “‘not to exceed’ a certain period suggests an indefinite term of

employment rather than a definite one.” Id. (citing Foiles v. N. Green Unit Dist. No. 3, 633

N.E.2d 24 (Ill. App. Ct. 1994)). An indefinite term, in turn, suggests an at-will employment

relationship. Foiles, 633 N.E.2d. at 26. Based on these principles of employment law, according

to Defendants, even under Section 10-23.8, Gaffey was an at-will employee with no protected

property interest in his continued employment.

In Schwarz, however, the “not to exceed” language was included in the contract itself,

whereas here, Section 10-23.8 uses that language to set a maximum term for non-performance-

based contracts but does not necessarily preclude a school district from including a definite term

in the superintendent’s contract, so long as it does not exceed one year. Moreover, Defendants’

reading of Section 10-23.8 as making Gaffey an at-will employee ignores the language of

Section 10-21.4, which establishes that school boards must provide notice of their intent not to

renew a contract in writing by April 1 of the contract year or else the contract is automatically

extended for an additional year. Because that automatic extension is not subject to the “not

exceeding” language present in Section 10-23.8 or any other qualification, it follows that the

automatic extension is for a definite one-year period. Here, it is undisputed that Gaffey was hired

in August 2011 and fired in August 2013. (DRSOF ¶¶ 12, 50, 64.) Nor do Defendants claim that

they took any action affecting Gaffey’s employment status prior to his August 2013 termination.

Thus, under Section 10-21.4, Gaffey’s employment term was fixed for a definite one-year period

as of April 2012, and that term was renewed in April 2013 and in effect at the time of his firing.

Because of that fixed term, Gaffey’s employment cannot be deemed at will. See, e.g., Duldulao

v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 317 (Ill. 1987) (“Nearly all courts agree

on the general rule, that an employment relationship without a fixed duration is terminable at will

by either party.”); Spear v. Bd. of Educ. of N. Shore Sch. Dist. No. 112, 683 N.E.2d 218, 221 (Ill.

App. Ct. 1997) (“Under Illinois law, employment which is not for a fixed term is presumed to be

at will . . . .”).

Lastly, Defendants claim that any interest Gaffey had in his continued employment as

superintendent lapsed long before the alleged deprivation of that interest when he was terminated

in August 2013. But, as previously explained in the Court’s denial of Defendants’ motion to

dismiss, this argument ignores the fact that Section 10-21.4 operated automatically to extend

Gaffey’s contract for an additional year if he did not receive written notice of the Board’s intent

not to renew his employment by April 1, 2013, which he did not.

In sum, the Court concludes that Plaintiff has established that Gaffey had a protected

property interest in his continued employment as superintendent of District 428 stemming from

Illinois statutory law. Summary judgment cannot be granted in the remaining Defendants’ favor

on that basis.

IV. Qualified Immunity

Defendants contend that even if Gaffey was deprived of a protected property interest in

his employment, they are entitled to qualified immunity from suit because their conduct in

terminating Gaffey did not violate his clearly established due process rights. Qualified immunity

protects public officials from damages liability unless the evidence shows “(1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the

time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “Put simply,

qualified immunity protects all but the plainly incompetent or those who knowingly violate the

law.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation marks omitted). The Supreme

Court has repeatedly admonished courts against “defin[ing] clearly established law at a high

level of generality.” Id. (internal quotation marks omitted). Rather, “[t]he dispositive question is

whether the violative nature of particular conduct is clearly established.” Id. (internal quotation

marks omitted). Thus, the inquiry “must be undertaken in light of the specific context of the case,

not as a broad general proposition.” Id. (internal quotation marks omitted). “Existing caselaw

must dictate the resolution of the parties’ dispute, so while a case directly on point isn’t required,

precedent must have placed the constitutional question beyond debate.” Campbell v. Kalas, 936

F.3d 536, 545 (7th Cir. 2019).

Plaintiff contends that Defendants’ conduct violated Gaffey’s clearly established right not

to be deprived of his protected interest in employment without the procedural protections set

forth by the Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532

(1985). Specifically, Loudermill held that under the Due Process Clause, there must be “some

kind of a hearing prior to the discharge of an employee who has a constitutionally protected

property interest in his employment.” Id. at 542 (internal quotation marks omitted). That

“pretermination ‘hearing,’ though necessary, need not be elaborate [and] the formality and

procedural requisites for the hearing can vary, depending upon the importance of the interests

involved and the nature of the subsequent proceedings.” Id. at 545 (internal quotation marks

omitted). However, the required hearing need only “be an initial check against mistaken

decisions” and its “essential requirements” are “notice and an opportunity to respond.” Id. at

545–46. The Seventh Circuit has elaborated that the employee must, at minimum, receive: “(1)

oral or written notice of the charges, (2) an explanation of the employer’s evidence, and (3) an

opportunity to tell his side of the story.” Staples v. City of Milwaukee, 142 F.3d 383, 385 (7th

Cir. 1998).

According to Plaintiff, because Gaffey received no Loudermill hearing whatsoever prior

to his termination, there is at least a material dispute of fact as to whether Defendants’ conduct

violated his clearly established due process rights. The Court finds Plaintiff’s argument against

qualified immunity to be flawed, however, as it frames “clearly established” law at too high a

level of generality. In essence, he argues that Loudermill entitled Gaffey to a pre-termination

hearing and because the essential elements of Loudermill are absent from this case, Defendants

are not entitled to qualified immunity. However, when viewing the evidence in the light most

favorable to Plaintiff, the Court cannot conclude that the unlawfulness of Defendants’ conduct is

beyond debate.

In the first place, it is at least contestable whether Gaffey was, in fact, denied oral or

written notice of the charges against him, an explanation of the evidence against him, and an

opportunity to tell his side of the story. Indeed, it is undisputed that prior to Gaffey’s termination,

Gaffey and Bishop communicated about the arrest precipitating Gaffey’s termination by email

and by telephone. And the parties agree that during the phone call, there were at least discussions

of Gaffey resigning. (See PRSOF ¶¶ 43–45.) Certainly, Gaffey believed that he faced the

prospect of losing his job. (PRSOF ¶¶ 47–49.) Following the phone call, Bishop asked Gaffey to

go to the Department’s Kewanee office the next day to turn in his equipment.

Defendants contend that Gaffey’s pre-termination conversations with Bishop, while

informal, were sufficient for purposes of Loudermill. In response, Plaintiff denies that those

informal discussions satisfied Loudermill’s essential requirements, particularly because there

were no post-termination procedures available to Gaffey. Plaintiff is correct that Loudermill

“rested on the fact that the terminated employees were entitled to a post-termination

hearing . . . and the Court cautioned that the existence of post-termination procedures is relevant

to the necessary scope of pre-termination procedures.” Baird v. Bd. of Educ. for Warren Cmty.

Unit Sch. Dist. No. 205, 389 F.3d 685, 690 (7th Cir. 2004) (internal quotation marks omitted).

Where “there is no provision for a post-termination hearing . . . the pre-termination hearing

[must] provide all the procedural safeguards to which due process entitles a tenured public

employee.” Swank v. Smart, 898 F.2d 1247, 1256 (7th Cir. 1990).

Unfortunately for Plaintiff, Gaffey failed to see the pre-termination process through.

After his phone call with Bishop, he did not go to the Kewanee office the next day as planned

and never returned to work. Although Gaffey assumed from his phone call with Bishop that he

was being fired, he does not dispute that he was not actually fired until the Board’s emergency

meeting on August 26—after he failed to appear at the Kewanee office and had been absent from

work for days. “Ordinarily, when an employer offers a pretermination hearing and the employee

fails to accept, the Loudermill right to such a hearing is waived.” Ryan v. Ill. Dep’t of Child. &

Fam. Servs., 185 F.3d 751, 761 (7th Cir. 1999); see also Cliff v. Bd. of Sch. Comm’rs, 42 F.3d

403, 414 (7th Cir. 1994) (“[T]he right to . . . a [pre-termination] hearing generally is waived

when an employer offers a pre-termination hearing and the employee fails to accept.”). Plaintiff

claims that Gaffey had only been absent a short period of time before the Board met to fire him,

and therefore there is at least a genuine dispute of material fact as to whether he waived his right

to a hearing. But, for purposes of the qualified immunity analysis, the Court cannot find that

Defendants should have known they were violating Gaffey’s due process rights by moving

forward with his termination after he had been out-of-contact for days. See Sonnleitner v. York,

304 F.3d 704, 716 (7th Cir. 2002) (explaining that to defeat qualified immunity, a plaintiff must

show that the right violated was “clearly established at the time of the alleged violation, so that a

reasonable public official would have known that his conduct was unlawful”).

Ultimately, Plaintiff had the burden of coming forward with “a closely analogous case

decided prior to the challenged conduct” to demonstrate a violation Gaffey’s clearly established

rights. See id. at 716. It is not enough for Plaintiff to point to Loudermill and say Gaffey was

denied notice and an opportunity to be heard. Rather, Plaintiff must show that under the facts

here, the violation of his due process rights is beyond debate. Those facts involve a public

employee whose employer learned of that employee’s arrest, leading to discussions about that

employee’s resignation. Before those discussions could come to a resolution, the employee

ceased all contact and failed to report to his job for several days, resulting in an emergency

meeting at which the employee was formally terminated. Notably, Plaintiff does not cite a single

case analogous to these facts. By contrast, Defendants come forward with several cases showing

that it was reasonable for Defendants to conclude that Gaffey had waived any pre-termination

hearing by abruptly ceasing all communication with his employer. For that reason, Defendants

are entitled to qualified immunity and summary judgment in their favor.

CONCLUSION

For the foregoing reasons, Plaintiff's motion for summary judgment (Dkt. No. 60) is

denied and Defendants’ motion for summary judgment (Dkt. No. 57) is granted. The Court

grants summary judgment in favor of Defendants on the federal due process claims in Counts I

and II and dismisses Counts IV and V without prejudice to Plaintiff pursuing available state

remedies.

ENTERED:

Dated: March 31, 2021 autcb pd.

Andrea R. Wood

United States District Judge

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