Sonnleitner, Harold v. York, Stanley

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-3966

HAROLD E. SONNLEITNER,

Plaintiff-Appellant,

v.

STANLEY YORK, JOANN O’CONNOR,

KATHLEEN BELLAIRE, KATHY

KARKULA and JOE LEANN,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00-C-1046—Rudolph T. Randa, Chief Judge.

____________

ARGUED APRIL 11, 2002—DECIDED SEPTEMBER 12, 2002

____________

Before CUDAHY, DIANE P. WOOD, and EVANS, Circuit

Judges.

CUDAHY, Circuit Judge. Harold Sonnleitner is a nurse

at the Winnebago Mental Health Institute, a state-run

psychiatric facility. In 1995, Sonnleitner was charged

with a series of work rule infractions. A predisciplinary

hearing was held, and shortly thereafter he was demoted

to a non-supervisory position. On appeal, the Wisconsin

Personnel Commission determined that there was only

evidence to support one work rule violation and that

a five-day suspension was the appropriate discipline.

After the Institute implemented the suspension but failed

2 No. 01-3966

to reinstate him to a supervisory position, Sonnleitner

commenced an action in Wisconsin state court to enforce

the Commission’s ruling. He also filed a claim for damages,

pursuant to 42 U.S.C. § 1983, against the Institute

and various state officials, alleging the violation of his

procedural due process rights under the Fourteenth Amend-

ment. The defendants then removed this matter to fed-

eral court.

During summary judgment proceedings, Sonnleitner

conceded that his state law claim was barred on proce-

dural grounds due to his failure to comply with a service

of process requirement of Wisconsin law. The district

court subsequently ruled that the individual defendants

were entitled to qualified immunity and that Sonnleitner

could not state a valid claim under § 1983 because he no

longer had a right to be reinstated under state law. Sonn-

leitner now appeals only adverse judgments on the fed-

eral law claims. For the following reasons, we AFFIRM.

I.

The Winnebago Mental Health Institute is located in

Winnebago, Wisconsin, and is operated by the Wisconsin

Department of Health and Family Services (WDHFS).

Sonnleiter has been employed by the Institute since

1980. In 1988, he was promoted to the position of “Nurs-

ing Supervisor 1/Nurse Manager” in charge of the Foren-

sic Behavior Treatment Center. On October 25, 1994,

Sonnleitner was given a three-day suspension for mak-

ing inappropriate sexual remarks about a patient in

the presence of a female co-worker, who found them

offensive, unwelcome and harassing. Sonnleitner appealed

this action to the Wisconsin Personnel Commission.

On December 4, 1995, when the appeal of the first

disciplinary action was still pending, three incidents

occurred which form the basis for Sonnleitner’s eventual

No. 01-3966 3

demotion. First, Sonnleitner placed gum balls in the day-

room of the unit. Although there was no formal policy

on gum balls, this action was considered problematic

because it could interfere with patient discipline and

medication. Second, Sonnleitner permitted a “Level 1”

patient to attend a special luncheon for occupational

therapy patients. Third, Sonnleitner escorted three pa-

tients to a laboratory for DNA testing under a newly

enacted state sexual predator law. Patients had a right

to refuse to take the test, and two of the patients tended

to be very resistant to the test. Sonnleitner briefly ex-

plained the test to the three patients and promised them

a “treat” if they agreed to cooperate. Before returning to

the unit, Sonnleitner took the three patients to the “Big

Canteen” and bought them ice cream. Indulging the

patients in this way allegedly interfered with the Insti-

tute’s behavior treatment program, which allowed privi-

leges commensurate with a patient’s acceptable behavior.

On the following day, these incidents were reported to

Kathleen Bellaire, Director of Nursing. Bellaire subse-

quently began a formal inquiry, which included a written

statement of events from the Program Director who re-

ported the incidents, a fact-finding meeting and the logging

of detailed complaint notes. On December 13, 1995, Sonn-

leitner received three memoranda from Bellaire (each

corresponding to one of the three incidents we have de-

scribed) notifying him he was being charged with viola-

tions of Work Rule #1 and that a predisciplinary meet-

ing would be held in her office on December 18.

According to a formal, contemporaneous summary pre-

pared by Bellaire, four people attended the December 18

predisciplinary meeting: Sonnleitner, Bellaire, Kathy

Karkula (Director of Human Resources) and Dan Leeman

(Management Support). Sonnleitner was given the oppor-

tunity to address each of the three specific charges. How-

ever, Bellaire ultimately found his reasons for his actions

4 No. 01-3966

unpersuasive. After discussing Sonnleitner’s statements,

the summary concludes:

Clearly work rule one was violated when Sonnleitner

bought three patients a treat at the canteen with his

own money. It also appears that his decision making

in these situations is in violation of the program and

set up an untherapeutic atmosphere on the unit where

he is the “Good Guy” and his fellow staff are the “En-

forcers.”

The summary also stated that “[i]t appears that he has

been unable to resolve his negative feelings about the

program director and is purposely thwarting her author-

ity to the detriment of the patients and his own staff.”

Following the meeting, Sonnleitner was immediately

suspended with pay.

During the next several days, Bellaire conducted ad-

ditional fact-finding meetings and interviewed various

other staff members. On December 19 and 20, Bellaire

logged notes of her interviews with three Institute employ-

ees, which generally corroborated her earlier findings

and were, according to her summary notes, partially at

odds with the statements made by Sonnleitner two

days earlier. Another fact-finding meeting was held on

December 28, which was attended by Bellaire, Karkula and

Mary Howard, the Program Director who initially re-

ported the three incidents. In a formal, contemporaneous

summary of this meeting, Bellaire recounted Howard’s

version of the three incidents at issue as examples of

the corrosive effect Sonnleitner was having on her unit.

In addition to the three specific incidents, Howard com-

plained that Sonnleitner’s involvement with activities in

the unit was minimal, that he rarely attended treatment

conferences and, when he did, his participation was mini-

mal, and that he appeared to spend an inordinate amount

of time in the day-room watching television.

No. 01-3966 5

Upon completing her investigation, Bellaire prepared

a disciplinary recommendation report (Bellaire report)

that enumerated four specific work rule violations. The

first three offenses involved the three patient incidents

we have discussed. The report concluded that these three

incidents violated Rule #1, which prohibits all employees

from engaging in the following acts: “Disobedience, insub-

ordination, inattentiveness, negligence, or refusal to carry

out written or verbal assignments, directions, or instruc-

tions.” The fourth offense was based on allegedly inac-

curate and incomplete information that Sonnleitner had

provided during his predisciplinary hearing. The report

concluded that this conduct violated Rule #7, which re-

quires an employee to provide “accurate and complete

information” whenever required to do so by management.

However, below the specification of the four violations,

the Bellaire report included a paragraph that referenced

three potentially more serious examples of misconduct,

which seemed to echo the allegations made by Mary

Howard during the December 28, 1995, fact-finding meet-

ing. According to this paragraph, Sonnleitner had: (a) “neg-

lect[ed] his duties as nursing supervisor to the point

where staff found it necessary to go to the program direc-

tor for information and decisions which they had pre-

viously gone to their nurse manager for”; (b) “failed to

participate in treatment activities on the unit such as

patient review and treatment conferences”; and (c) “spent

much of his time daily in the day room area watching TV.”

The report went on to read, “Many of these performance

issues were addressed in a focussed [sic] PPDR during

1995. The focussed [sic] PPDR also included working

cooperatively with the program director in unit decision

6 No. 01-3966

making[,] which he clearly has not done.”1 The report

then concluded with a recommendation that Sonnleitner

be involuntarily demoted to a staff nurse position.

On January 2, 1996, this report was forwarded to Stanley

York, Director of the Institute, who concurred in the

decision to demote Sonnleitner. The following day, Sonn-

leitner was informed in person of this action. He was

also given a letter from York, which stated that he

was being demoted for “failure to meet supervisor and

administrative duties and violations of DH&SS Work

Rules #1 and #7.” (emphasis added).2 The thrust of Sonn-

1

The PPDR document is the WDHFS’s “Performance Planning

and Development Report,” which is part of a standard annual or

semi-annual evaluation process mandated by Wis. Stat. § 230.37.

After the 1994 incident involving Sonnleitner’s inappropriate

sexual remark, Bellaire recommended a “concentrated PPDR” as

part of the Institute’s response. This document, which presumably

is the same as the “focussed PPDR” mentioned in the Bellaire

report, found that Sonnleitner was meeting all of his job re-

quirements. However, it included the criticism that Sonnleitner

“could offer more comments” during treatment conferences, pa-

tient review, shift reports and staff meetings.

2

During the course of the litigation below, the reasons for

Sonnleitner’s demotion have not been consistently described. For

example, in the interim decision issued by the Wisconsin Person-

nel Commission, the finding of facts directly quote the text from

the demotion letter stating that Sonnleitner was being demoted

for (1) the failure to meet supervisor and administrative require-

ments, which presumably corresponds to the unenumerated para-

graph in the Bellaire report, and (2) the violations of Work Rules

#1 and #7. See Sonnleitner v. Department of Health & Family

Serv., Nos. 94-1055-PC, 96-0010-PC, slip op. at 4, ¶11 (Wis.

Personnel Comm. Feb. 8, 2000). However, in its legal analysis, the

Commission states, “[The WDHFS] demoted [Sonnleitner] to

Nurse Clinician 2 for violating work rules 1 and 7 . . . .” Id. at 13.

(continued...)

No. 01-3966 7

leitner’s procedural due process claim is that he was only

accorded a predisciplinary hearing for the three Rule

#1 violations, but not for the Rule #7 offense or for the

unenumerated charges. Notwithstanding his objections,

Sonnleitner agreed to accept a new position as a unit

staff nurse in order to protect his employment with the

state.

Sonnleitner appealed his demotion to the Wisconsin

Personnel Commission, which consolidated the matter

with the earlier appeal. On February 18, 2000, the Com-

mission issued an interim decision, which affirmed the

three-day suspension for the 1994 incident. However, the

Commission also concluded that Sonnleitner had commit-

ted only one Rule #1 violation (the ice cream incident)

and that there was insufficient evidence that Sonnleitner

had violated Rule #7. Therefore, under a policy of pro-

gressive discipline, the Commission held that a five-day

suspension was an appropriate punishment and that the

demotion to a non-supervisory position was excessive

discipline. Although the Commission’s findings of fact

section directly quoted the three unenumerated offenses

from the Bellaire report, the Commission’s legal analysis

indicated that Sonnleitner’s demotion was predicated

only on the three Rule #1 violations and the one Rule #7

violation. See note 2, supra. Therefore, in practical effect,

the Personnel Commission seemed to adopt the WDHFS’s

2

(...continued)

In contrast, the district court stated that “[t]he alleged Rule 7

violations were: (1) providing inaccurate and incomplete informa-

tion during his predisciplinary meeting, (2) neglecting duties as

nursing supervisor, (3) failing to participate in treatment activi-

ties on the unit . . . and (4) spending much of his time in the day

room area watching television.” See Sonnleitner v. York, No. 00-C-

1046, slip op. at 2 n.2 (E.D. Wis. Oct. 17, 2001). The district

court’s categorization of the rule violations is plainly incorrect.

8 No. 01-3966

position that Sonnleitner had been charged with only

four work rule violations (rather than seven).3

The Personnel Commission’s opinion and order became

final on April 19, 2000. Sonnleitner was informed of this

decision, and he was sent a Notice of Appeal Rights. Upon

remand, the Institute implemented the five-day suspen-

sion but did not reinstate Sonnleitner to his former super-

visory position. Institute officials rejected Sonnleitner’s

request to become a Unit Director, reasoning that his pre-

demotion position of Nurse Manager no longer existed

and that it had no obligation to place him in another

position. In response to an inquiry made by Sonnleitner’s

lawyer, an attorney from the WDHFS sent a letter on

May 3, 2000, stating that the State would be in full com-

pliance with the Commission order by permitting Sonn-

leitner to remain in his current position at the Institute,

where he was actually paid more money than in his

former job. The claim of increased pay was correct; Sonn-

leitner shielded himself from the adverse economic effect of

his demotion by requesting a transfer to the night shift,

where he earned a pay premium.

3

We cannot conclude that the Wisconsin Personnel Commission

failed to analyze the issues squarely before it. Based on our

examination of the record, it is clear that the WDHFS attempted

first to justify the demotion by reference to the three Rule #1

violations, essentially abandoning the Rule #7 violation as a basis

for action. Thus, the WDHFS took the position that Sonnleitner

had been charged only with a total of four violations. Although

Sonnleitner’s brief in the proceeding before the Personnel Com-

mission complained that Bellaire included the unenumerated

charges in her recommendation report for the purpose of obtain-

ing York’s assent to a demotion, this argument has obvious

strategic limitations; insofar as the purpose of this proceeding

was to reverse an improper demotion, Sonnleitner was undoubt-

edly better off challenging the fact rather than the method of

his demotion.

No. 01-3966 9

On June 19, 2000, Sonnleitner commenced an action in

Wisconsin state court to enforce the Commission’s ruling.

He also filed a § 1983 claim for damages against the

WDHFS and four Institute supervisors (individually and

in their official capacities), alleging that he was deprived

of his right to a supervisory position without due process

of law. Defendants subsequently removed this action

to federal court and there filed a motion to dismiss and

for summary judgment.

During the district court proceedings, it soon became

apparent that Sonnleitner’s state law claim had been

extinguished by a procedural error. Under Wisconsin law,

if Sonnleitner wished to appeal the Institute’s interpreta-

tion of the Commission’s order, he had to file and serve

his complaint within 60 days of the failure to comply

with the order. See Wis. Stat. § 230.44(4)(c). Although he

filed on time, he served the complaint on the Chairman of

the Personnel Commission instead of on the proper party,

Joe Leann, the Secretary of the WDHFS. By the time

he corrected the error on July 10, 2000, the time for ser-

vice of process under Wisconsin law had expired. In his

reply brief in the district court, Sonnleitner agreed with

the defendants that Sonnleitner’s state law claim was

barred on procedural grounds. However, he simultane-

ously argued that “Section 1983 provides [the plaintiff]

with all the remedies he is seeking.”

The district court construed Sonnleitner’s statements

in his reply brief as an abandonment of any cause of

action based on state law and, therefore, dismissed the

state law claim. The district court also granted summary

judgment for defendants on the § 1983 claims, ruling

that they were entitled to qualified immunity in their

individual capacity because it was objectively reasonable

for the defendants not to hold predisciplinary hearings

with respect to all the alleged rule infractions. The district

court also granted the WDHFS’s motion to dismiss, ruling

10 No. 01-3966

that, since Sonnleitner has no right to be reinstated un-

der state law, he could not state a federal cause of action

under § 1983. Sonnleitner now appeals only the federal

law claims based on the deprivation of procedural due

process.

II.

A grant of summary judgment is reviewed de novo.

Strasburger v. Bd. of Educ., Hardin County Cmty Unit Sch.

Dist. No. 1, 143 F.3d 351 (7th Cir. 1998). Under Rule 56(c),

summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). A grant of a motion to

dismiss is also reviewed de novo. Slaney v. Int’l Amateur

Athletic Fed’n, 244 F.3d 580, 597 (7th Cir. 2001).

This case presents one central issue for review, which

we must first address before turning to two related sub-

sidiary issues. The major issue is whether Sonnleitner

was deprived of his procedural due process rights when

the Institute demoted him without a predisciplinary hear-

ing as to all of the alleged misconduct referred to in the

demotion letter. In the posture of summary judgment, in

which we are required to view all facts, and make

all reasonable inferences, in Sonnleitner’s favor, we believe

that Sonnleitner has adequately alleged a procedural

due process violation. Therefore, we must also consider

(a) whether the individual defendants are entitled to

qualified immunity and (b) whether Sonnleitner’s demo-

tion represents an ongoing violation of state law, such

that his official capacity claim falls within the Ex Parte

Young exception to Eleventh Amendment state immunity.

Each of these issues will be addressed in order.

No. 01-3966 11

A.

In analyzing a procedural due process claim, this court

follows a two-step process: “The first step requires us

to determine whether the plaintiff has been deprived of

a protected interest; the second requires a determination

of what process is due.” Townsend v. Vallas, 256 F.3d 661,

673 (7th Cir. 2001) (quoting Strasburger, 143 F.3d at 358).

Here, it is undisputed that Sonnleitner possessed a property

interest in his supervisory position by virtue of his employ-

ment with the state. See Wis. Stat. § 230.34 (“An employee

with permanent status in class . . . may be removed,

suspended without pay, discharged, reduced in base pay

or demoted only for just cause.”). Moving to the second step

to determine the amount of process due, we note that

Sonnleitner’s complaint does not attack the adequacy of the

full process available to him under Wisconsin law. Indeed,

Sonnleitner was accorded a full evidentiary hearing before

the Wisconsin Personnel Commission. Rather, Sonnleitner

contends that he was entitled to a predisciplinary hearing

as to all the charges contained in the Bellaire report.

As such, he argues that the December 18, 1995, predisci-

plinary meeting fell short of minimum due process re-

quirements because it focused only on the three Rule #1

violations.

To support this claim, Sonnleitner directs us to Cleve-

land Board of Education v. Loudermill, 470 U.S. 523

(1985). In Loudermill, the Court held that the procedural

due process rights of two school district employees were

violated when they were fired by their employer without

the benefit of a pre-termination hearing. Id. at 547-48.

However, contrary to Sonnleitner’s argument, Loudermill

does not mandate any hard and fast rules on the specifics

of predisciplinary due process. Rather, the Court adopted an

approach that was both flexible and fact-specific:

12 No. 01-3966

[T]he pre-termination hearing, though necessary, need

not be elaborate. We have pointed out that the formal-

ity and procedural requisites for the hearing can vary,

depending upon the importance of the interests in-

volved and the nature of the subsequent proceedings.

In general, something less than a full evidentiary

hearing is sufficient prior to adverse administrative

action.

Id. at 545 (quotations and citations omitted).

Despite his arguments to the contrary, Loudermill does

not support Sonnleitner’s procedural due process claim.

At the most fundamental level, Loudermill is factually

distinguishable, since the public employees in that case

were discharged without any pre-termination proceed-

ings. Although we do not intend to disparage the personal,

professional and financial hardship of Sonnleitner’s demo-

tion,4 this adverse employment action is in all respects

less onerous than the termination of the two workers

in Loudermill, who were unemployed—and thus un-

paid—for a year or more as they exhausted their adminis-

trative remedies. Id. at 536-37. Also, Sonnleitner was af-

forded some measure of pre-deprivation process. The

question that remains is whether the alleged imperfec-

tions or shortcomings in this process ultimately give rise

to a constitutional claim.

Several years after Loudermill, the Court revisited the

issue of predisciplinary due process in a context closer to

the present case. In Gilbert v. Homar, 520 U.S. 924 (1997),

4

The Commission determined that the Institute had “just cause”

for disciplining Sonnleitner but that the demotion was excessive

punishment. Since the Commission’s decision is not subject to

review by this court, and because it was a product of a full evi-

dentiary hearing, we accept its conclusions as true.

No. 01-3966 13

a police officer employed by a public university was arrested

in a drug raid conducted by state police and charged with

a felony. Effective immediately, he was suspended without

pay. Id. at 927. Although all criminal charges were dis-

missed five days later, the suspension remained in effect

while the university police department conducted its own

investigation. Id.

Approximately three weeks later, the officer met with

his police chief to convey his side of the story. The officer

was then informed that the state police had provided

his employer with information that was “very serious

in nature.” Id. What he was not told, however, was that

this information included a report of his alleged confes-

sion on the day of his arrest. Id. As the Court noted, “he

was consequently unable to respond to damaging state-

ments attributed to him in the police report.” Id. A week

later, after the officer had read the state police report, he

was informed that he would be demoted to the position

of groundskeeper and given backpay at the lower rate of

pay assigned to the lower position. The following day, the

officer was given the opportunity before the university

president to respond fully to the charges. The president,

in turn, sustained the charges.

The Court ultimately ruled that failure by the univer-

sity to provide the officer with a pre-deprivation (i.e., pre-

suspension) hearing did not violate procedural due proc-

ess. Id. at 933. In reaching this conclusion, the Court

noted the well-established axiom that “ ‘due process is

flexible and calls for such procedural protections as the

particular situation demands.’ ” Id. at 930 (quoting Mor-

rissey v. Brewer, 408 U.S. 471, 481 (1972)). The Court then

“balanced three distinct factors: ‘First, the private interest

that will be affected by the official action; second, the risk

of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of addi-

14 No. 01-3966

tional or substitute procedural safeguards; and finally, the

Government’s interest.’ ” Id. at 932 (quoting Mathews v.

Eldridge, 424 U.S. 319, 335 (1976)); see also Alexander v.

Wis. Dept. of Health & Family Serv., 263 F.3d 673, 688 (7th

Cir. 2001) (citing and applying three-part balancing test);

Porter v. DiBlasio, 93 F.3d 301, 306-07 (7th Cir. 1996)

(same); Colon v. Schneider, 899 F.2d 660, 670 (7th Cir.

1990) (same). This three-part framework is often referred to

as the Mathews balancing test. See, e.g., Dusenbery v.

United States, 122 S.Ct. 694, 699 (2002); Porter, 93 F.3d at

306; DeVito v. Chicago Park Dist., 972 F.2d 851, 855 (7th

Cir. 1992).

Under the first part of the Mathews balancing test,

which weighed the private interests of the officer, the

Court distinguished Loudermill by noting that “the [tem-

porary] lost income is relatively insubstantial (compared

with termination),” and that other fringe benefits such

as health and life insurance were not placed in jeopardy.

520 U.S. at 932. The Court then reasoned that the of-

ficer’s private interests were outweighed by the univer-

sity’s interest in removing from a position of high visibility

and trust a campus police officer who had been charged

with a felony. Id. Finally, in considering the risk of error

and the appropriateness of additional or alternative safe-

guards, the Court noted that the purpose of any pre-

suspension hearing would have been “to assure that

there are reasonable grounds to support the suspension

without pay.” Id. at 933. However, this additional step

was found to be unnecessary because reasonable grounds

“had already been assured by the arrest and the filing of

the charges” and that these charges emanated from “an

independent third party.” Id. at 933-34.

However, in Gilbert, the analysis of the officer’s pre-

suspension procedural due process rights did not end

the constitutional inquiry. The Court ultimately remanded

the case to the court of appeals to determine whether the

No. 01-3966 15

officer had been accorded a sufficiently prompt post-sus-

pension hearing. Id. at 935-36. This decision was based

in part on the fact that charges by the state police had

been dropped but the suspension remained in effect;

therefore, “the risk of erroneous deprivation increased

substantially.” Id. at 935.

Gilbert is relevant to the present case for at least

two reasons. First, it clarifies that the Mathews three-part

balancing test is the proper standard for analyzing a

procedural due process claim of a government employee

who has a property interest in his or her job and sub-

sequently suffers an adverse employment action, such as

a suspension or a demotion. Second, Gilbert illustrates

the point that minimum procedural due process require-

ments ultimately turn on a highly fact-specific inquiry.

When we apply the Mathews balancing test to the

unusual circumstances of Sonnleitner’s demotion, we can-

not conclude with confidence that he was afforded ade-

quate pre-deprivation process. In terms of the private

interests affected by the demotion decision, we acknowl-

edge that Sonnleitner’s case may at first glance appear to

be less pressing than the officer in Gilbert, who was sus-

pended for several weeks without pay (and thus placed

in a more precarious financial situation). However, the

only post-disciplinary process available to Sonnleitner

was his appeal to the Wisconsin Personnel Commission.

Sonnleitner notified the Commission of his intent to ap-

peal on January 25, 1996, and a hearing was eventually

convened on September 15-17, 1998. This proceeding,

which occurred more than two and one-half years after the

demotion, was Sonnleitner’s first opportunity to directly

address all of the allegations against him.

Although our inspection of the record strongly sug-

gests that settlement negotiations were substantially

16 No. 01-3966

responsible for this prolonged delay,5 there remains con-

siderable uncertainty over whether this type of admin-

istrative appeal could have been addressed quickly enough

to satisfy minimum due process requirements. In Gilbert,

the Court noted that the “length” of the deprivation is

relevant in determining what process is due. Id. at 932

(quoting Logan v. Zimmerman Brush Co., 455 U.S. 422,

434 (1982)). The Court then went on to rule that the

university was not required to convene a predisciplinary

hearing before suspending the officer without pay “[s]o

long as the suspended employee received a sufficiently

prompt postsuspension hearing.” Id. (emphasis added).

The Mathews balancing test next requires us to con-

sider the competing interests of the state. Here, we readily

acknowledge substantial factors weighing in favor of the

WDHFS. Specifically, we note that Kathleen Bellaire, as

Director of Nursing, was charged with the smooth function-

ing of Sonnleitner’s unit, including the maintenance of

5

At some point after filing his appeal, Sonnleitner retained a

lawyer. Shortly thereafter, Sonnleitner filed another complaint

with the Wisconsin Personnel Commission alleging that his

demotion was motivated by sex and handicap discrimination. (The

nature of the Sonnleitner’s alleged handicap is not part of the

record.) After some initial and unproductive settlement negotia-

tions, a pre-hearing conference with the Commission was held

via telephone on August 1, 1996, and a hearing date was then

set for December 10-12, 1996. However, this hearing was post-

poned in light of seemingly productive settlement talks. After

the parties failed to reach a settlement, and status reports were

filed with the Commission, a new hearing was set for March 3-5,

1998. But once again, the hearing was postponed to pursue

further (unsuccessful) settlement negotiations. Sonnleitner later

withdrew the employment discrimination charge. Sonnleitner’s

hearing before the Wisconsin Personnel Commission, which was

his only post-disciplinary process, finally took place on September

15-17, 1998.

No. 01-3966 17

a highly structured program of patient therapy and treat-

ment. Although Sonnleitner’s three Rule #1 violations

may involve seemingly minor misconduct with patients,

the substance of the rule prohibits “[d]isobedience, insub-

ordination, inattentiveness, negligence, or refusal to carry

out written or verbal assignments, directions, or instruc-

tions.” Insofar as Bellaire’s lengthy investigation, includ-

ing the predisciplinary meeting with Sonnleitner, led

her to the conclusion that Sonnleitner’s conduct made

him unfit as a supervisor, she was arguably justified in

recommending his demotion. Yet, Bellaire was not autho-

rized to make this decision by herself. Rather, this type

of disciplinary action ultimately required the approval of

the Institute director, Stanley York.

As we turn to the third Mathews balancing factor, which

is the risk of erroneous deprivation and the possible value

of additional procedural safeguards, the WDHFS’s case

falters. After careful review of the record, we believe

Sonnleitner makes a plausible argument when he asserts

that York would not have approved of the demotion but

for the additional allegations contained in the Bellaire

report. Bellaire completed this document on January 2,

1996, and immediately forwarded it to York. The following

day, York wrote the demotion letter, which specifically

states, “This action has been taken due to your failure

to meet supervisor and administrative duties and viola-

tion of DH&SS Work Rules #1 and #7” (emphasis added).

Despite the WDHFS’s position in subsequent litigation

that the reason for Sonnleitner’s demotion was the four

enumerated charges, on the day that York actually made

this decision, he appeared to be relying on something more.

Our inspection of the record suggests that the alleged

“failure to meet supervisor and administrative duties” is

most likely a reference to the three unenumerated charges

in the Bellaire report, which alleged that Sonnleitner

had (a) caused disruption to the nursing unit by neglecting

18 No. 01-3966

his nurse supervisory duties, (b) failed to participate in

patient review and treatment conferences, and (c) spent

much of his time watching television.

As previously noted, the basis for the three unenumerated

charges appears to be comments made by Mary Howard

during a December 28, 1995, fact-finding meeting—ten days

after Sonnleitner’s predisciplinary meeting. With only a

few exceptions, such as prison discipline cases, “[e]x parte

presentation of evidence denies due process.” Swank v.

Smart, 898 F.2d 1247, 1254 (7th Cir. 1990) (citing Greene v.

McElroy, 360 U.S. 474, 496-97 (1959)). When we compare

Bellaire’s formal, contemporaneous summary of this

meeting with the text of the report she filed only five days

later, it appears that Bellaire essentially paraphrased

Howard’s allegations and inserted them directly into the

report.6 From the record, it appears that York may have

relied upon the more serious unenumerated charges when

approving Sonnleitner’s demotion. If Sonnleitner had

first been given an opportunity to defend himself against

these more serious allegations, it is at least plausible

that York would have found the evidence inconclu-

sive and therefore withheld his approval of the demotion

decision. The veracity of the three unenumerated viola-

tions, it is important to note, was never tested by ad-

6

Compare, e.g., summary of December 18, 1996, meeting (“How-

ard describes Sonnleitner’s involvement on the unit as minimal.

She stated he rarely attends treatment conferences and when he

does attend his participation is minimal, or he leaves before the

meeting is over. When asked how Sonnleitner spends his time

Howard stated he works on the APS sheets a lot is also frequently

in the dayroom where she believes he is watching TV.”), with

Bellaire report (“[Sonnleitner] has failed to participate in treat-

ment activities on the unit such as patient review and treatment

conferences. Sonnleitner reportedly spent much of his time daily

in the day room watching TV.”).

No. 01-3966 19

versarial proceedings. In the subsequent litigation, the

WDHFS effectively disavowed them as the actual basis

for the demotion. Further, it also appears that Bellaire’s

assessment of Sonnleitner’s work rule violations (i.e., the

four enumerated charges) may have been significantly

exaggerated, since the Wisconsin Personnel Commission

ultimately determined that Sonnleitner was guilty only

of one Rule #1 violation.

The upshot of this lengthy analysis is that, risk of er-

roneous deprivation of Sonnleitner’s supervisory position

could have been significantly reduced if the Institute had

taken the relatively modest step of providing Sonnleitner

with a predisciplinary meeting on the Rule #7 violation

and the three unenumerated charges contained in the

Bellaire report. Therefore, we believe there remains a

genuine issue of material fact (a) whether York relied

on the more serious charges contained in the Bellaire

report when he approved Sonnleitner’s demotion, and

(b) whether an administrative appeal before the Wisconsin

Personnel Commission, without the delay of lengthy

settlement negotiations, could have been addressed quickly

enough to satisfy the minimum requirements of due proc-

ess.

However, before we can consider the remaining issues

of qualified immunity and the viability of Sonnleitner’s

official capacity claims, we must briefly address the

WDHFS’s misguided contention that Sonnleitner has not

suffered a legally cognizable deprivation of a protected

property interest. Relying on our decision in Bordelon v.

Chicago School Reform Board of Trustees, 233 F.3d 524

(7th Cir. 2000), the WDHFS has vigorously pressed the

argument that Sonnleitner’s procedural due process claim

must fail because Sonnleitner, by virtue of a pay premium

he receives as a staff nurse on the night shift, has suffered

no economic loss. In Bordelon, we affirmed summary

judgment for the Chicago school district because one of

20 No. 01-3966

its principals, who had been transferred to a purportedly

less desirable administrative position, “failed to offer

evidence sufficient to allow a jury to find any direct or

indirect economic harm as the result of the Board’s con-

duct.” Id. at 531.

The WDHFS’s reliance on Bordelon is misplaced for

at least two reasons. First, it is undisputed that Sonn-

leitner’s demotion involved a reduction in his base pay. The

fact that Sonnleitner offset this loss by taking a staff

position with less desirable hours (hence the pay premium)

is completely irrelevant to the underlying analysis. Second,

this court has held that “the loss of position that impedes

future job opportunities or has other indirect effects on

future income can inflict an actionable deprivation of

property.” Head v. Chicago Sch. Reform Bd. of Trustees, 225

F.3d 794, 803 (7th Cir. 2000) (citing Swick v. City of

Chicago, 11 F.3d 85, 86 (7th Cir. 1993)). In this case, it is

reasonable to assume that Sonnleitner’s demotion to a non-

supervisory position would adversely affect his upward

mobility in the future, and thus his income.

B.

The next issue presented for review is whether the

individual defendants are entitled to qualified immunity.

In order to proceed with his individual capacity claims

against Bellaire, York, Karkula and Joann O’Connor,7

Sonnleitner must (1) adequately allege the violation of a

constitutional right, and (2) that right must be clearly

established at the time of the alleged violation, so that a

7

Stanley York has retired as the director of the Institute, and

this position is now held by Joann O’Connor. Sonnleitner claims

that O’Connor continues to violate his constitutional rights by her

refusal to reinstate him as a supervisor.

No. 01-3966 21

reasonable public official would have known that his

conduct was unlawful. See Delgado v. Jones, 282 F.3d 511,

515-16 (7th Cir. 2002) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818-19 (1982)).

Under the first prong of this inquiry, we agree with

Sonnleitner that the Institute may have violated his pro-

cedural due process rights by failing to accord him a pre-

disciplinary hearing on the unenumerated (i.e., the more

serious) charges contained in the Bellaire report. How-

ever, under the second prong of the qualified immunity

analysis, Sonnleitner has failed to establish that this

right was clearly established at the time of the alleged

violation. Although Sonnleitner need not offer up a fed-

eral decision which precisely mirrors the facts of this case,

at a minimum he must point to a closely analogous case

decided prior to the challenged conduct. See Lawhe v.

Simpson, 16 F.3d 1475, 1483 (7th Cir. 1994). Sonnleitner

contends that the Supreme Court’s decision in Loudermill

clearly established his right to more exhaustive pre-disci-

plinary proceedings. However, as discussed earlier, Louder-

mill involved the termination of two public employees with-

out any pre-termination proceedings, and is therefore fac-

tually distinguishable from this case. Since Sonnleitner

bears the burden of establishing the existence of a clear-

ly established constitutional right, see Rakovich v. Wade,

850 F.2d 1180, 1209 (7th Cir. 1988) (en banc); accord

Delgado, 282 F.3d at 516; Forman v. Richmond Police Dep’t,

104 F.3d 950, 957-58 (7th Cir. 1997), and he has failed

to cite any additional authorities, we conclude the individ-

ual defendants are entitled to qualified immunity.8

8

The district court upheld the qualified immunity of the defen-

dants because it found that the decision not to convene additional

predisciplinary hearings was objectively reasonable. However, “we

may affirm the judgment of the district court on the basis of any

(continued...)

22 No. 01-3966

C.

The last issue presented for review is whether Sonn-

leitner can maintain a lawsuit against the defendants

in their official capacity in order to obtain a federal injunc-

tion mandating his reinstatement to a supervisory posi-

tion. The Eleventh Amendment provides that “[t]he Ju-

dicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens

of another State, or by Citizens of any Foreign State.” U.S.

Const., amend. XI. As the defendants correctly point out,

the Eleventh Amendment generally bars federal jurisdic-

tion over lawsuits against state officials acting in their

official capacities when the state is the real party at

interest. See MCI Telecomm. Corp. v. Illinois Bell Tel. Co.,

222 F.3d 323, 337 (7th Cir. 2000) (citing Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)).

However, there are three specific exceptions to Eleventh

Amendment state immunity to lawsuits in federal court:

(1) “Congress has abrogated the state’s immunity from

suit through an unequivocal expression of its intent to do

so through a valid exercise of its power”; (2) a state “has

properly waived its immunity and consented to suit

in federal court”; and (3) the plaintiff “seek[s] prospective

equitable relief for ongoing violations of federal law . . .

under the Ex Parte Young doctrine.” Marie O. v. Edgar,

131 F.3d 610, 614-15 (7th Cir. 1997) (citing Seminole Tribe

8

(...continued)

ground supported by the record.” Taylor v. Canteen Corp., 69 F.3d

773, 784 (7th Cir. 1995); Flynn v. Sandahl, 58 F.3d 283, 289

(7th Cir. 1995) (same). In this case, we affirm the qualified im-

munity ruling because Sonnleitner has failed to carry the burden

of demonstrating that the defendants’ conduct violated a clearly

established constitutional right.

No. 01-3966 23

of Fla. v. Florida, 517 U.S. 44, 55-56 (1996), and Ex Parte

Young, 209 U.S. 123, 159-60 (1908)).

The defendants have clearly raised the shield of Elev-

enth Amendment immunity. Unfortunately, Sonnleitner

has failed to respond to their arguments. Therefore, with

respect to the first two exceptions to state immunity,

we have no basis to conclude that either Congress has

abrogated Wisconsin’s Eleventh Amendment immunity

or that the state of Wisconsin has authorized this lawsuit

through an act of waiver or consent. Moreover, we flatly

refuse to undertake our own examination of Wisconsin

and federal law to see if such a basis exists. See United

States v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000) (“It

is not this court’s responsibility to research and construct

the parties’ arguments.”); accord Spath v. Hayes Wheels

Int’l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000).

Turning to the third exception to state immunity,

Sonnleitner’s complaint and reply brief have arguably

made allegations that are at least consistent with the

doctrine of Ex Parte Young.9 Yet, even if this argument

is fully developed, we believe that it ultimately fails. In

Verizon Maryland Inc. v. Public Service Commission of

Maryland, 122 S.Ct. 1753 (2002), the Supreme Court

held that the Ex Parte Young exception requires a “straight-

forward inquiry into whether the complaint alleges

an ongoing violation of federal law and seeks relief properly

characterized as prospective.” Id. at 1760 (quotations omit-

ted). Sonnleitner’s request for reinstatement to a super-

9

For example, Sonnleitner’s complaint asserts that the defen-

dants, in their official capacity, are “depriving him of his right

to return to a position as supervisor.” Similarly, in his reply brief,

Sonnleitner contends that injunctive relief should be granted in

this case because “O’Connor and Leann are continuing the vio-

lation of [Sonnleitner’s] right to be a supervisor.”

24 No. 01-3966

visory position can certainly be characterized as prospec-

tive relief, but we do not believe that the underlying

procedural due process claim can be reasonably construed

as “ongoing.”

Sonnleitner contends that he was improperly demoted

without a predisciplinary hearing on all of the charges

contained in the Bellaire report. Assuming arguendo that

Sonnleitner’s constitutional rights have been violated,10

the violation was not the demotion as such, but, instead,

the fact that the demotion occurred without an adequate

opportunity to be heard, either through an additional pre-

disciplinary hearing or a sufficiently prompt post-disciplin-

ary hearing. Cf. Zinermon v. Burch, 494 U.S. 113, 126

(1990) (“The constitutional violation actionable under

§ 1983 is not complete when the deprivation occurs; it is

not complete unless and until the State fails to provide

due process.”); Porter, 93 F.3d at 305 (“The presumption

is that an individual is entitled to notice and an oppor-

tunity for a hearing prior to the state’s permanent dep-

rivation of his property interest.” (emphasis added)). Had

Sonnleitner brought this lawsuit during the pendency of

his appeal before the Wisconsin Personnel Commission,

the proper remedy, depending upon the timing, would

10

The issue whether Sonnleitner was in fact denied procedural

due process is a matter that cannot be resolved in the current

summary judgment posture. It remains an issue of material fact

whether Stanley York actually relied on the more serious un-

enumerated charges contained in the Bellaire report. Similarly,

it is unclear whether the prolonged delay in convening the post-

disciplinary hearing before the Wisconsin Personnel Commission

was primarily attributable to attempts by Sonnleitner to obtain

a favorable settlement. Although we suspect that the administra-

tive review process available in this case was not “sufficiently

prompt” to satisfy the minimum requirements of procedural due

process, Gilbert, 520 U.S. at 932, that issue ultimately turns

on additional facts that are not in the record.

No. 01-3966 25

have been either a prompt post-disciplinary hearing or

reinstatement pending an opportunity to be heard. How-

ever, Sonnleitner was eventually given an opportunity

to tell his side of the story, and the Personnel Commis-

sion found it to be persuasive. The Commission deter-

mined that only one of the charges had merit and that

Sonnleitner’s demotion violated a state policy of progres-

sive discipline. Although the WDHFS arguably failed to

comply with the Commission’s decision, Wisconsin law

permitted Sonnleitner to enforce this decision through

a judicial order. See Wis. Stat. § 230.44(4)(c). But for

Sonnleitner’s failure to timely serve the Secretary of the

WDHFS, it appears likely that this process would have

restored him to a supervisory position.

The upshot of this analysis is that the allegations

against the defendants in their official capacities refer to,

at most, a past rather than an ongoing violation of fed-

eral law. Because these allegations do not fit within the

narrow exception of Ex Parte Young, the official capacity

claims are barred by the Eleventh Amendment.

III.

In summary, Sonnleitner’s Fourteenth Amendment

right to procedural due process may have been violated

when he was demoted to a staff level nursing position

without first being given an opportunity to address the

more serious allegations in the Bellaire report. Resolu-

tion of this question ultimately hinges on material facts

that are not in the record. However, remand for a trial

on the merits is unnecessary. The individual defendants

are entitled to qualified immunity because Sonnleitner

has failed to carry his burden of establishing the exis-

tence of a clearly established constitutional right to a

pre-demotion hearing as to all of the relevant charges.

Sonnleitner’s official capacity claims also fail because

26 No. 01-3966

he has failed to allege an ongoing violation of federal law.

Accordingly, we AFFIRM the judgment of the district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—9-12-02