The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3630
KELLY BAIRD,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION FOR WARREN COMMUNITY
UNIT SCHOOL DISTRICT NO. 205, JO DAVIESS
COUNTY, ILLINOIS, MONICA STEPHAN, ANALISA
CLEARY, JUDY GATES, MARY VINCENT, JOSEPH
GREEN, DONALD HILL, and ROBERT LETHLEAN,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Western Division.
No. 00 C 50228—Philip G. Reinhard, Judge.
____________
ARGUED SEPTEMBER 14, 2004—DECIDED NOVEMBER 12, 2004
____________
Before CUDAHY, ROVNER and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. Here we confront the question
whether a state breach of contract action provides adequate
due process to protect the rights of a school superintendent
facing termination, whose pre-termination hearing fell short
of due process requirements. For the reasons to be set forth,
we conclude that, in the circumstances presented, it does
2 No. 03-3630
not. We also hold that the superintendent to be terminated
did not waive his procedural due process claim by attending
his pre-termination hearing only to object to its procedures.
Accordingly, we reverse.
I.
The parties to this conflict are the dual centers of au-
thority that guide public education throughout the country.
On the one hand is the school board, representing the people,
and on the other hand, the school board’s selected operating
leader of the schools, the superintendent. In 2000, plaintiff
Kelly Baird was hired by the Warren County School District
No. 205 Board of Education to serve as Superintendent and
Principal under a three-year contract that provided he could
be dismissed only “for cause.” (Superintendent/Principal
Employment Contract at A.7.) The contract broadly defined
“cause” as “any conduct, act, or failure to act by the Super-
intendent which is detrimental to the best interests of the
School District.” (Id. at A-8.) The contract also provided that
reasons for discharge were to be given in writing to the
Superintendent, who would then be entitled to notice and
a pre-termination hearing before the Board to discuss the
merits. (Id.)
Early in the school year, Baird found himself under close
scrutiny by certain Board members, who in conjunction with
their observations, began to collect a variety of deprecatory
comments about Baird and his activities from secretaries,
teachers and other district employees. This on-the-sly in-
vestigation of the new Superintendent continued throughout
the school year until April of 2001, when the accumulated
tidbits of derogation were distilled into the form of Baird’s
annual performance review. Pursuant to the contract, on
April 18, 2001, the Board presented Baird with its evalua-
tion of his performance and a letter that notified him of its
intent to terminate him for cause for the reasons contained
No. 03-3630 3
in the evaluation and advised him of a hearing to consider
his termination to take place on May 16, 2001.
Upon receiving this letter, Baird contacted his attorney,
who promptly responded to the Board by letter requesting
a continuance, copies of underlying documents, the names
of individuals who had provided information included in the
employment evaluation and the recusal of certain “biased”
Board members who had led the investigative efforts against
Baird. The Board in its reply denied these requests and
stated further that it would not call witnesses, that it would
not identify the individuals whose claims had provided the
substance of the employment evaluation, that it could not
compel any district employees to attend the hearing, that
Baird was only entitled to “notice and the opportunity to be
heard” and that Baird could question Board members only
as to issues about which those members had spoken. In the
final communication between the parties, which took place
on the day of the hearing, Baird’s attorney objected to the
hearing procedures specified by the Board as unfair. That
evening, when the Board convened to discuss his termi-
nation, Baird appeared with his attorney to protest what he
claimed to be contractual and due process violations, and he
then departed. The Board proceeded to consider Baird’s
termination in his absence, and predictably voted to end
what had become an acrimonious employment relationship.
Thereafter, it forwarded to Baird a copy of its Resolution of
Termination.
Having been fired without receiving what he considered
to be a fair hearing, Baird brought an action in state court
seeking damages against the Board pursuant to 42 U.S.C.
§ 1983, alleging that the Board’s termination procedures
violated his right to procedural due process. Baird claimed
that certain Board members were biased against him and
could not have served as neutral decision makers. He also
asserted a breach of contract claim under Illinois law. After
the Board removed the case to federal court, Baird filed a
4 No. 03-3630
motion for partial summary judgment as to liability on his
due process claim alleging an insufficient hearing, and the
Board and Board members filed a motion for summary
judgment on all claims. Thus, there were cross-motions on
all issues save the issue of biased decision makers.
The district court granted the Board’s motion and declined
to exercise supplemental jurisdiction over Baird’s common
law breach of contract claim, remanding it back to state
court. Citing Cleveland Board of Education v. Loudermill,
470 U.S. 532, 546 (1985), the District Court stated that,
provided there was a full due process hearing after termi-
nation, a pre-termination hearing need only provide notice
of the charge, an explanation of the basis of the charge and
an opportunity to respond. Baird’s pre-termination hearing
had satisfied these requirements. The district court con-
cluded that here the state suit for breach of contract met due
process requirements. In addition, the district court rejected
Baird’s allegations of bias, finding that his evidence had not
overcome the presumption that Board members were acting
in the public interest and that their concerns had stemmed
from Baird’s job performance and not personal animosity.
The issue here is whether a state breach of contract suit
provides due process if the pre-deprivation hearing does not.
We also turn to the question whether a public employee
waives the right to challenge a pre-termination hearing on
due process grounds when he attends the hearing only to
object to its procedures.
II.
In reviewing a grant of summary judgment, we review the
district court’s determination de novo. New Burnham
Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d 1474,
1477 (7th Cir. 1990).
No. 03-3630 5
A.
We agree with the district court’s determination that the
Board members’ decision to terminate Baird was not tainted
with bias. While the conduct of certain Board members
appears to have been petty and maladroit, this seems to
have been more a matter of modus operandi and style than
of substantial prejudice. We are not persuaded, however,
that the Board’s procedures were entirely fair. The trun-
cated pre-termination hearing afforded to Baird could
comport with due process only if he received full due process
promptly after termination. The error here was in determin-
ing under what circumstances a breach of contract suit can
afford due process.
There can be no due process without “the opportunity to
be heard ‘at a meaningful time and in a meaningful man-
ner.’ ” Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). A hearing
“appropriate to the nature of the case” must precede the
“deprivation of life, liberty or property.” Loudermill, 470 U.S.
at 541 (internal citations omitted). A court considering what
process is due in a specific situation must weigh three fac-
tors: “[f]irst, the private interest that will be affected by the
official action; second, the risk of erroneous deprivation of
such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safe-
guards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement
would entail.” Mathews, 424 U.S. at 545.
1.
The Supreme Court has long recognized that a public
employee can have a constitutionally protected property
interest in continued employment; such interests “are cre-
ated and their dimensions are defined by existing rules or
6 No. 03-3630
understandings that stem from an independent source such
as state law . . . .” Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972); Colburn v. Tr. of Indiana Univ., 973 F.2d 581, 589
(7th Cir. 1992) (“Property interests exist when an em-
ployer’s discretion is clearly limited so that the employee
cannot be denied employment unless specific conditions are
met.”). Applying the Mathews test to determine that
terminated school district employees were not entitled to
full pre-termination hearings in Loudermill, the Supreme
Court stated that a pre-termination hearing need only be
“an initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to
believe that the charges against the employee are true and
support the proposed action.” Loudermill, 470 U.S. at 546.
The Court’s holding, however, rested on the fact that the
terminated employees were entitled to a post-termination
hearing before the Ohio Personnel Board, and the Court
cautioned that “the existence of post-termination proce-
dures is relevant to the necessary scope of pre-termination
procedures.” Id. at 546-47.
Our own Seventh Circuit precedent likewise establishes
that, when there is an opportunity for a full post-termina-
tion hearing, due process does not require an employer to
provide full “trial-type rights” such as the right to present
or cross-examine witnesses at the pre-termination hearing.
Staples v. City of Milwaukee, 142 F.3d 383, 387 (7th Cir.
1998). See also Head v. Chicago Sch. Reform Bd. of Tr., 225
F.3d 794, 803 (7th Cir. 2000) (when full post-termination
procedures are available, public employer must provide a
public employee with a protected property interest with pre-
termination notice, explanation of evidence and a chance to
tell his side of the story).
The issue in the case before us is whether a post-termina-
tion lawsuit for breach of contract can remedy the full due
process deficiency in the pre-termination proceedings.
Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189 (2001), is
No. 03-3630 7
the leading Supreme Court case addressing this question.
With respect to Lujan, the question of when a judicial rem-
edy like this provides adequate post-termination due process,
as the district court found, is elusive. A fine line distinguishes
factual scenarios in which a judicial remedy for breach of
contract is adequate from those in which it is not. Not all
injuries are equal, and not all parties can be made whole
through a breach of contract action. The somewhat obscure
quality that separates one from the other is important and
yet eludes precise definition. The Supreme Court has referred
to this mysterious element as a “present entitlement,” and
identifies cases involving this factor as ones in which “the
claimant was denied a right by virtue of which he was pres-
ently entitled either to exercise ownership dominion over
real or personal property, or to pursue a gainful occupation.”
Lujan, 532 U.S. at 196. See also DeBoer v. Pennington, 287
F.3d 748, 750 (9th Cir. 2002) (quoting Lujan’s definition of
“present entitlement”) and Canby, J., concurring (distin-
guishing Perry v. Sindermann, 408 U.S. 593 (1972), which
involved, like the present case, the due process protection
of a personal property interest in employment).
A present entitlement is immediately distinguishable
from the contractual interests dealt with in Lujan and its
progeny. In Lujan, the state of California withheld funds
from a public works subcontractor and imposed penalties
after receiving notice that the subcontractor had violated
provisions of the state Labor Code. The Supreme Court
characterized the subcontractor’s interest as merely a con-
tractual interest, a “deprivation of payment that it contends
it is owed under a contract” that could be adequately
protected through a breach of contract suit. Lujan, 532 U.S.
at 196. Moreover, the Supreme Court contrasted the subcon-
tractor’s interest with two illustrative examples of present
entitlements in the employment context:
In Barchi [Barry v. Barchi, 443 U.S. 55 (1979)] we held
that a racetrack trainer suspended for 15 days on sus-
8 No. 03-3630
picion of horse drugging was entitled to a prompt post-
deprivation administrative or judicial hearing. 443 U.S.
at 63-64. And in Mallen, [FDIC v. Mallen, 486 U.S. 230
(1988)] we held that the president of a Federal Deposit
Insurance Corporation (FDIC) insured bank suspended
from office by the FDIC was accorded due process by a
notice and hearing procedure which would render a deci-
sion within 90 days of the suspension. 486 U.S. at 241-
243. See also Sniadach v. Family Finance Corp. of Bay
View, 395 U.S. 337 (1969) (holding that due process
requires notice and a hearing before wages may be
garnished).
Id.1 The postdeprivation remedies appropriate to the depri-
vation of an interest to which there is a present entitlement
are characterized by promptness and by the ability to re-
store the claimant to possession. The underlying concept
seems to be that the remedy is available before the loss has
become complete and irrevocable.
A state law breach of contract action is not an adequate
post-termination remedy for a terminated employee who
possesses a present entitlement and who has been afforded
only a limited pre-termination hearing. Id. While it does
provide a species of due process, a lawsuit does not satisfy
the requirement of promptness, which is essential if the em-
ployee is to pursue time-sensitive remedies such as rein-
statement. While there is no specific time frame within
which a hearing must be held to qualify as “prompt,” lack
of a speedy resolution to proceedings may result in a denial
1
Similarly, in applying Lujan’s holding to the property interest
of the former managers of a city-owned cemetery whose man-
agement contract was terminated by the city, the Ninth Circuit
reasoned that because the “contract here has not given rise to
greater interest than the contract itself,” the deprivation was a
mere contractual injury that could be adequately protected by a
state breach of contract suit. DeBoer, 287 F.3d at 750.
No. 03-3630 9
of due process. Loudermill, 470 U.S. at 547. See also DeVito
v. Chicago Park Dist., 972 F.2d 851 (7th Cir. 1992) (holding
that post-termination hearing must be “prompt” and that,
under guidelines for determining promptness for post-sus-
pension hearing enunciated in FDIC v. Mallen, 486 U.S. 230
(1988), a year’s delay in holding a post-termination hearing
did not deny terminated public employee due process). Sim-
ilarly, while there is no automatic right to reinstatement, it
is “normally an integral part of the remedy for a consti-
tutionally impermissible employment action.” Reeves v.
Claiborne County Bd. of Educ., 828 F.2d 1096, 1101 (5th Cir.
1987).2 Cf. United Food & Commercial Workers Local 100A
v. John Hofmeister & Son, Inc., 950 F.2d 1340 (7th Cir. 1991)
(“Reinstatement and back pay awards are common reme-
dies in wrongful discharge cases.”). Further, as the Sixth
Circuit has noted, “employment, especially in a career such
as education, is more than a way to make money; it is a
profession with significant non-monetary rewards,” and con-
sequently money damages may be a “hollow victory.” Banks
v. Burkich, 788 F.2d 1161, 1164 (6th Cir. 1986) (citing Allen
v. Autauga County Bd. of Educ., 685 F.2d 1302, 1306 (11th
Cir. 1982)). Thus, when a public employee terminated for
cause has a present entitlement, and when the only avail-
able post-termination remedy is the opportunity to bring a
state breach of contract suit, the pre-termination hearing to
which such an employee is entitled must fully satisfy the
due process requirements of confrontation and cross-ex-
amination in addition to the minimal Loudermill require-
ments of notice and an opportunity to be heard.
2.
2
While Reeves involved a teacher challenging a reassignment on
the grounds that it violated the First Amendment, the Fifth
Circuit’s treatment of reinstatement applies here as well.
10 No. 03-3630
After reviewing the facts of this case, we conclude that
Baird has established his present entitlement. Baird’s in-
terest is distinguishable from those in Lujan and its progeny;
he was terminated in the first year of a three-year contract,
and had a protected property interest in remaining in office
under his contract for its full term and in being compen-
sated accordingly.3 See Lujan, 532 U.S. at 196. Baird’s present
entitlement also meant that he was entitled to pursue
reinstatement promptly if his rights had been violated.
Accordingly, the Board was obligated to provide a pre-ter-
mination hearing that fully complied with due process. This
it failed to do.
The Board takes credit for “generous” pre-termination
hearing procedures to a degree such that one might envision
the proceedings as a veritable cornucopia of due process
protections. In reality, however, the Board’s gestures seem
to have been just that—gestures. While Baird was ostensi-
bly afforded the opportunity to call and question witnesses,
the Board effectively emasculated this provision by refusing
to furnish him with the names of district employees who had
acted as undercover school board informants. Baird was also
allowed to question Board members—but only about
matters as to which they had spoken. What the Board gave
to Baird with the left hand, it seemed to take away with the
right, leaving Baird with a pre-termination hearing that
may have satisfied a bare-bones Loudermill standard, but
little else.4 And the Board has offered no reason why more
3
Because we have held that a pecuniary loss is an actionable
deprivation of property, we need not reach the issue whether the
termination’s adverse effect on Baird’s future employment pros-
pects is also an actionable deprivation. Head, 225 F.3d at 803
(citing Swick v. City of Chicago, 11 F.3d 85, 86-88 (7th Cir. 1993)).
4
This finding is supported by an application of the factors
enunciated in Mathews. The threat of loss of livelihood coupled
(continued...)
No. 03-3630 11
generous measures under the Mathews criteria might have
been difficult or impossible to supply.
We are aware that Baird presumably does not now as a
practical matter pursue reinstatement as a remedy. How-
ever, this does not alter our analysis. The kind of remedies
that conform to due process must be available promptly and
must generally include the possibility of reinstatement.
Otherwise they are not adequate to address the loss of a
present entitlement.
4
(...continued)
with an opportunity to promptly pursue reinstatement are the
primary private concerns of a public employee who stands to be
terminated, although the impact of a ‘for cause’ termination on
future employment prospects is serious as well. A public employee
has a right to verify the accuracy of the purported cause(s) of ter-
mination. The opportunity to confront and cross-examine accusers,
a cornerstone of our adversary system, assists in resolving dis-
putes over facts giving rise to the termination or indeed over whether
the termination itself is merited, and so is key to preventing the
deprivation of a constitutionally protected property interest. While
the right to confront and cross-examine witnesses is not absolute
in the civil context under Catlett v. Woodfin, 13 Fed. Appx. 412 (7th
Cir. 2001), such an opportunity must be afforded to terminated
public employees with present entitlements, whose pre-termina-
tion hearings must fully comport with due process when no other
procedural safeguards exist. Finally, it is expensive and time-
consuming to hire and fire, and so the government also has an
interest in verifying that the purported “cause” of termination is
legitimate. It is more efficient to ensure that a pre-termination
hearing comports with due process when an employee to be
terminated “for cause” possesses a present entitlement than it is
to defend a lawsuit.
12 No. 03-3630
3.
In reaching this conclusion, we find persuasive the rea-
soning of McClure v. Independent School District No. 16, 228
F.3d 1205 (10th Cir. 2000), in which a principal terminated
under a one-year contract was afforded only a minimal pre-
termination hearing in which the district attorney presented
live witnesses and sought to introduce accusatory affidavits
from identified district employees. The Tenth Circuit found
that the terminated principal was entitled to confront and
cross-examine those individuals “whose work deprives a
person of his livelihood.” McClure, 228 F.3d at 1211. McClure
underscores the importance of cross-examination here, for
the opportunity for confrontation was even more fully denied
here where Baird was deliberately prevented from ascer-
taining the identities of his accusers.
Moreover, Seventh Circuit precedent is to the same effect.
We have never held that a state breach of contract action
provides a terminated public employee with adequate due
process when that employee possessed a present entitlement.
The present case is immediately distinguishable from other
cases cited by the Board. The Board’s invocation of Strasburger
v. Board of Education, Hardin County Community Unit
School District, 143 F.3d 351 (7th Cir. 1998), is simply not
persuasive since Strasburger, primarily concerned with sub-
stantive due process, essentially held that a terminated
public employee challenging his termination on procedural
due process grounds need only show that he had been
deprived of a protected interest and that there had been a
failure of due process. Id. at 358. Where a present entitle-
ment is involved, a post-deprivation breach of contract suit
cannot adequately remedy due process deficiencies.
The Board’s reliance on Schacht v. Wisconsin Department
of Corrections, 175 F.3d 497, 503 (7th Cir. 1999), and
Papapetropoulous v. Milwaukee Transport Services, Inc.,
795 F.2d 591 (7th Cir. 1986), is similarly unavailing. Schacht
No. 03-3630 13
is inapposite because in that case we held that a terminated
prison guard possessed adequate due process remedies under
Wisconsin law because he could pursue reinstatement, back
pay, attorneys’ fees and costs through the Wisconsin
Personnel Commission. 175 F.3d at 503. Papapetropoulous
involved a terminated bus driver who was held not to have
been denied due process when a federal arbitrator cut short
his cross-examination of an emotionally distraught witness
in a federal pre-termination arbitration hearing convened
under union guidelines. 795 F.2d at 598-600. We stated in
the purest dicta that a plaintiff with a protected property
interest who has an adequate state remedy is not deprived
of due process, and noted that the driver could have brought
a breach of contract action in state court against his em-
ployer. Id. at 601 n.14. Papapetropoulous, which clarified
when a contract suit is adequate, predates Lujan by fifteen
years and is distinguishable on several grounds: it reviewed
an arbitrator’s decision in a pre-termination hearing held
pursuant to a union contract; Papapetropoulous did not
challenge the adequacy of a state breach of contract action
as a post-termination remedy and was afforded a hearing
that provided due process; the language at issue was foot-
note dicta, quite unnecessary to our holding.
B.
Resolving the central issue whether Baird’s pre-termina-
tion hearing provided adequate due process does not end
our inquiry. We must also address an issue that is dear to
the heart of every lawyer seeking to bolster more elaborate
arguments: waiver. The Board not unpersuasively argues
that Baird waived the right to contest the adequacy of his
pre-termination hearing on due process grounds when he
failed to attend the hearing. In response, Baird contends
that he did attend the hearing to object to its procedures,
and, moreover, claims that he was not legally required to
14 No. 03-3630
attend to preserve his right to object when he had received
advance notice that the hearing would be merely a kangaroo
court.
We have frequently held that terminated employees who
do not avail themselves of pre-termination hearings waive
their right to contest the adequacy of such hearings. See
Fern v. Thorpe Pub. Sch., 532 F.2d 1120, 1131-32 (7th Cir.
1976) (holding schoolteacher to be terminated for cause
waived his claim of procedural due process violation when he
knew the time, place and purpose of the pre-termination
hearing before the school board but chose not to attend after
conferring with his counsel) (internal citations omitted).
Baird’s conduct seems to lie somewhere between the green
of attendance and the red of nonattendance. Baird did not
participate in the discussion of the merits held at the
hearing, but he and his attorney had requested the Board
to implement procedures comporting with due process;
when the Board refused Baird’s requests, he attended the
hearing, but remained only to object to the procedures. It
would be difficult to see this as a default that automatically
waives further objection as a matter of law.
Although the issue may be close, we conclude that Baird
did not waive his right to contest the adequacy of the hear-
ing on due process grounds. The obvious deficiency of the
procedures offered in the instant case, and the fact that
Baird did appear to state his objection to these procedures,
distinguishes it from Fern and similar cases. Seventh Circuit
authority establishes only that the right to object to an ar-
guably deficient hearing is waived when an employer offers
a pre-termination hearing and a public employee facing
termination fails to accept the offer by failing to appear.
Ryan v. Illinois Dep’t of Children & Family Serv., 185 F.3d
751, 761 (7th Cir. 1999). See also Flynn v. Sandahl, 58 F.3d
283, 288 (7th Cir. 1995) (“employee cannot claim lack of due
process when his employer offered him such a pre-termina-
tion hearing and he refused to attend.”); Cliff v. Bd. of Sch.
No. 03-3630 15
Comm’rs of City of Indianapolis, 42 F.3d 403, 414 (7th Cir.
1994) (“the right to such a hearing is waived when an em-
ployer offers a pre-termination hearing and the employee
fails to accept.”). Here, Baird did not fail to accept the hear-
ing but appeared and sought to obtain a fairer one; he did
attend for the purpose of objecting to the truncated pro-
cedures. The Board apparently had no intention of relaxing
its procedural strictures. And the hearing would still have
missed full due process by a country mile: even if Baird had
learned of the informants’ identities at his hearing, it would
have been too late to confront and cross-examine them. He
would still have been forced to construct a blind defense.
Ignorant of the identities of his accusers, Baird would likely
have been terminated whether or not he chose to participate
in the hearing after objecting to its procedures, and it is hard
to see how he could mount a rational defense without more
information about the charges. Offering such a toothless
procedure may have met minimum Loudermill require-
ments if there had been full post-termination due process,
but it is hard to see Baird’s limited participation as a
waiver as a matter of law.
Precedent establishes that, when a pre-termination hear-
ing is offered, “the offeree should assume that it will be a
fair hearing until the offeror indicates otherwise.” Fern, 532
F.2d at 1133 (citing Suckle v. Madison Gen. Hosp., 499 F.2d
1364, 1367 (7th Cir. 1974). Baird contends that he was not
obligated to participate in the hearing because the presump-
tion of fairness evaporated after the Board notified him of
the hearing procedures and denied his request for additional
procedures. This argument may overstate the appropriate
position. Fern and Suckle are silent as to the propriety of
conduct after a presumption of a fair hearing is apparently
belied by the offeror’s conduct. We believe the presumption
of fairness continues and the plaintiff bears the risk of
waiver, but under the present facts, when the plaintiff has
requested reasonable safeguards and has been flatly denied
16 No. 03-3630
both before and at the hearing and where nothing useful
could apparently be gained by continuing participation, we
will not find a waiver as a matter of law.
C.
Having found that the Board is not entitled to summary
judgement on the issue of violation of Baird’s due process
rights and that Baird did not waive, as a matter of law, his
right to contest the adequacy of the hearing on due process
grounds, we turn finally to the question, which was not ad-
dressed by the district court, whether the Board members
qualify for absolute or qualified immunity. Absolute immun-
ity attaches to “all actions taken in the sphere of legitimate
legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44, 54
(1988). The Board contends that its individual members are
absolutely immune from liability since various discrete
actions in firing Baird—namely the determination of rules
and procedures, participation in the pre-termination hear-
ing and individual decisions to terminate Baird—were
legislative acts. The issues raised by this appeal are, how-
ever, a totality involving the termination of an employee,
which is an administrative act. The evidence does not estab-
lish that the Board members are entitled to legislative
immunity.
Nor do Board members appear to be entitled to qualified
immunity, which protects public officials who exercise dis-
cretionary or policymaking functions from liability in dam-
ages. Billings v. Madison Metro. Sch. Dist., 259 F.3d 807,
815-16 (7th Cir. 2001). The district court did not reach this
issue. However, public officials are entitled to qualified
immunity if their actions violate “clearly established
statutory or constitutional rights then known to a reason-
able officer.” Id. at 16. Under the two-step analysis enunci-
ated by the Supreme Court in Saucier v. Katz, 531 U.S. 194,
201 (2001), we first assess whether “the state actor’s
No. 03-3630 17
conduct violated a constitutional right when viewed in the
light most favorable to the party asserting the injury.” If
such a violation exists, we must determine whether the
right violated was clearly established. Id.
We have already found that the Board violated Baird’s
due process rights by according him a hearing whose pro-
cedures were severely deficient. Thus, we proceed directly
to the question whether Baird’s rights were clearly estab-
lished. We conclude that they are. A right must be established
at the “appropriate level of specificity before a court can
determine if it was clearly established.” Wilson v. Layne,
526 U.S. 609, 615 (1999). Our inquiry is defined by whether
“it would be a clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Saucier, 531
U.S. at 202. Qualified immunity thus affords public officials
a certain leeway in their actions; “the concern of the im-
munity inquiry is to acknowledge that reasonable mistakes
can be made as to the legal constraints on particular . . .
conduct.” Id. at 205. Reduced to its essential elements, if
the public official’s “mistake as to what the law requires is
reasonable, the official is entitled to the immunity defense.”
Id.
Determining the reasonableness of a “mistake” does not
necessitate comparison to a precedent that squares in every
detail with the present case. See Ulichny v. Merton Comm.
Sch. Dist., 249 F.3d 686, 706 (7th Cir. 2001) (“It is not nec-
essary for liability, however, that an identical factual situ-
ation had been legally decided adverse to the officer.”). As
earlier discussed, numerous cases from Perry v. Sindermann
to Loudermill to Lujan—a case the defendants rely on to
justify their conduct—have defined the contours of what
process is due to a public employee who is to be terminated.
Given the quality and volume of this precedent, we cannot
determine on this record that the Board’s conduct was a
reasonable mistake, thereby establishing the defense of
qualified immunity.
18 No. 03-3630
III.
It is always pleasant when the troublesome process of ter-
minating an employee whose job performance is perceived
as unsatisfactory can be concluded with a polite handshake
and a heartfelt “fare-thee-well.” Unfortunately, that ideal
firing most often remains just that—an ideal. Here, not only
did goodwill go by the boards but elementary fairness fell
through the cracks. A lawsuit for breach of contract simply
does not provide the due process which is missing elsewhere
when a present entitlement is at stake.
For the above reasons we REVERSE and REMAND for
further proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-12-04