Deen, Jerry L. v. Darosa, Timothy

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2072

JERRY L. DEEN,

Plaintiff-Appellant,

v.

TIMOTHY DAROSA, DAN KENT,

TERESA KETTLEKAMP, et al.

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02 C 3125—Richard Mills, Judge.

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ARGUED JANUARY 13, 2005—DECIDED JULY 8, 2005

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Before ROVNER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Jerry Deen, a former officer of the

Illinois State Police (“ISP”), filed this action under 42

U.S.C. § 1983, asserting that ISP officials deprived him of

a constitutionally protected property interest without due

process of law when they refused to reinstate him from

medical leave status to active duty. The district court held

that Deen had suffered a deprivation of a protected property

interest but received all the process that was due to him

under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

546 (1985).

2 No. 04-2072

We affirm, but on different grounds. Applying Buttitta v.

Chicago, 9 F.3d 1198 (7th Cir. 1993), we conclude that Deen

did not have a constitutionally protected property interest

in reinstatement per se, but, rather, had a more limited

property interest in an opportunity to demonstrate his fit-

ness for return to active duty under an ISP policy directive

that governs officers’ reinstatement from medical leave.

That policy empowers the ISP’s Medical Board to determine

the fitness for return to active duty of employees placed on

medical duty status, and prescribes the procedures to be

followed by the board in making that determination. On the

undisputed facts, it is clear that Deen was afforded all the

process he was due under the policy directive, and the

defendants were entitled to summary judgment.

I. Background

Once a sergeant in the ISP, Deen was relieved from active

duty in 1997 after officials discovered he had engaged in

improper communications with another state agency and

conduct unbecoming an officer. Deen continued to receive

his regular salary and benefits. Approximately six months

later, Deen submitted to a mandatory psychological evalu-

ation. Dr. Michael Campion examined Deen and determined

that he suffered from paranoid personality disorder and was

“emotionally incapable of performing the duties of a state

police officer.” Thus, in August 1997, Dean was placed on

medical leave and continued to receive his regular salary

and benefits. Deen’s medical leave expired in April 2000

and at that point the ISP placed him on “dock status,”

which meant that he continued to be a state police officer

but received no pay and accrued no benefits.

On May 16, 2000, Deen wrote to ISP Director Sam Nolen

to request reinstatement to active duty. The basis for

Deen’s request was a four-sentence letter from Dr. Joseph

Bohlen, Deen’s personal physician, stating summarily that

No. 04-2072 3

Deen was “capable of working in law enforcement in any

capacity.” Deen included a copy of Dr. Bohlen’s letter with

his own. On May 18, 2000, the ISP removed Deen from dock

status and returned him to paid leave with benefits. On

June 15, 2000, the ISP once again ordered Deen to undergo

a psychological evaluation. Dr. Robert Marsh conducted this

evaluation, and he opined that Dr. Campion had probably

misdiagnosed Deen’s condition back in 1997. Rather than

being the result of a paranoid personality disorder, Deen’s

psychological problems were brought on by stress and

depression caused by a bitter divorce and family trouble.

Dr. Marsh also opined that Deen still had the potential to

develop recurring depression with pseudodelusional

features that might not respond well to treatment. He

advised the ISP that if Deen were to resume active duty,

the department would have to monitor his response to

stress and provide quick, extensive support services should

there be a recurrence of his psychological problems.

In the fall of 2000, the ISP wrote to Deen and told him to

attend a meeting of the ISP’s Medical Review Board on

November 27, 2000. The board is the entity charged by the

ISP with assessing its employees’ fitness for duty; its five

voting members are among the named defendants in this

case (Nolen is the other defendant.) Under ISP regulations,

the board’s recommendations are either accepted or rejected

by the ISP Director. Deen asked to reschedule his appear-

ance before the board, and the board agreed, deferring his

appearance until January 9, 2001. However, when the

board convened on November 27 to discuss other matters,

two members recited unfavorable information about Deen,

principally the reluctance of some officers to work alongside

him because of his psychological problems.

On January 9 Deen’s case was presented to the board.

The presentation included Dr. Campion’s 1997 evaluation

of Deen concluding that he was not fit for duty; Dr. Bohlen’s

letter supporting Deen’s request for reinstatement; and Dr.

4 No. 04-2072

Marsh’s evaluation of Deen concluding that Deen was fit for

duty but had the potential to develop a recurring depression

with pseudodelusional features. After the case was pre-

sented, Deen entered the room and told the board that Drs.

Marsh and Bohlen both said he is fit for duty and that he is

ready to get back to work. According to the minutes of the

meeting, board members said nothing to Deen, and he left

the room. Deputy Director Dan Kent, a board member, then

told the board that other police officers were concerned

about Deen’s judgment and were afraid to work alongside

him. Kent also said that he considered the accommodations

required under Dr. Marsh’s assessment to be unreasonable.

The board recommended that Deen not be reinstated to

active duty and that he remain on sick leave.

On February 1, 2001, Director Nolen accepted the board’s

recommendation, denying Deen’s request to return to active

employment. Deen wrote to Nolen asking him to reconsider;

Nolen declined to reverse his decision. By June 2001 Deen

had exhausted all of his accumulated sick leave. He re-

ceived unemployment benefits until sometime in the spring

of 2002 and then retired. Deen then sued the defendants

under 42 U.S.C. § 1983, alleging that (1) he had a constitu-

tionally protected property interest in his ISP job under the

State Police Act, 20 ILCS §§ 2610/1 et seq.; (2) the defen-

dants’ denial of reinstatement was a pretense and that he

was “effectively terminated” on the basis of their belief that

he had engaged in misconduct; and (3) the procedure by

which he was terminated failed to provide adequate due

process.

The district court granted summary judgment to the

defendants, concluding that although Deen had been “ter-

minated” in 2001 and deprived of his property interest in

continued employment, his unfitness for duty was a valid

basis for termination and he was afforded adequate due

process both prior to and after the termination under the

standards enunciated in Loudermill, 470 U.S. at 546. In the

No. 04-2072 5

alternative, the court held that the defendants were entitled

to qualified immunity insofar as Deen had not shown he

had a clearly established right to anything beyond the

protections afforded to him under Loudermill. Deen ap-

pealed.

II. Discussion

Under 20 ILCS § 2610/14, ISP officers may not be removed,

demoted, or suspended except for cause, and only following

the examination and hearing procedure set forth in the

statute. Deen was not removed, demoted, or suspended from

the ISP; he was put on paid administrative leave and then

on paid medical leave. Nonetheless, Deen asserts that the

1997 action placing him on leave status deprived him of a

constitutionally protected property interest without due

process. That is wrong, as the district court properly held,

because Deen’s salary and benefits remained at their pre-

vious levels while he remained on administrative leave; a

job action that causes no pecuniary loss whatsoever does

not implicate the Constitution. Townsend v. Valls, 256 F.3d

661, 676 (7th Cir. 2001); Swick v. Chicago, 11 F.3d 85, 86

(7th Cir. 1993); see also Luellen v. East Chicago, 350 F.3d

604, 613-14 (7th Cir. 2003) (loss of eligibility for “on-call

pay” not a cognizable property right under the Due Process

Clause).

The 2001 job action is somewhat different. In that year

the defendants refused to reinstate Deen to active duty,

effectively keeping him on paid medical leave until his pay

and benefits eventually ran out. The district court treated

the refusal to reinstate as a “termination” which deprived

Deen of a protected property interest, relying upon what it

regarded as the defendants’ concession of the issue. How-

ever, a court is not bound to accept a concession when the

point at issue is a question of law. “ ‘While . . . concessions

are often useful to a court, they do not, at least as to ques-

6 No. 04-2072

tions of law that are likely to affect a number of cases in the

circuit beyond the one in which the concessions are made,

relieve this Court of the duty to make its own resolution of

such issues.’ ” United States v. Westmoreland, 240 F.3d 618,

633 (7th Cir. 2001) (quoting Strauss v. United States, 516

F.2d 980, 982 (7th Cir. 1975)); see also Saviano v. Comm’r

of Internal Revenue, 765 F.2d 643, 645 (7th Cir. 1985)

(parties may not stipulate to legal conclusions to be reached

by the court). The question whether a particular job action

against a public employee implicates a constitutionally

protected property interest is a question of law; “[p]roperty

interests are not created by the Constitution, ‘they are

created and their dimensions are defined by existing rules

or understandings that stem from an independent source

such as state law.’ ” Loudermill, 470 U.S. at 538 (quoting

Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). In the

context of public employment, a “unilateral expectation” on

the part of the public employee “will not suffice” to create a

protected property interest; “a property interest is not

legally cognizable unless a person has a ‘legitimate claim of

entitlement’ to the benefit.” Buttitta, 9 F.3d at 1202 (quoting

Roth, 408 U.S. at 577).

Deen did not have a legitimate claim of entitlement to

reinstatement to active duty service from medical duty

status; the defendants’ refusal to reinstate him was not the

equivalent of termination. It did not lead to termination or

even in the short term to a diminution in pay or benefits.

Instead, it led to his remaining on medical leave, a status

that accorded him full pay and benefits. True, Deen’s medi-

cal leave was self-limiting and, absent a later reinstate-

ment, Deen was eventually going to exhaust his benefits.

But the conclusion of Deen’s employment was not inevita-

ble; and in any event, the eventual exhaustion of medical

leave pay and benefits does not mean that Deen had a

legitimate claim of entitlement to reinstatement to active

duty.

No. 04-2072 7

Deen argues that the defendants’ actions were largely a

pretense, and that he was terminated not for medical rea-

sons but because he was accused of misconduct. If this were

a disciplinary termination, Deen would be owed the process

set forth in 20 ILCS § 2610/14, which prescribes the rights

of officers accused of misconduct and sets forth the proce-

dures to be followed if the ISP seeks the officer’s removal,

demotion, or suspension. We recognize that the distinction

between disciplinary and medical proceedings in the public

employment context are susceptible to manipulation by a

public employer who, for whatever reason, prefers not to

proceed against an employee in a disciplinary setting. But

Deen has not presented any evidence that the ISP’s ap-

proach to his reinstatement from medical leave was a

pretext for removing him because of misconduct.

Our decision in Buttitta is directly on point and controls

this case. Buttitta held that the Chicago Police Department’s

refusal to reinstate one of its officers to active duty due to

a liver condition did not deprive that officer of a constitu-

tionally protected property interest. Buttitta, 9 F.3d at

1203. Buttitta’s property interest in returning to work from

medical duty status was conferred by a provision in the

Illinois Pension Code setting forth the procedure to be fol-

lowed in determining whether an officer receiving disability

benefits should be returned to active duty. Id. Rather than

conferring a full-fledged, constitutionally protected property

interest in reinstatement to active duty, we held that the

statute “creates in police officers a property interest in

being returned to the department for an opportunity to

demonstrate their fitness for active duty.” Id. at 1204. The

interest in an opportunity to demonstrate fitness is sub-

stantially less weighty than an interest in reinstatement

itself. Police officers seeking reinstatement may not be

deprived of the opportunity to demonstrate their fitness, we

concluded, but because the department had fulfilled all its

obligations to Buttitta under the statute, we held that he

had received all the process he was due. Id. at 1205.

8 No. 04-2072

In Deen’s case the ISP’s obligations to employees on

medical status who seek reinstatement are set forth in a

policy directive titled “Medical Duty” and denominated

“PER-038.” It states that “[t]he ISP may assign employees

to medical duty when there is sufficient evidence of their

inability to perform at full duty and provide a mechanism

for determining when the employee should return to full

duty status.” It then lays out the parameters of medical

duty status and the composition, duties, and procedures of

the Medical Review Board, the entity charged with moving

employees into and out of medical duty status. As relevant

to Deen’s case, the directive provides that an employee may

appear before the board to present pertinent facts, testi-

mony, records, and reports regarding his case. It states that

the board may request additional documentation from

personal physicians, specialists, and the like. All recommen-

dations made by the board are forwarded to the ISP

Director for approval. An employee who disagrees with the

decision may submit a written appeal to the Director within

ten days of receipt of the decision.

From the record before us it is clear that Deen received

the process due to him under the ISP’s policy directive.

Deen received notice of the November 27 meeting of the

board, which was rescheduled to January 9, 2001 at his re-

quest. He appeared before the board and had the opportu-

nity to provide it with information and documents. The

board had before it the medical reports from the doctors

who examined Deen. As required by the policy directive, the

board forwarded its recommendation to Nolen, the ISP

Director, who made the ultimate decision not to reinstate

Deen. Deen appealed to Nolen for reconsideration of the

decision, as was his prerogative. Each step of the process

that resulted in the denial of Deen’s reinstatement request

conformed to the dictates of PER-038.

Because under Buttitta Deen did not have a constitution-

ally protected property interest in reinstatement itself, but,

No. 04-2072 9

rather, had a more limited interest in an opportunity to

establish his fitness for return to active duty, he was not

owed the full complement of due process protections set

forth in Loudermill. This conclusion makes it unnecessary

for us to address Deen’s challenge to the district court’s

conclusion that the ISP’s procedures provided sufficient pre-

termination notice and opportunity to be heard under

Loudermill. There is also no need to consider the

defendants’ claims of qualified immunity. The judgment of

the district court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-8-05